Gay v. Shaffer

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff is a state prisoner at California Men's Colony (CMF), in San Luis Obispo, under the authority of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983, a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and a request for appointment of counsel. Plaintiff also requests that this case be transferred back to the United States District Court for the Central District of California.

         This action is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, plaintiff's request to proceed in forma pauperis is granted, his additional requests are denied, and the undersigned recommends that this action be dismissed without leave to amend.

         II. Venue Challenge

         This case was originally filed in the Central District of California. By order filed July 31, 2019, the Central District transferred the case to this district pursuant to 28 U.S.C. § 1404(a)^[1] on the ground that “all of the named defendants are employed by the BPH [Board of Parole Hearings] in Sacramento, and all are believed to ‘live in the Sacramento area,' which is in the Eastern District of California.” ECF No. 5 at 4-5 (original emphasis).

         Plaintiff filed a “Notice of Judicial Error” moving for the transfer of this case back to the Central District. ECF No. 10. Plaintiff argues that the events or omissions giving rise to his Claim One occurred at CMC (within the Central District), while the matters giving rise to his Claim Two occurred at the Correctional Training Facility (CTF), in Soledad (within the Northern District). Plaintiff asserts that the Central District can then bifurcate plaintiff's claims, retaining Claim One, and “allowing plaintiff to file Claim Two in the Northern District.” Id. at 10. Plaintiff notes that he is currently pursuing a separate civil rights action in the Northern District after the Eastern District granted plaintiff's his to transfer that case back to the Northern District.^[2]

         Before transferring this case to the Eastern District, the Central District carefully considered the substance of plaintiff's claims and the identity of the named defendants. See ECF No. 5. Giving due weight to the venue considerations set forth in 28 U.S.C. § 1391(b), ^[3] the Central District found that “there is no indication that a ‘substantial' part of the events giving rise to this suit have taken place within the boundaries of the Central District of California, and there is some evidence that the October 2015 events may have taken place in the Northern District of California. On the other hand, as noted by plaintiff, all of the named defendant are employed by the BPH in Sacramento[.]” Id. at 4-5. On these grounds and in deference to the convenience of the parties and witnesses and in the interests of justice, the Central District transferred the case to this district pursuant to 28 U.S.C. § 1404(a). Id. at 5.

         The undersigned finds the reasoning of the Central District persuasive and, on the grounds stated by that court, will deny plaintiff's transfer request. Moreover, as discussed below, transfer is contraindicated because all the named defendants are immune from suit and plaintiff's claims are without merit, supporting the undersigned's recommendation that this action be dismissed without leave to amend.

         III. In Forma Pauperis Application

         Plaintiff has submitted an affidavit and prison trust account statement that make the showing required by 28 U.S.C. § 1915(a). See ECF No. 2; see also ECF No. 9 (plaintiff's Inmate Trust Account Statement). Accordingly, plaintiff's request to proceed in forma pauperis will be granted.

         Plaintiff must still pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

         IV. Screening of Plaintiff's Complaint

         A. Legal Standards for Screening Prisoner Civil Rights Complaints

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). A claim is legally frivolous when it lacks ...