Baxter v. Vespa et al
| Andrew W. Baxter |
| N. Vespa and M. Overhoff |
| 6:2022cv06561 |
| December 16, 2022 |
| US District Court for the Western District of New York |
| Elizabeth A Wolford |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Prisoner Civil Rights |
| None |
Docket Report
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This docket was last retrieved on January 17, 2023. A more recent docket listing may be available from PACER.
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| Filing 7 JUDGMENT administratively terminating this action. Signed by Clerk of Court on 1/17/2023. (TF)This was mailed to: Plaintiff Baxter. |
Filing 6
ORDER that Plaintiffs application to proceed in forma pauperis (Dkt. 2) is DENIED without prejudice; the Clerk of Court shall administratively terminate this action without filing the Complaint or assessing a filing fee; the Clerk of Court is directed to send to Plaintiff a copy of the Courts form motion to proceed in forma pauperis, which includes the required prison certification section; if Plaintiff wishes to reopen this action, he shall so notify this Court, in writing, no later than 30 days from the date of this Order. Signed by Hon. Elizabeth A. Wolford on 1/17/2023. (TF)This was mailed to: Plaintiff Baxter.
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| Filing 5 Case transferred in from District of New York Eastern; Case Number 1:22-cv-07445. |
| Remark: Plaintiff has been mailed a pro se packet including a privacy notice, consent to proceed before a Magistrate Judge, and a civil case timeline. (CGJ) |
| Case electronically transferred to the Western District of New York. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. (FG) [Transferred from nyed on 12/16/2022.] |
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TRANSFER ORDER: Plaintiff Andrew W. Baxter, currently incarcerated at Eastern Correctional Facility, brings this pro se action pursuant to 42 U.S.C. 1983 concerning events that allegedly occurred at Attica Correctional Facility on May 4, 2022. Because Plaintiff's claims relate to events and Defendants that are located in Wyoming County (where Attica Correctional Facility is located), this Court is not the appropriate court in which to file this action. "[W]hether venue is wrong or improper is generally governed by 28 U.S.C. 1391." Atl. Marine Const. Co., Inc. v. U.S. Dist. Ct. for W.D. of Tex., 571 U.S. 49, 55 (2013) (internal citation and quotations omitted). Here, Plaintiff has not shown that the Eastern District of New York is the proper venue under either Sections 1391(b)(1) or 1391(b)(2). Under Section 1391(b)(1), venue is proper in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located in." 28 U.S.C. 1391(b)(1). Here, Defendants are located in Attica, NY. (Dkt. 1, at 2.) Thus, venue is not proper in this district pursuant to Section 1391(b)(1). Under Section 1391(b)(2), venue is proper in a judicial district "in which a substantial part of the events or omissions giving rise to the claim occurred." Here, Plaintiff's claims relate to alleged events that occurred in Attica Correction Facility. (Dkt. 1, at 3-4.) Thus, venue is also not proper under Section 1391(b)(2). A district court may "if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. 1406(a). Accordingly, in the interest of justice, the Clerk of Court is hereby directed to transfer this action to the United States District Court for the Western District of New York. 28 U.S.C. 112(d); 1406(a). The decision on Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. 1915 and enforcement of the Prison Litigation Reform Act is reserved for the transferee Court. That provision of Local Rule 83.1 which requires a seven-day stay is hereby waived. Summonses shall not issue from this Court. The Clerk of Court is directed to mark this case closed, and to mail a copy of this Transfer Order to Plaintiff. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 12/16/2022. (FG) [Transferred from nyed on 12/16/2022.]
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| Filing 4 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (KD) [Transferred from nyed on 12/16/2022.] |
| Filing 3 Prisoner Authorization (KD) [Transferred from nyed on 12/16/2022.] |
| Filing 2 MOTION for Leave to Proceed in forma pauperis by Andrew W. Baxter. (KD) [Transferred from nyed on 12/16/2022.] |
| Filing 1 COMPLAINT against M. Overhoff, N. Vespa, filed by Andrew W. Baxter. (Attachments: #1 Civil Cover Sheet) (KD) [Transferred from nyed on 12/16/2022.] |
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