(PS) Lamptey v. County of Orange California, No. 2:2008cv01956 - Document 18 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/28/10 RECOMMENDING that this action be transferred to the Central District of California. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(PS) Lamptey v. County of Orange California Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 IVAN MOSES LAMPTEY, 11 12 13 Plaintiff, No. CIV. S-08-1956 GEB EFB vs. COUNTY OF ORANGE CALIFORNIA, FINDINGS AND RECOMMENDATIONS 14 Defendant. 15 16 / This case, in which plaintiff is proceeding in propria persona, was referred to the 17 undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 18 302(c)(21). On December 15, 2008, the court granted plaintiff’s request to proceed in forma 19 pauperis, but dismissed plaintiff’s complaint and amended complaint, and granted plaintiff leave 20 to file a second amended complaint. Dckt. No. 4. On December 23, 2008, plaintiff filed a 21 second amended complaint, and on June 4, 2009, the court dismissed that complaint with leave 22 to file a third amended complaint. Dckt. Nos. 5, 11. 23 On June 18, 2009, plaintiff filed a third amended complaint. Dckt. No. 12. Plaintiff’s 24 third amended complaint alleges “among other things, negligence and misconduct resulting in 25 various civil rights violation[s], for actions taken by [County of Orange] employees and or 26 agents acting on behalf of the County of Orange California.” Dckt. No. 12 at 1. Plaintiff 1 Dockets.Justia.com 1 contends that jurisdiction is proper because plaintiff alleges a claim under 28 U.S.C. § 1983, and 2 that venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(3), because “defendant is an 3 officer or employee of the United States or any agency thereof. . . .” Id. at 2. 4 Because plaintiff is appearing pro se, this court has liberally construed his pleadings. 5 Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the 6 federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.” (citing Boag v. 7 MacDougall, 454 U.S. 364, 365 (1982) (per curiam))). However, even construing the third 8 amended complaint liberally, because it appeared that the Eastern District of California is an 9 improper venue for plaintiff’s claims, on November 16, 2009, the undersigned ordered plaintiff 10 to show cause why this action should not be dismissed or transferred for improper venue. Dckt. 11 No. 16 (citing Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (stating that the court may 12 raise defective venue sua sponte where defendants have not yet filed a responsive pleading and 13 the time for doing so has not run)). 14 Pursuant to 28 U.S.C. § 1406(a), a “district court of a district in which [a case is filed] 15 laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, 16 transfer such case to any district or division in which it could have been brought.” 28 U.S.C. 17 § 1406(a). Actions in which plaintiff has alleged a federal question may “be brought only in (1) 18 a judicial district where any defendant resides, if all defendants reside in the same State, (2) a 19 judicial district in which a substantial part of the events or omissions giving rise to the claim 20 occurred, or a substantial part of property that is the subject of the action is situated, or (3) a 21 judicial district in which any defendant may be found, if there is no district in which the action 22 may otherwise be brought.” 28 U.S.C. § 1391(b). Section 1391(c) provides that “a defendant 23 that is a corporation shall be deemed to reside in any judicial district in which it is subject to 24 personal jurisdiction at the time the action is commenced,” and that “[i]n a State which has more 25 than one judicial district and in which defendant that is a corporation is subject to personal 26 jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in 2 1 any district in that State within which its contacts would be sufficient to subject it to personal 2 jurisdiction if that district were a separate State . . . .” Id. § 1391(c). Section 1391(e) does not 3 apply to plaintiff’s action because defendant County of Orange is not “an officer or employee of 4 the United States or any agency thereof. . . .” 28 U.S.C. § 1391(e). 5 In response to the order to show cause, plaintiff acknowledges that “the most pivotal 6 actions undertaken by the defendant” took place in the Central District of California. Dckt. No. 7 17 at 3. Plaintiff contends, however, that defendant’s actions have affected him “while residing, 8 working and conducting business in Sacramento County, where he has lived without interruption 9 since June of 2003, to include the arrest by proxy on or about September 30, 2007; while within 10 the Sacramento County, and the subsequent series of events that have transpired as a result of 11 that arrest by proxy, to include plaintiff finally being made aware of the totality of the events 12 undertaken by defendant to interfere and intrude on plaintiff’s quality of life while he resided in 13 Sacramento County, that are the true cause of the action.” Id. 14 Although plaintiff now contends that defendant’s conduct has affected him while he has 15 resided in Sacramento, plaintiff’s third amended complaint does not allege any events or 16 omissions occurring in the Eastern District of California; rather, the majority of the events giving 17 rise to plaintiff’s claims occurred in the County of Orange, which is located in the Central 18 District of California. Specifically, plaintiff contends that defendant issued an improper warrant 19 in the County of Orange (count one); incarcerated plaintiff in the County of Orange without a 20 timely arraignment (count two); the County of Orange improperly sent plaintiff to a federal 21 correctional facility in Arizona (count three); and that defendant breached contracts, was 22 negligent, and engaged in professional misconduct (counts four through seven). Dckt. No. 12. 23 Additionally, the County of Orange resides in the Central District of California, and not in the 24 Eastern District of California; to the extent that the County of Orange is deemed a corporation, 25 plaintiff has not shown that its contacts within the Eastern District of California would be 26 sufficient to subject it to personal jurisdiction in this district. 3 1 Therefore, IT IS HEREBY RECOMMENDED that this action be transferred to the 2 Central District of California. See Schotz v. Koch, 2009 WL 1505676 (D. Haw. May 28, 2009) 3 (transferring action for lack of venue at the in forma pauperis stage); Doe v. Mitchell, 2009 WL 4 838050 (D. Nev. Mar. 26, 2009) (dismissing action for lack of venue at the in forma pauperis 5 stage); Larson v. Ching, 2008 WL 5054714 (D. Mont. Nov. 25, 2008) (transferring action for 6 lack of venue at the in forma pauperis stage); Alexandria v. United States, 2007 WL 2947461, *1 7 (S.D. Cal. 2007) (dismissing action for lack of venue at the in forma pauperis stage). 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: April 28, 2010. 16 17 18 19 20 21 22 23 24 25 26 4
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