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Pierre v. Local Rule Policy Maker for First Circuit Court of Appeal

United States District Court, E.D. Louisiana

November 28, 2018

DERRICK B. PIERRE
v.
LOCAL RULE POLICY MAKER FOR THE FIRST CIRCUIT COURT OF APPEAL

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGNATE JUDGE

         The pro se plaintiff, Derrick B. Pierre (“Pierre”), is incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana. The plaintiff filed this lawsuit pursuant to 42 U.S.C. § 1983 against the defendant, the Local Rule Policy Maker for the First Circuit Court of Appeal. Under a broad reading, Pierre alleges that the policy and rules of the Louisiana First Circuit Court of Appeal have resulted in the denial of his constitutional rights to a complete appeal, equal protection and due process.[1] He also has moved for leave to proceed in forma pauperis.[2]

         I. Venue Provisions

         Because § 1983 contains no specific venue provision, venue is determined under the general venue provisions of 28 U.S.C. § 1391. See Jones v. Bales, 58 F.R.D. 453 (N.D.Ga. 1972), aff'd, 480 F.2d 805 (5th Cir. 1973). The general venue statute at § 1391(b) provides as follows:

         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 jurisdiction with respect to such action.

         The provisions of 28 U.S.C. § 1406 allow a court to transfer a case from a district in which venue is wrong to another district or division in which venue is proper, if such transfer is in the interest of justice. See Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1998).

         II. Discussion

         Pierre claims that the cause of action in this case arose from his prosecution and direct appeal proceedings in East Baton Rouge Parish, Louisiana, within the geographical boundaries of the United States District Court for the Middle District of Louisiana. 28 U.S.C. § 98(b). Pierre does not allege that any defendant resides within this district or that a defendant can be located within this district. The interest of justice dictates that venue is proper in the Middle District of Louisiana.

         III. Recommendation

         It is therefore RECOMMENDED that the instant matter be TRANSFERRED to the United States District Court for the Middle District of Louisiana.

         It is further RECOMMENDED that plaintiff's motion to proceed in forma pauperis (Rec. Doc. No. 2) is DEFERRED to the United States District Court for the Middle District of Louisiana.

         A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1430 (5th Cir. 1996).[3]

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