United States District Court, N.D. New York
NADINE TOWNSEND, Plaintiff, Pro Se, Albany, New York.
REPORT-RECOMMENDATION and ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
The Clerk has sent to the Court for review a complaint filed by pro se plaintiff Nadine Townsend ("Townsend"). Compl. (Dkt. No. 1). Townsend has also filed a motion to proceed in forma pauperis (IFP) (Dkt. No. 2) and requested appointment of counsel (Dkt. No. 3).
A. In Forma Pauperis Application
The Court has reviewed Townsend's IFP application. Dkt. No. 2. Because Townsend sets forth sufficient economic need, the Court finds that Townsend qualifies to proceed IFP.
B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action.
The undersigned first recommends dismissal of the action because it is improperly venued. The general venue statute provides that:
[C]ivil action[s] 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... giving rise to the claim occurred...; (3) if there is no district in which an action may otherwise be brought... any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Townsend alleges that both defendants can be served at Parkland Memorial Hospital which appears to be located in Dallas, Texas. Compl. at 2. Moreover, the bulk of Townsend's complaint contends that she was denied medical treatment and housing assistance by Parkland in Texas, prior to her moves to California in February of 1999 and ultimately New York in December of 1999. Id. at 3. Specifically, Townsend contends that the Parkland defendants failed to diagnosis and treat multiple tumors in her breast and reproductive organs and then conspired with unidentified individuals and organizations to continue Townsend's maltreatment as well as failing to subsequently provide her medical records to health clinics after she moved. Id. at 6, 8, 10-11. It appears that defendant Dr. Ramirez was Townsend's primary physician in Texas. Id. at 10-11.
Accordingly, the defendants in this action are presumably all residents of Texas, or somewhere near Texas, as that is where the hospital is located and where Dr. Ramirez is employed. Moreover, all of the alleged unconstitutional events regarding these named defendants, who are the only named defendants in the present case, occurred during Townsend's time in Texas. As no defendant resides in the Northern District of New York and none of the conduct plaintiff complains of occurred in this district, venue in the Northern District of New York is improper.
To cure improper venue, the court "shall dismiss, or if it be in the interest of justice, transfer such a case to any district... in which it could have been brought." 28 U.S.C. § 1406(a). "Whether dismissal or transfer is appropriate lies within the sound discretion of the district court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) (citations omitted). "[T]he functional purpose of 28 U.S.C. § 1406(a) is to ...