United States District Court, S.D. New York
Colleen McMahon, Chief United States District Judge.
a New York City resident, brings this pro se action
under 42 U.S.C. § 1983, regarding events occurring in
2016, when he was incarcerated at Upstate Correctional
Facility. Named as defendants are Anthony Annucci, the Acting
Commissioner of the New York State Department of Correction
and Community Supervision; and the following Upstate
Correctional Facility employees: Superintendent David Uhler,
Deputy of Security Woodruff; Prison Guard Bailey; and FOIL
Supervisor T. Nelson. Plaintiff seeks leave to proceed in
forma pauperis (IFP).
the general venue provision, a civil action may be brought
(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 (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.
28 U.S.C. § 1391(b). For venue purposes, a
“natural person” resides in the district where
the person is domiciled. 28 U.S.C. § 1391(c)(1).
venue purposes, a defendant corporation generally resides
“in any judicial district in which such defendant is
subject to the court's personal jurisdiction with respect
to the civil action in question . . .” 28 U.S.C. §
1391(c)(2). Where a state has more than one judicial
district, a defendant corporation generally “shall be
deemed to reside in any district in that State within which
its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State.”
28 U.S.C. § 1391(d).
filed this complaint regarding events occurring at Upstate
Correctional Facility, located in Malone, Franklin County,
New York, where the Upstate Correctional Facility employees
reside. Commissioner Annucci resides in Albany, New York.
Because Plaintiff does not allege that Defendants reside in
this District or that a substantial part of the events or
omissions underlying his claim arose in this District, venue
does not appear to be proper in this District under §
1391(b)(1) or (2).
venue were proper here, however, the Court may transfer
claims “[f]or the convenience of the parties and
witnesses, in the interest of justice.” 28 U.S.C.
§ 1404(a).“District courts have broad
discretion in making determinations of convenience under
Section 1404(a) and notions of convenience and fairness are
considered on a case-by-case basis.” D.H. Blair
& Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.
2006). Moreover, courts may transfer cases on their own
initiative. See Bank of Am., N.A. v. Wilmington Trust
FSB, 943 F.Supp.2d 417, 426-427 (S.D.N.Y. 2013)
(“Courts have an independent institutional concern to
see to it that the burdens of litigation that is unrelated to
the forum that a party chooses are not imposed unreasonably
on jurors and judges who have enough to do in determining
cases that are appropriately before them. The power of
district courts to transfer cases under Section 1404(a)
sua sponte therefore is well established.”
(quoting Cento v. Pearl Arts & Craft Supply
Inc., No. 03-CV-2424, 2003 WL 1960595, at *1 (S.D.N.Y.
Apr. 24, 2003))); see also Lead Indus. Ass'n. Inc. v.
OSHA., 610 F.2d 70, 79 (2d Cir. 1979) (noting that
“broad language of 28 U.S.C. § 1404(a) would seem
to permit a court to order transfer sua
determining whether transfer is appropriate, courts consider
the following factors: (1) the convenience of witnesses; (2)
the convenience of the parties; (3) the locus of operative
facts; (4) the availability of process to compel the
attendance of the unwilling witnesses; (5) the location of
relevant documents and the relative ease of access to sources
of proof; (6) the relative means of the parties; (7) the
forum's familiarity with the governing law; (8) the
weight accorded to the plaintiff's choice of forum; (9)
trial efficiency; and (10) the interest of justice, based on
the totality of circumstances. Keitt v. N.Y. City,
882 F.Supp.2d 412, 459-60 (S.D.N.Y. 2011); see also N.Y.
Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599
F.3d 102, 112 (2d Cir. 2010) (setting forth similar factors).
A plaintiff's choice of forum is accorded less deference
where plaintiff does not reside in the chosen forum and the
operative events did not occur there. See Iragorri v.
United Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
§ 1404(a), transfer appears to be appropriate in this
case. The underlying events occurred in Malone New York,
where most defendants appear to reside. Plaintiff filed this
complaint in that district first. Malone, New York is located
in Franklin County, which falls within the Northern District
of New York. See 28 U.S.C. § 112(a). Venue is therefore
proper in the Northern District of New York. See 28 U.S.C.
§ 1391(b). Based on the totality of the circumstances,
the Court concludes that it is in the interest of justice to
transfer this action to the United States District Court for
the Northern District of New York. 28 U.S.C. § 1404(a).
HISTORY AND WARNING
was barred under 28 U.S.C. § 1915(g) from filing actions
IFP while a prisoner, unless he is under imminent danger of
serious physical injury. See Shabazz v. Annucci, ECF
1:18-CV-0118, 3 (S.D.N.Y. Jan 9, 2018). Because he is no
longer in custody, the § 1915(g) bar does not apply to
light of Plaintiff's litigation history, however, the
Court finds that he was or should have been aware when he
filed this case that many of his claims are duplicative or
lack merit. See Sledge v. Kooi, 564 F.3d 105, 109-10
(2d Cir. 2009) (discussing circumstances where frequent
pro se litigant may be charged with knowledge of
particular legal requirements). Plaintiff is warned that the
Court may bar any vexatious litigant (including a
nonprisoner) from filing future actions (even if the filing
fee is paid) without first obtaining leave from the Court.
See In re ...