IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 15, 2008
THOMAS LEE GUTZMAN, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a former state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983, together with a request to proceed in forma pauperis. In his complaint, plaintiff alleges violations of his civil rights by defendants. The alleged violations took place in Fresno County, which is part of the Fresno Division of the United States District Court for the Eastern District of California. See Local Rule 3-120(d).
Venue of this action is technically appropriate in the Sacramento Division of the Eastern District of California because the Director of the California Department of Corrections and Rehabilitation (hereafter "CDC Director") resides in this division. Nevertheless, the court is transferring this action to the Fresno Division of the Eastern District of California pursuant to 28 U.S.C. § 1404(a) in the interests of justice for the following reasons.
It is clear that plaintiff is suing the CDC Director solely in a respondeat superior capacity. Additionally, plaintiff is seeking monetary damages only and has not stated a claim for injunctive relief. As such, the CDC Director is subject to be dismissed from this 42 U.S.C. § 1983 action. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Venue would then be improper in this division because no defendant would be found here. Venue would also be improper because the claims for which plaintiff seeks relief took place in the Fresno Division. Thus, it is appropriate that those claims be litigated in that division.
Pursuant to Local Rule 3-120(f), a civil action which has not been commenced in the proper division of a court may, on the court's own motion, be transferred to the proper division of the court. Therefore, this action will be transferred to the Fresno Division of the court. In light of 1996 amendments to 28 U.S.C. § 1915, this court will not rule on plaintiff's request to proceed in forma pauperis.
Good cause appearing, IT IS HEREBY ORDERED that:
1. This court has not ruled on plaintiff's request to proceed in forma pauperis;
2. This action is transferred to the United States District Court for the Eastern District of California sitting in Fresno; and
3. All future filings shall reference the new Fresno case number assigned and shall be filed at: United States District Court Eastern District of California 2500 Tulare Street Fresno, CA 93721
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