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Tom Smith, Cdcr #Ae-7059, Aka Allen Carson Weathers v. State of California Justice Department; Honorable Judges

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 14, 2011

TOM SMITH, CDCR #AE-7059, AKA ALLEN CARSON WEATHERS, PLAINTIFF,
v.
STATE OF CALIFORNIA JUSTICE DEPARTMENT; HONORABLE JUDGES;
PATTON STATE HOSPITAL; AND DISTRICT ATTORNEYS, DEFENDANTS.

The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge

ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE FOR LACK OF PROPER U.S. CENTRAL DISTRICT OF LOS VENUE PURSUANT TO ANGELES; STATE OF CALIFORNIA; 28 U.S.C. § 1391(b) CDC MENTAL HEALTH OFFICERS; AND § 1406(a) [Doc. No.2]

Plaintiff, a state prisoner proceeding pro se, and currently incarcerated at California State Prison, Los Angeles County (CSP-LAC), in Lancaster, California, has submitted a civil rights Complaint pursuant to 42 U.S.C. § 1983.

While difficult to decipher, it appears Plaintiff seeks to challenge the validity of a 1994 Los Angeles County conviction, subsequent civil commitment proceedings in Los Angeles County Superior Court in 2004, and a separate San Bernardino County criminal conviction in "2008-2010" related to a murder at Patton State Hospital. See Compl. at 2-4. Plaintiff also claims to have been "stripped," "maced" and "beaten" by unidentified San Bernardino County Sheriff's Department deputies on June 18, 2010, id. at 5, and denied medical treatment at CSPLAC after he was the victim of a battery on October 15-16, 2010. Id. at 2. Plaintiff seeks injunctive relief preventing Defendants from "taking retaliation," charging restitution and denying him medical "hygiene" and "medical marijuana." Id. at 7. Plaintiff further requests to be released from custody, awarded $100 trillion in compensatory damages from Patton State Hospital and $100 billion in punitive damages from the California Department of Corrections and Rehabilitation. Id.

Plaintiff has not paid the $350 filing fee required by 28 U.S.C. § 1914(a) to commence a civil action; instead he seeks leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a) [Doc. No.2].

I.

VENUE

An initial review of this action reveals that Plaintiff's case lacks proper venue. Venue may be raised by a court sua sponte where the defendant has not yet filed a responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). "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 interests of justice, transfer such case to any district in or division in which it could have been brought." 28 U.S.C. § 1406(a).

Here, Plaintiff alleges civil rights violations arising in both Los Angeles and San Bernardino Counties--both of which are situated in the Central District of California. See 28 U.S.C. § 84(c)(1), (2). And while Plaintiff names the State of California, all "Honorable Judges of the State Courts only" and "all involved CDC Mental Health Officers" as Defendants, no named individual is alleged to reside in San Diego or Imperial Counties and no claim is alleged to have arisen--or have any connection to--the Southern District of California. See 28 U.S.C. § 84(d) ("The Southern District [of California] comprises the counties of San Diego and Imperial.").

Thus, the proper venue for this action is the Central District of California, Eastern or Western Divisions, but not the Southern District of California.*fn1 See 28 U.S.C. § 84(c)(1), (2);28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488.

II.

CONCLUSION AND ORDER

Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Proceed In Forma Pauperis [Doc. No. 2] is DENIED this case is DISMISSED without prejudice for lack of proper venue pursuant to 28 U.S.C. §§ 1391(b) and 1406(a).

The Clerk shall close the file.


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