The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Thomas M. Blewitt (Doc. 10), filed on April 29, 2010, which recommends that this action be dismissed pursuant to 28 U.S.C. § 1406(a) or transfer it to the proper forum, finding that there is no diversity jurisdiction in this matter. Plaintiff Christopher F. Goad, Sr. ("Plaintiff" or "Goad") filed objections to the R&R on May 14, 2010. For the reasons set forth below, the Court will adopt the R&R in part and reject it in part. This matter will be transferred to the United States District Court for the Eastern District of Virginia.
A. Review of a Magistrate Judge's Report
When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court's examination of this case confirms the Magistrate Judge's determinations.
B. 28 U.S.C. § 1915(e)(2)(B)(ii) Review
Under 28 U.S.C. § 1915(e)(2)(B)(ii), a federal court must dismiss a case filed in forma pauperis if the court determines that the complaint "fails to state a claim on which relief may be granted." In reviewing the legal sufficiency of a complaint, the Court must accept the truth of the plaintiff's allegations. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the "no set of facts" language from Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 555 (citation omitted). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id.
Pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), and pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
II. FACTUAL BACKGROUND/PROCEDURAL HISTORY
Plaintiff, presently incarcerated at the Low Security Correctional Institution at Allenwood ("LSCI-Allenwood") filed, pro se, the instant action, pursuant to 28 U.S.C. § 1332 on April 2, 2010. (Doc. 1). Plaintiff also filed a motion to proceed in forma pauperis. (Doc. 6).
Named as Defendants are William R. Gray, the Plaintiff's half-brother, who resides in Richmond, Virginia, and Jane Doe, also a resident of Virginia. Plaintiff invokes the diversity jurisdiction of this Court, claiming that he is a resident of the Middle District of Pennsylvania and that the Defendants are residents of Virginia, and the amount in controversy exceeds $75,000.
Plaintiff was taken into custody in April, 2008 in Virginia and has remained in custody since that date. Prior to Plaintiff's transfer to LSCI-Allenwood in March, 2009, he was incarcerated at the Northern Neck Regional Jail ("NNRJ"), which is located in Warsaw, Virginia. A review of Plaintiff's complaint indicates that his claims largely arose ...