Nelson v. Allen Gamble Correctional Facility et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANTHONY NELSON, 	)
)
Plaintiff, 	)
v. 	) 	Case No. CIV-24-1350-G
)
ALLEN GAMBLE 	)
CORRECTIONAL FACILITY 	)
et. al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Anthony Nelson (Plaintiff), an Oklahoma prisoner proceeding pro se,1
brings this action complaining about “fake disbursement[s]” from his prison
trust fund account. Doc. 1.2 United States District Judge Charles Goodwin
referred 	this 	matter 	to 	the 	undersigned 	Magistrate 	Judge 	for 	initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). See Doc. 3.
Having conducted a preliminary review of the complaint pursuant to 28 U.S.C.
§ 1915A(a), the undersigned recommends the Court dismiss the case without
prejudice for lack of venue.
1 	The Court construes Plaintiff’s 	pro 	se filings 	liberally. 	See Hall 	v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalizations, quotations are verbatim unless
indicated.
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I. 	Plaintiff’s claims.
Plaintiff is currently confined at the Oklahoma State Penitentiary (OSP)
in McAlester, Oklahoma. Doc. 1. Plaintiff names in his complaint the “Allen
Gamble” Correctional Center, Lori Ketcher, Mr. Miller,3 Mr. Ferguson,4 and
an unidentified “C.O.” Id. at 1 & Att. 1, at 1-5. Plaintiff complains in his
pleadings that, while incarcerated at the Allen Gamble Correctional Center
(AGCC) in June and July 2024, Ms. Ketcher and other unidentified persons
stole a total of $400.00 from his trust account. Id. at 1. He states he is “tryin[g]
to file a law[suit] on Holdenville for let[ting] the C.O[.] and the inmate robber
[him] for [his] money.” Id.
II. 	Screening.
Federal law requires the Court to screen complaints filed by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss any
frivolous or malicious claim, any claim asking for monetary relief from a
3 	The AGCC is located in Holdenville, Oklahoma and Mr. Miller is the
warden of the facility. See https://oklahoma.gov/doc/facilities.html (last visited
Dec. 30, 2024).
4 	Plaintiff identifies Mr. Ferguson as the “case manager” at the AGCC.
Doc. 1, Att. 1, at 4.
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defendant who is immune from such relief, or any claim on which the Court
cannot grant relief. Id. § 1915A(b).
One aspect of screening is reviewing whether venue is proper “when the
defense is obvious from the face of the complaint and no further factual record
is required to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th
Cir. 2006) (quoting Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. 1995)).
“[T]he court acting on its own motion[] may raise the issue of whether a change
of venue would be in the interest of justice.” Love’s Travel Stops & Country
Stores, Inc. v. Oakview Constr., Inc., No. CIV-10-235-D, 2010 WL 4811450, at
*6 (W.D. Okla. Nov. 19, 2010) (citing Trierweiler v. Croxton & Trench Holding
Corp., 90 F.3d 1523, 1545 (10th Cir. 1996)); see also Trujillo, 465 F.3d at 1222
(“A court may sua sponte cure jurisdictional and venue defects by transferring
a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when
it is in the interests of justice.”).
III. 	Analysis.
“[T]he term ‘venue’ refers to the geographic specification of the proper
court or courts for the litigation of a civil action . . . .” 28 U.S.C. § 1390(a). The
proper venue for Plaintiff’s action is in the “judicial district in which any
defendant resides, if all defendants are residents of the State in which the
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district is located” or the “judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred.” Id. § 1391(b)(1), (2); see
also Anaeme v. Florida, 169 F. App’x 524, 527-28 (10th Cir. 2006) (applying the
general 	venue 	statute, 	28 	U.S.C. 	§ 	1391(b), 	to 	the 	plaintiff’s 	claims 	of
constitutional violations made under 42 U.S.C. § 1983).
Based on the complaint, it appears that every part of the events or
omissions giving rise to Plaintiff’s claims occurred in Holdenville, Oklahoma,
located in Hughes County, Oklahoma. Doc. 1, at 1. Additionally, Plaintiff has
indicated that the Defendants are either officials or employees of the AGCC or,
as for Ms. Ketcher, a private citizen. Id. at 1 & Att. 1.
“Oklahoma is divided into three judicial districts . . . known as the
Northern, Eastern, and Western Districts of Oklahoma.” 28 U.S.C. § 116.
Hughes County lies within the territorial boundaries of the Eastern District of
Oklahoma. Id. § 116(b). Given that the events Plaintiff describes in his
complaint occurred in Hughes County and the Defendants named in the
complaint are in that county, venue is proper in the Eastern District of
Oklahoma. See id. § 1391(b)(1), (2).
“The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice,
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transfer such case to any district or division in which it could have been
brought.” Id. § 1406(a). The phrase “interest of justice . . . grant[s] the district
court discretion in making a decision to transfer an action or instead to dismiss
the action without prejudice.” Trujillo, 465 F.3d at 1222-23 (internal quotation
marks omitted). The undersigned recommends dismissing this action without
prejudice. Plaintiff’s complaint has only been pending a few days. See Doc. 1
(filed Dec. 26, 2024). And Plaintiff has not paid the filing fee or moved to
proceed in forma pauperis. Dismissal without prejudice would therefore not
cause undue prejudice to Plaintiff and would allow him to refile in the proper
judicial district. See, e.g., Klein v. King, No. CIV-09-1363-HE, 2010 WL 415293,
at *1 (W.D. Okla. Jan. 28, 2010) (finding “transfer would not further the
‘interest of justice’” when plaintiff had not paid a filing fee and would not
“otherwise be prejudiced by dismissal”).
IV. 	Recommendation and notice of right to object.
Venue is improper in this judicial district for Plaintiff’s complaint. The
undersigned thus recommends the Court dismiss this action without prejudice
to its refiling in the proper judicial district.
The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of Court on or before January
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21, 2025, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The
undersigned further advises Plaintiff that failure to file a timely objection to
this Report and Recommendation waives his right to appellate review of both
factual and legal issues contained herein. See Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates
the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 30th day of December, 2024.
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