Hart v. Three Unnamed New York City Policemen et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart, Sr.
v. 	Case No. 20-cv-778-SM
Three Unnamed New York City
Police Officers, et al.
REPORT AND RECOMMENDATION
Before the court is the complaint (doc. no. 1) and amended
complaint (Doc. No. 4) 1 filed by pro se and in forma pauperis
plaintiff Kenneth Hannibal Hart, Sr. 	The complaint is before
this magistrate judge for preliminary review under LR 4.3(d)(2)
and 28 U.S.C. § 1915(e)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Hart’s, that are filed in forma pauperis. 	See
LR 4.3(d). 	The magistrate judge may recommend to the district
judge that one or more claims be dismissed if, among other
things, the court lacks jurisdiction, a defendant is immune from
the relief sought, or the complaint fails to state a claim upon
which relief may be granted. 	See 28 U.S.C. § 1915(e)(2); LR
4.3(d). 	In conducting its preliminary review, the court
1 The amended complaint added additional defendants, rather
than claims. 	The court considers both documents in its
preliminary review.
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construes pro se complaints liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). 	The complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). 	The court treats as true all well-pleaded
factual allegations, and construes reasonable inferences in
plaintiff’s favor. 	See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Background
Invoking both diversity and federal question jurisdiction,
28 U.S.C. §§ 1331, 1332, plaintiff Kenneth Hannibal Hart, Sr.
sued several New York City Police Officers, the City’s Police
Department and Police Commissioner, the Mayor of New York City
and the Governor of New York State. 2 	Plaintiff claims that the
defendant police officers stole certain money from him, and the
remaining defendants inadequately trained those officers, and
then failed to investigate or prosecute them.
Venue
Venue is appropriate in the judicial district where all of
the defendants reside, or where a substantial part of the events
giving rise to the plaintiff’s claims occurred. 28 U.S.C. §
2 On March 24, 2021, the court granted plaintiff’s motion to
dismiss multiple defendants and add two additional defendants,
leaving the defendants described above in the case. 	(Doc. No.
6).
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1391(b). 	Where the defense of improper venue is “obvious from
the face of the complaint and no further factual record is
required to be developed, the court may, sua sponte, dismiss the
case.” 	Hart v. United States Dep’t of the Treasury, No. 14-cv-
421-LM, 2016 U.S. Dist. Lexis 25871, at *3-4, 2016 WL 825739, at
*2 (D.N.H. Jan. 11, 2016) rept. & rec. adopted, 2016 U.S. Dist.
Lexis 25876, 2016 WL 865224 (D.N.H. Mar. 2, 2016) (internal
quotation marks omitted) (citing Cox v. Rushie, No. CA 13–11308–
PBS, 2013 U.S. Dist. LEXIS 86794 at *14, 2013 WL 3197655 at *4
(D. Mass. June 18, 2013) (quoting Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006))); see also Wilkinson v. Sec'y, Fla.
Dep't of Corrs., No. 14–11239, 2015 U.S. App. LEXIS 12160 at *4–
*5, 2015 WL 4269267 at *2 (11th Cir. July 15, 2015) (court may
dismiss a matter, sua sponte, for defective venue, pursuant to
28 U.S.C. § 1915, after providing plaintiff with opportunity to
object).
Here, the complaint indicates that all defendants are
located in New York, that the acts plaintiff complains of took
place in New York, and that plaintiff is seeking to have New
York officials correct certain court and criminal records.
Accordingly, venue is not proper in this court. 	The case should
be dismissed, without prejudice to plaintiff filing it in an
appropriate court.
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Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint because venue over Hart’s claims is not
proper in this court. 	Such dismissal should be without
prejudice to plaintiff re-filing it in a court of proper venue.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court's order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
cc: 	Kenneth H. Hart, Sr., pro se
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