Swiger v. United States of America et al, No. 3:2015cv01996 - Document 4 (D. Or. 2015)

Court Description: Order and Findings & Recommendation: Application for Leave to Proceed IFP is granted. Findings & Recommendation: Complaint 2 should be dismissed without prejudice. Objections to the Findings and Recommendation are due by 12/3/2015. Signed on 11/16/2015 by Magistrate Judge Thomas M. Coffin. (plb)

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Swiger v. United States of America et al Doc. 4 UNITED STATES DISTRICT COURT DISTRICT OF OREGON DONALD RAY SWIGER, JR. 3:15-cv-1996-TC Plaintiff, v. FINDINGS AND RECOMMENDATION THE UNITED STATES OF AMERICA, et al., Defendants. COFFIN, Magistrate Judge.· Plaintiff's Application tp proceed in forma pauperis (#1) is allowed. However, for the reasons set forth below, plaintiff's complaint should be dismissed without service of process on the grounds of lack of jurisdiction and failure to state a claim. Plaintiff alleges that he is currently incarcerated at the Lompoc Federal Correctional Institution and that prior to being transferred to Lompoc he was incarcerated at the Fort 1 - FINDINGS AND RECOMMENDATION Dockets.Justia.com Leavenworth Military Prison in Leavenworth, Kansas. Plaintiff's claims have to do with the conditions of his confinement at Lompoc F.C.I. - which is located in the Central District of California, and seeks injunctive relief against "federal Employees of Lompoc F.C.I." 1 A state may exercise nonresident defendant between the Volkswagen V. jurisdiction if there exists defendant Corp. personal and the Woodson, "minimum contacts forum 444 over state. U.S. 286 a II World-Wide (1988).. A defendant's contacts with the forum state must be such that maintenance of the suit there does not "offend traditional notions of fair play and substantial justice" and the relationship between the defendant and the forum must be such that it is "reasonable *** to require the (defendant) defend a particular lawsuit which is brought there. to World- Wide Volkswagen, supra, at 292. A defendant is subject to suit where it "purposefully avail itself of the conducting activities within the forum state." privilege of Id. at 297. See also, Burger King Corp. V. Rudzewi.cz, 471 U.S. 462 (1985). statute is appropriate if within the bounds of federal due process. Due Jurisdiction under Oregon's long-arm process permits the exercise of general jurisdiction over a 1 Although the only named defendants are the United States of America, "The Secretary of the Army," and "Colonel Erica Nelson, Commandant, USDB," Leavenworth, Kansas. 2 - FINDINGS AND RECOMMENDATION defendant who has 11 substantial 11 or contacts with the forum state. Risks, Ltd., 796 F.2d 299, 11 continuous and systematic" Fields v. Sedgwick Associated 301 (9th Cir. 1986), citing Helicoptoros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 (1984); Gray & Co. V. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990); Cross v. Kloster Cruise Lines, Ltd., 879 F. Supp 1304, 1310 (D. Or 1995). Plaintiff has not alleged that any of the "federal employees of Lompoc" against whom he seeks injunctive relief have had any substantial or continuous and systematic contacts with the state of Oregon, and no such contacts are apparent from the record before the court. In short, this court has no jurisdiction over plaintiff's claims and no personal jurisdiction over the defendants. Plaintiff's complaint should be dismissed without prejudice to bring an action in the appropriate jurisdiction. The Clerk of the Court should be directed to enter a judgment dismissing this proceeding. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4 (a) (1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this 3 - FINDINGS AND RECOMMENDATION recommendation objections fourteen within with ( 14) objections. the which court. to file specific Thereafter, the written parties have days within which to file a response to the Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. :form an Any appea1 Recommendation or order adopting judgment dismissing this this Findings case wou1d be £rivo1ous and not taken in good :faith. DATED this of November, 2015. Thomas United 4 - FINDINGS AND RECOMMENDATION and Judge

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