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Karl Wichelman, et al v. Santa Clara County California


May 9, 2011



Plaintiffs, Karl Wichelman and Anne Sabetta, proceeding in this action pro se, have requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The case was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

Plaintiffs have each submitted an in forma pauperis application that makes the showing required by 28 U.S.C. § 1915(a)(1). Plaintiffs' request for leave to proceed in forma pauperis will therefore be granted.

The determination that plaintiffs may proceed in forma pauperis does not complete the inquiry required by the statutes. Under 28 U.S.C. § 1915(e)(2), the court is required to dismiss an in forma pauperis case at any time if the plaintiff's allegations of poverty is untrue or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant. To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In considering whether a complaint states a cognizable claim, the court accepts as true the material allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

In their complaint plaintiffs assert that defendants Santa Clara County, Santa Clara Valley Medical Center ("VMC") and several named doctors "did with knowledge and malice at the highest levels of County Government intend by actions and/or inaction by medical staff at VMC to TERMINATE SABETTA'S LIFE WITH PREJUDICE." (Compl. (Doc. No. 1) at 4.) In this regard, plaintiffs allege as follows. On April 1, 2008, plaintiff Anne Sabetta was transferred to VMC by the San Jose Police Department after being found asleep at a bus stop. (Id. at 2-3.) Ms. Sabetta was admitted to VMC as a "perfectly healthy human being," but soon after was transferred to the critical care unit suffering from septicemia as a result of a hospital acquired infection. (Id. at 3-4.) She remained hospitalized for several months. (Id.) On September 21, 2008, Ms. Sabetta broke her leg while in Sacramento, California "because of" her weakened condition as a result of her prolonged hospitalization at VMC. (Id. at 7.)

Because defendants have not appeared and therefore not waived a challenge to venue, the court may raise the issue of proper venue sua sponte. Costlow v. Weeks, 790 F.2d 1486, 1487-88 (9th Cir. 1986). Title 28 U.S.C. § 1391(b) provides that where jurisdiction is not founded solely on diversity, a civil action "may be brought only in the judicial district where all defendants reside, or in which the claim arose . . . ." The factual allegations found in plaintiffs' complaint occurred almost exclusively in Santa Clara County. In this regard plaintiffs' claim arose in Santa Clara County, which is within the boundaries of the Northern District of California. Plaintiffs have not alleged that any of the named defendants reside within the Eastern District of California and that would appear not to be the case. The Eastern District of California is therefore not the proper venue for this case.

Title 28 U.S.C. § 1406(a) states that "[t]he 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 interest of justice, transfer such case to any district or division in which it could have been brought." The decision of whether to transfer or dismiss rests within the sound discretion of the district court. See Cook v. Fox, 537 F.2d 370, 371 (9th Cir. 1976); see also Hapaniewski v. City of Chicago Heights, 883 F.2d 576, 579-80 (7th Cir. 1989); Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Here the court finds that the interests of justice do not require a transfer.*fn1

Accordingly, the undersigned will recommend that plaintiffs' complaint be dismissed. "A determination of improper venue does not go to the merits of the case and therefore must be without prejudice." In re Hall, Bayoutree Assoc. Ltd., 939 F.2d 802, 804 (9th Cir. 1991).

The undersigned will therefore recommend that plaintiffs' complaint be dismissed without prejudice to the filing of an action in the appropriate venue.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff Karl Wichelman's August 9, 2010 application to proceed in forma pauperis (Doc. No. 3) is granted; and

2. Plaintiff Anne Sabetta's August 12, 2010 application to proceed in forma pauperis (Doc. No. 4) is granted.


1. Plaintiffs' complaint (Doc. No. 1) be dismissed without prejudice to refiling this action in the appropriate venue; and

2. This action be dismissed.

These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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