Flores v. Smith et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
VALERIE FLORES,
Plaintiff,
v.
No. 1:26-CV-0121
JOSH SMITH, et al., 	(MAD/PJE)
Defendants.
_____________________________________
APPEARANCES:
Valerie Flores
P.O. Box 1110 ACP 5749
Albany, New York 12201
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION and ORDER
Plaintiff pro se Valerie Flores1 purported to commence this action on January 26,
2026, with the filing of a complaint. See Dkt. No. 1. In lieu of paying this Court’s filing
fee, plaintiff submitted an application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. She also filed a motion for appointment of counsel and motion to
amend. See Dkt. Nos. 3, 8. On April 8, 2026, plaintiff filed a letter seeking to “correct
the record and update Josh Smith name to William Fitzgerald.” Dkt. No. 8. The
1 Plaintiff has repeatedly commenced actions in this Court, despite it not being the proper venue. Indeed,
due in part to this issue, on February 4, 2026, this Court implemented a prefiling injunction stating that
plaintiff may not commence any new actions in this District without proper permission of the chief judge,
as well as a revocation of her MFT (electronic filing) privileges. See 1:26-pf-0001 (BKS), In re Valerie
Flores. As this action was commenced before the entry of that prefiling injunction, it does not apply to this
case.
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undersigned has reviewed plaintiff’s IFP application and determines that she financially
qualifies to proceed IFP.2 As IFP has been granted, the Court is compelled to review
plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915; 1915A.
It appears that plaintiff is currently a resident of the Northern District of New
York. See Dkt. Nos. 1, 1-1. Plaintiff’s provided address is based on her participation in
the New York State Address Confidentiality Program, which allows use of a post office
box in Albany, New York. See Dkt. No. 1 at 7. Plaintiff names Josh Smith;3 Brendan
Conaway, potentially also known as “Ryan”; Jesse Heald; and Jesse and Hector Cortes
as defendants. She alleges Smith is a citizen of Wisconsin, Georgia, or New
Hampshire; Conaway a citizen of Wisconsin, Indiana, or California; Heald, a citizen of
Wisconsin, Iowa, or Missouri; Jesse Cortes, a citizen of Wisconsin; and Hector Cortes,
a citizen of Illinois.
Plaintiff has failed to establish that venue is proper in the Northern District of New
York. The only connection to the Northern District of New York is that she alleges to
reside here. See Dkt. No. 1. “[I]t is absolutely clear that Congress did not intend to
provide for venue at the residence of the plaintiff.” Leroy v. Great W. United Corp., 443
U.S. 173, 185 (1979).
Notwithstanding Plaintiff's present geographical location, the venue statute
does not refer to where any plaintiff resides. The statute refers to the district
where the defendants reside if they all reside in the same state in which the
district is located, or to a district where a substantial part of the acts or
omissions that form the basis for the complaint occurred.
2 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and
costs they may incur in this action, including, but not limited to, copying fees, transcript fees, and witness
fees.
3 In her letter request, she seeks to rename Josh Smith as William Fitzgerald.
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Townsend v. Pep Boys, Manny Moe and Jack, 1:13-CV-1606 (MAD/RFT), 2014 WL
4826681, at *3 (N.D.N.Y. Sept. 29, 2014)4 (citing 28 U.S.C. § 1391(b)(1), (b)(2)). Venue
in civil actions in federal court is governed by 28 U.S.C. § 1391(b), which provides,
[a] civil action may be brought in—
(1) a judicial district where any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) 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; or
(3) if there is no district in which an action may otherwise be brought as
provided in this section, any district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Although a plaintiff’s choice of forum is generally granted “considerable weight,”
[w]hen a case is filed in a district in which venue is improper, the court “shall
dismiss” the case or, “if it be in the interest of justice, transfer such case to any
district . . . in which it could have been brought.” 28 U.S.C. § 1406(a)
(emphasis added). Even if venue is proper, a district court may sua sponte
transfer an action in the interest of justice and for the convenience of the
parties and witnesses to any other district where it might have been brought.
