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BERRY v. NEW YORK STATE DEPT. OF CORRECTIONAL SERV

December 18, 1992

BESSIE M. BERRY, plaintiff
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, et. al. defendants


Motley


The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

I. Background

The pleadings in this case allege a widespread conspiracy and pattern of civil rights violations against the plaintiff, an African-American ex-employee of the Elmira Correctional and Reception Facility. The complaint alleges, in essence, various forms of employment and other kinds of discrimination, as well as a cause of action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, et. seq.

 The plaintiff is a middle-aged African-American woman living in Elmira, New York. The actions complained of occurred while she was employed as a Corrections Counselor and Inmate Prison Placement Coordinator at the Elmira Correctional and Reception Center. Plaintiff has long been active in civil rights causes, and at one time was president of the local NAACP chapter.

 The complaint merely alleges, in a conclusory fashion, that venue is proper under 18 U.S.C. § 1965(a) and 28 U.S.C. § 1391(b) without stating the reasons why. The plaintiff and the facility are both located in Elmira, which is in the Western District of New York. Certain of the state agency defendants have a branch office in the Southern District of New York, but they are all headquartered in Albany, in the Northern District of New York, and all the acts complained of took place in the Western District. One of the individual defendants (all of whom, as indicated in the complaint, are sued both in their individual and official capacities) has since retired and is now living in the Southern District. The Attorney General has moved for a change of venue to either the Western or the Northern District under 28 U.S.C. § 112(a) and 28 U.S.C. § 1391(b) on the grounds that venue is improperly laid in the Southern District, or alternatively, for a forum non conveniens transfer under 28 U.S.C. § 1404(a).

 II. The Attorney General's Argument

 Additionally, defendants argue that for purposes of a suit against an official acting in his official capacity, his residence for venue purposes is considered to be his place of work, not their place of home residence.

 Under § 1404(a), defendants contend, venue should be changed since it would serve the interests of justice and be more convenient to try the matter in the Western or the Northern District since that is where most of the defendants and the plaintiff are located and since most of the relevant records would be found there.

 III. Plaintiff's Contentions

 Plaintiff argues that venue is proper in the Southern District since defendant McLaughlin now lives here and since plaintiff's choice of venue should be given deference.

 The central focus, however, of plaintiff's desire to try the case in the Southern District, is the stated fear that because of pervasive and systemic racism in the Northern and the Western Districts, it is impossible for the plaintiff to "receive a fair trial" there. Plaintiff argues that the jurors would either be friends, spouses, or neighbors of the defendants if the action were tried in the Western District or if it were tried in the Northern District, the jurors would be biased since they live in an area near to the seat of the state government and, thus, they would be biased in favor of the government defendants. Also, because of racism in the Western and the Northern Districts, plaintiff would be too terrified to testify in those jurisdictions as would potential witnesses (who remain unnamed in the pleadings). *fn1"

 Plaintiff also argues that some former prisoners of the Elmira facility who would testify at trial now live within the Southern or Eastern District and thus that it would be more convenient for the witnesses if the trial were held here. They do not, however, supply any of the names of these potential witnesses. It is also argued that Manhattan's central location would make it convenient to try the case here.

 Plaintiff additionally contends that under Civil RICO, 18 U.S.C. § 1965(a), venue is proper wherever any defendant resides or does business or in any venue where the ...


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