(PC) Florence v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FLORENCE, Case No. 1:19-cv-00331-NONE-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR CHANGE OF JURISDICTION OR 13 v. VENUE 14 KERNAN, et al., (ECF No. 19) 15 Defendants. 16 17 Plaintiff David Florence (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is 19 Plaintiff’s motion for a transfer of venue to the U.S. District Court for the Northern District of 20 California. (ECF No. 19.) 21 “For the convenience of parties and witnesses, in the interest of justice, a district court 22 may transfer any civil action to any other district or division where it might have been brought or 23 to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “A civil 24 action may be brought in—(1) a judicial district in which any defendant resides, if all defendants 25 are residents of the State in which the district is located; [or] (2) a judicial district in which a 26 substantial part of the events or omissions giving rise to the claim occurred . . . .” 28 U.S.C. 27 § 1391(b). The party seeking the transfer must meet an initial threshold burden by demonstrating 28 that the action could have been brought in the proposed transferee district. 28 U.S.C. § 1391(b); 1 28 U.S.C. § 1404(a); Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985); Park v. Dole 2 Fresh Vegetables, Inc., 964 F.Supp.2d 1088, 1093 (N.D. Cal. 2013). 3 The events at issue in this action occurred while Plaintiff was housed at North Kern State 4 Prison (“NKSP”) in Delano, California in Kern County, which is located within the boundaries of 5 the Fresno Division of the Eastern District of California. Plaintiff names as defendants Secretary 6 of CDCR S. Kernan; Undersecretary, Operations of CDCR R. M. Diaz; Undersecretary, 7 Administration & Offender Services Kenneth J. Pogue; Director of Division of Adult Institutions 8 K. Allison; and Chief Deputy Warden of NKSP B. Kibler. Plaintiff states that all defendants 9 reside or work in Sacramento, California, except Defendant Kibler, who is alleged to reside or 10 work in Delano, California. However, there is no indication that any, much less “a substantial 11 part,” of the events giving rise to this suit have taken place within the boundaries of the United 12 States District Court for the Northern District of California. Rather, Plaintiff argues that due to 13 the ongoing judicial emergency in the Eastern District of California, as well as his recent transfer 14 to Pelican Bay State Prison, the Court should transfer his complaint to the Northern District so it 15 can be assigned to a District Judge in that venue to expedite this case.1 (ECF No. 19.) 16 Plaintiff’s transfer to a new institution and the judicial situation in the Eastern District are 17 not sufficient justifications to transfer this action to the Northern District. Accordingly, venue 18 remains appropriate in the Fresno Division of this district. 19 Accordingly, Plaintiff’s motion to transfer venue, (ECF No. 19), is HEREBY DENIED. 20 IT IS SO ORDERED. 21 22 Dated: March 11, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 1 To the extent Plaintiff again requests injunctive relief in the form of his transfer to a new institution or to prevent 27 Defendants from transferring him to a Non-Designated Programming Facility yard, those arguments were addressed in the Court’s March 10, 2020 findings and recommendations, and the Court declines to discuss them in detail in 28 response to the instant motion.