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Smith v. S.C.I. Benner Township

United States District Court, M.D. Pennsylvania

January 11, 2018

JAMES R. SMITH, Plaintiff,
v.
S.C.I. BENNER TOWNSHIP and RICKEY L. SHERMAN, Defendants.

          Kim R. Gibson, Judge

          REPORT AND RECOMMENDATION

          MAUREEN P. KELLY, CHIEF UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         It is recommended that this prisoner civil rights action be transferred forthwith to the United States District Court for the Middle District of Pennsylvania where venue is proper because all of the claims concern events that took place at the State Correctional Institution in Benner Township (“SCI-Benner”), which is located within the territorial limits of the United States District Court for the Middle District of Pennsylvania (“Middle District”).[1]

         II. REPORT

         A. Background

         James R. Smith (“Plaintiff”), is a prisoner currently incarcerated at SCI-Benner, which is located in Centre County, which is contained within the territorial limits of the Middle District. The gravamen of Plaintiff's Complaint is that, while he was housed at SCI-Benner, Defendant Rickey L. Sherman (“Sherman”) has been engaged in verbal sexual harassment of Plaintiff, including Sherman allegedly asking Plaintiff if Sherman can perform sexual acts on Plaintiff. ECF No. 1 at 2. These events allegedly occurred from October through November, 2017. Id. ¶ IV.A. We note further that Plaintiff alleges that he filed a “PREA” but nothing was done. Id. ¶ II.B. We understand “PREA” to be a reference to the “Prison Rape Elimination Act” administrative complaint which Plaintiff filed with the Pennsylvania Department of Corrections officials.[1]

         Although Plaintiff does not specifically invoke 42 U.S.C. § 1983, he appears to be alleging that he suffered a violation of his Constitutional rights. Because Plaintiff does not have a direct cause of action under the United States Constitution, a liberal reading of the Complaint would require us to presume Plaintiff is attempting to state a cause of action under Section 1983. See, e.g., Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983.”); Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir. 1981) (where a federal statute governing civil action for deprivation of rights provides a remedy, i.e., 42 U.S.C. § 1983, an implied cause of action grounded on the Constitution is not available), overruling on other grounds as recognized in, Brandman v. North Shore Guidance Center, 636 F.Supp. 877, 879 (E.D.N.Y. 1986). Hence, this Court construes the current civil action as alleging a cause of action under Section 1983.

         B. Venue is Proper in the Middle District of Pennsylvania.

         As the United States Court of Appeals for the Third Circuit has observed, “[s]ection 1983 contains no special venue provision. Therefore, the general venue provisions of 28 U.S.C. § 1391 apply.” Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 462 (3d Cir. 1996) (citation omitted). Section 1391 provides in relevant part that:

(b) Venue in general.--A civil action may be brought in--
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(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) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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