United States District Court, N.D. California
January 21, 2004.
CLINTON LEE SIMON, Plaintiff
CALIFORNIA DEPARTMENT OF CORRECTIONS; PEACE OFFICER ELLER, Defendants
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF TRANSFER
This is an action filed by a pro se prisoner incarcerated in Salinas
Valley State Prison. He names as defendants the California Department of
Corrections, which is located in Sacramento, California, and Peace
Officer Eller, an employee of North Kern State Prison in Kern County,
California. His complaint arises out of actions or omissions at North
Kern State Prison, where plaintiff was formerly housed.
Venue may be raised by the court sua sponte where the defendant has not
yet filed a responsive pleading and the time for doing so has not run.
See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). When
jurisdiction is not founded solely on diversity, venue is proper in (1)
the district in which any defendant resides, if all of the defendants
reside in the same state; (2) the district in which a substantial part of
the events or omissions giving rise to the claim occurred, or a
substantial part of the property that is the
subject of the action is situated; or (3) a judicial district in
which any defendant may be found, if there is no district in which the
action may otherwise be brought. See 28 U.S.C. § 1391 (b). When venue
is improper, the district court has the discretion to either dismiss the
case or transfer it "in the interest of justice." See
28 U.S.C. § 1406(a).
As noted, plaintiff's claims arise out of actions alleged to
have been committed in Kern County, by defendants located in Kern and
Sacramento Counties. Kern and Sacramento Counties are within the venue of
the Eastern District of California. 28 U.S.C. § 84(b). Accordingly,
in the interest of justice, this action is hereby TRANSFERRED to the
United States District Court for the Eastern District of California. In
light of this transfer, this Court will not address plaintiff's
application to proceed in forma pauperis or his motion for appointment of
The Clerk is directed to transfer the action forthwith and to
terminate all pending motions from this Court's docket.
This order terminates docket numbers 2 & 3.
IT IS SO ORDERED.
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