Johnson v. Syracuse City Auditor

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert W. Johnson
v. Civil No. 24-cv-285-LM-AJ
Syracuse City Auditor
REPORT AND RECOMMENDEDATION
Pro se plaintiff Robert W. Johnson, appearing in forma
pauperis, filed a complaint (Doc. No. 1) against the Syracuse,
New York, City Auditor. Mr. Johnson’s complaint is before the
undersigned magistrate Judge for preliminary review. See LR
4.3(d)(2) and 28 U.S.C. § 1915(e)(2).
Standard of Review
The magistrate judge conducts a preliminary review of
pleadings, like Mr. Johnson’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 construes pro se complaints liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The complaint
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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).
Factual Allegations
Mr. Johnson alleges that, on August 19, 2024 in Syracuse,
New York, he was “discriminated against for whistleblower probes
due to his race, sex, financial status, alleged criminal
history, retaliation and disability . . . .” Compl. (Doc. No.
1) at 4. He seeks over $100 million in damages.
Discussion
Federal venue law states, in pertinent part, that a civil
action may only be brought in “a judicial district in which any
defendant resides, if all defendants are residents of the State
in which the district is located,” or in “a judicial district in
which a substantial part of the events or omissions giving rise
to the claim occurred, or a substantial part of property that is
the subject of the action is situated.” 28 U.S.C. § 1391(b)(1)-
(2); 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. Rowe, No. 20-cv-417-LM, 2021 WL 1581781, at *1 (D.N.H.
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Mar. 5, 2021) (cleaned up), R & R adopted, 2021 WL 1581013
(D.N.H. Apr. 22, 2021); see also Wilkinson v. Sec'y, Fla. Dep't
of Corrs., 622 F. App'x. 805, 808–09 (11th Cir. 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).
Mr. Johnson’s complaint contains no allegation of any
connection between the District of New Hampshire and the events
and parties named in the complaint that would satisfy the venue
requirements of federal law. Accordingly, the district judge
should dismiss this action in its entirety, without prejudice,
for improper venue.1
1 Under 28 U.S.C. § 1406(a), which is applicable to cases
brought in an improper venue, a case may be transferred, in lieu
of dismissal, if the transfer is in the interest of justice. The
court concludes that a transfer of this case is not in the
interests of justice because: (i) the events giving rise to this
case occurred on September 6, 2024; consequently Mr. Johnson’s
claims will not be barred by a statute of limitations if filed
in the proper forum; (ii) the complaint does not allege facts
showing that the claims are likely to have merit; and (iii) Mr.
Johnson has a history of filing frivolous litigation and is
subject to filing restrictions in numerous jurisdictions. See
Johnson v. Bitrategaming, No. 5:22-cv-448-GTS-TWD, Report and
Recommendation and Order, (Doc. No. 5) (N.D.N.Y. May 11, 2022
(and cases cited therein), accepted and adopted, (N.D.N.Y. June
21, 2022) (Doc. No. 7). Such a restriction exists in the United
States District Court for the Northern District of New York,
which, according to the sparse allegations in the complaint,
might be an appropriate venue. See In Re: Robert W. Johnson, No.
5:22-pf-3-BKS, Pre-Filing Order (Doc. No. 4) (N.D.N.Y. May 19,
2022). The court is not inclined to transfer a case to a court
where the plaintiff in under such a filing restriction.
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Conclusion
Based on the foregoing, the district judge should dismiss
this case for improper venue, without prejudice to being re-
filed in an appropriate forum. The Clerk of Court should then
enter judgment and close the case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. The
objection period may be extended upon motion. Failure to file
any objection 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). Only those issues
raised in the written objections “are subject to review in the
district court,” and any issues “not preserved by such objection
are precluded on appeal.” Id. (cleaned up).
SO ORDERED.
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
September 30, 2024
cc: Robert Johnson, pro se
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