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Bailey v. Kirsch

United States District Court, M.D. Pennsylvania

July 24, 2019

THOMAS BAILEY, Plaintiff,
v.
JESSE KIRSCH, M.D., et al., Defendants.

          MEMORANDUM AND ORDER

          MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE

         I. Statement of Facts and of the Case

          This case is a pro se prisoner civil rights action brought by Thomas Bailey, an inmate at the Berks County Prison. In his complaint Bailey alleges that prison officials are forcing him to take phenobarbital against his will. (Doc. 1.) Bailey's complaint names a doctor at the prison and the prison warden as defendants and alleges that the events set forth in his pleading have taken place at the Berks County Prison. Thus, all parties are found in Berks County, and this case arises out of matters that allegedly took place in Berks County.

         Berks County is located within the jurisdiction and venue of the United States District Court for the Eastern District of Pennsylvania. See 28 U.S.C. § 118(a). Given these facts alleged by Bailey in this complaint, which involve parties and incidents that fall exclusively within Berks County, we conclude that the United States District Court for the Eastern District of Pennsylvania is the most appropriate venue for litigation of this matter, and we will order this case transferred to that court for further proceedings.

         II. Discussion

         This case is a federal civil action. In such cases, 28 U.S.C. § 1391(b) defines the proper venue and provides that an action should:

[B]e 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).

         In this case, “a substantial part of the events or omissions giving rise to the claim occurred” in Berks County and it appears that the defendants may be found in Berks County, which is within the venue of the United States District Court for the Eastern District of Pennsylvania. Therefore, this case appears to fall within the venue of the United States District Court for the Eastern District of Pennsylvania.

         This court is permitted sua sponte to raise the issue of an apparent lack of venue, provided the court gives the plaintiff notice of its concerns and an opportunity to be heard on the issue. See e.g., Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996)(“[A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue”); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). In this case, through the filing of Memorandum, we are placing the plaintiff on notice that this complaint does not allege facts that would give rise to venue over this action in this court.

         When it appears that a case has been brought in the wrong venue, there are two potential remedies available to the court. First, the court may dismiss the action for lack of venue pursuant to 28 U.S.C. § 1406 and Rule 12(b)(3) of the Federal Rules of Civil Procedure. However, the court may also, in the interests of justice, provide another form of relief, one which ensures that venue is proper without prejudicing the rights of any plaintiffs. Under 28 U.S.C. § 1406:

The district court of a district in which is filed a case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of justice, transfer such case to any district . . . in which it could have been brought.

28 U.S.C. § 1406(a)(emphasis added).[1]

         In this case, since venue over this matter appears to lie in the United States District Court for the Eastern District of Pennsylvania, in order to protect the plaintiff's rights as a pro se litigant, we will order this case transferred to the United States District Court for the Eastern District of Pennsylvania for further proceedings. Such a transfer order avoids any prejudice to the plaintiff which might flow from a dismissal of this action on venue grounds. See Burnett v. New York Cent. R. Co., 380 U.S. 424, 430 (1965). Moreover, addressing the lack of venue in this fashion would not constitute a ruling on the merits of the plaintiff's claims, thus assuring that the plaintiff can have this case heard on its merits in the proper forum. See, 18 Wright, Miller & Cooper ...


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