5:24-cv-01350•Nelson v. Allen Gamble Correctional Facility et al
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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. Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 1 of 6
2 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. Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 2 of 6
3 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 Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 3 of 6
4 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, Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 4 of 6
5 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 Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 5 of 6
6 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. Case 5:24-cv-01350-G Document 4 Filed 12/30/24 Page 6 of 6
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