28 U.S.C. § 1404(a); Ferens v. John Deere Co., 494 U.S. 516, 530 (1990);
Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d
70, 79 n.17 (2d Cir. 1979) (citing cases); Kelly v. Kelly, 911 F.Supp. 70, 71
(N.D.N.Y. 1996).
Hines v. Dell, No. 5:20-CV-638 (TJM/ATB), 2020 WL 3100260, at *2 (N.D.N.Y. June 11,
2020), report and recommendation adopted, No. 5:20-CV-638 (TJM/ATB), 2020 WL
4500677 (N.D.N.Y. Aug. 5, 2020). “When considering whether to transfer an action sua
sponte, courts follow the same traditional analysis used when a party moves for a
change of venue.” Id. at 2 (citing Flaherty v. All Hampton Limousine, Inc., No. 01 Civ.
9939 (SAS), 2002 WL 1891212. at *1-2 (S.D.N.Y. Aug. 16, 2022)). Specifically,
4 As the Court recently provided Plaintiff with copies of these unpublished cases in connection with
another of her cases,1:25-CV-01733 (MAD/PJE), Flores v. Vang, et al., the Court does not provide
additional copies.
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“[m]otions to transfer venue are governed by a two-part test: (1) whether the action to
be transferred ‘might have been brought’ in the transferee venue; and (2) whether the
balance of convenience and justice favors transfer.” Id. (quoting Flaherty, 2002 WL
1891212, at *1). Plaintiff resides in Albany, New York. See Compl. at 1. Apart from
plaintiff’s apparent domicile, the complaint is devoid of any connection to the Northern
District of New York. See generally Dkt. No. 1.
Affording Plaintiff due solicitude, the undersigned can only speculate from the
allegations in the complaint where venue might lie. 	As to the various Defendants’
states of residency, Plaintiff alleges that they potentially reside in no fewer than eight
different states, without any specific address, city, town, or county provided for any
Defendants. See Dkt. No. 1 	As to where a substantial part of the events or omissions
giving rise to the claim occurred, straining the limits of solicitude, Plaintiff appears to
contend seeing the defendants in Wisconsin, Georgia (where she also alleges
defendant Smith/Fitzgerald stalked and harassed her), Florida, Illinois, Indiana, and
Iowa. See generally id.; dkt. no. 6. None of the allegations that the undersigned can
decipher from the complaint are alleged to have occurred in the Northern District of New
York. As it is clear that Plaintiff’s residence in the Northern District of New York is the
sole connection this action has to this District, venue is improper in this District. See 28
U.S.C. §§ 1391(b)(2), 1404.
When a case is filed in a district in which venue is improper, the court shall
dismiss the case, or “if it be in the interests of justice, transfer the case to any district . . .
in which it could have been brought.” 28 U.S.C. § 1406(a). Whether to dismiss or
transfer a case is discretionary. See Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d
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Cir. 1993). The Second Circuit has cautioned that a court should not dismiss for
improper venue on its own motion, “except in extraordinary circumstances.” Stich v.
Rehnquist, 982 F.2d 88, 89 (2d Cir. 1992) (emphasis added). Because the complaint
contains no facts establishing that venue lies in this District, and because the Court
cannot determine from the pleading the district in which venue would properly lie, the
undersigned recommends the complaint be dismissed without prejudice.
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is
RECOMMENDED, that Plaintiff’s complaint be dismissed without prejudice and
with leave to renew in a District where venue lies; and it is further
RECOMMENDED, that Plaintiff’s motion for appointment of counsel and motion
to amend, dkt. nos. 3, 8, be dismissed as moot, with leave to renew in the District where
venue lies; and it is
ORDERED, that the Clerk of this Court serve a copy of this Report-
Recommendation & on Plaintiff in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within
which to file written objections to the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d
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85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d
Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 72.5
Dated: May 11, 2026
Albany, New York
5 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
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