Preview:

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MERRILL MORTENSON,                                                                       )
)
Plaintiff,                                                                               )
)
vs.                                                                                      )   Case No. 4:08-CV-1325 CDP
)
LAWRENCE COUNTY JAIL, et al.,                                                            )
)
Defendants.                                                                              )
ORDER AND MEMORANDUM
This matter is before the Court upon the application of Merrill Mortenson for
leave to commence this action without payment of the required filing fee.  See U.S.C.
§  1915(a). Upon consideration of the financial information provided with the
application, the Court will grant plaintiff provisional leave to file this action.
The Complaint
Plaintiff, a prisoner currently confined at the Phelps County Jail (“PCJ”), seeks
relief pursuant to 42 U.S.C. § 1983. Named as defendants are the Lawrence County
Jail, the Lawrence County Sheriff’s Department, Dave Unknown (a Lawrence County
deputy sheriff), Unknown Sass  (a Lawrence County deputy sheriff), Unknown
Holloway (a Lawrence County deputy sheriff), the “Lawrence County Chief Sheriff,”
and “Captain of Jail.”   Plaintiff’s allegations arise out of his incarceration at the
Lawrence County Jail, where he claims he suffered severe serious physical injuries




after being repeatedly assaulted by other inmates.   Plaintiff alleges that defendants
allowed the assaults to take place and refused plaintiff adequate and timely medical
attention.
Discussion
Pursuant to 28 U.S.C. § 1391(b), venue for this action is proper where (i) any
defendant resides, if all the defendants reside in the same state; (ii) a substantial part
of the events or omissions giving rise to the claim occurred; or (iii) where any
defendant may be found, if there is no district in which the action may otherwise be
brought.  All of the events described in the complaint occurred in Lawrence County,
Missouri, which is located in the Western District of Missouri.   See 28 U.S.C. §
105(b)(2). Also, the defendants can be found in the Western District of Missouri.
Therefore, venue is not proper in the Eastern District of Missouri.
Pursuant to 28 U.S.C. § 1406(a), the District Court in which is filed a case
laying venue in the wrong district may dismiss the case or, in the exercise of its
discretion and in the interest of justice, transfer the petition to any District Court in
which such action could have been brought.   In cases involving a plaintiff who is
proceeding pro se and in forma pauperis, especially a prisoner, the usual practice is
to transfer the case to the proper district.  Therefore, this action shall be transferred
to the United States District Court for the Western   District of Missouri.   Because
venue is not proper in the Eastern District, no determination has been made as to
2




whether the complaint is frivolous or fails to state a claim, pursuant to 28 U.S.C. §
1915(e)(2)(A)(B).
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in
forma  pauperis                                                                         [Doc.   #2]  is  PROVISIONALLY  GRANTED,  subject  to
modification by the Western District of Missouri upon transfer.
IT IS FURTHER ORDERED that the Clerk of Court shall not issue process
or cause process to issue upon the complaint, because this action will be transferred
to the Western District of Missouri.
An appropriate order of transfer shall accompany this order and memorandum.
Dated this 23rd day of September, 2008.
UNITED STATES DISTRICT JUDGE
3

Download 15061.pdf

Missouri Law