Hart v. Rowe et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart, Sr.
v. 	Case No. 20-cv-417-LM
Irene Brown Hart Rowe, et al.
REPORT AND RECOMMENDATION
Before the court is the complaint (doc. no. 1) filed by pro
se and in forma pauperis plaintiff Kenneth Hannibal Hart. 	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
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)
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(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 diversity jurisdiction, 28 U.S.C. § 1332,
plaintiff Kenneth Hannibal Hart sued his biological mother,
Irene Brown Hart Rowe, an unidentified accomplice, a bank and
bank teller in Hawthorne, FL, and an individual named Kenneth
Leon Hart, claiming they engaged in a plot to steal plaintiff’s
identity and money. 1
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. §
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.
1 On February 2, 2021, the court granted plaintiff’s motion
to dismiss multiple defendants, leaving the five defendants
listed above in the case. 	(Doc. No. 9)
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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 live in
Florida, and that the acts plaintiff complain of also took place
in Florida or New York. 	Accordingly, venue is not proper in
this court. 	The case should be dismissed, without prejudice to
plaintiff filing it in an appropriate court.
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
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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, pro se
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