United States District Court, D. Kansas
DONNELL F. TIMLEY, SR., Plaintiff,
C.R. GOETZ, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
J. WAXSE U.S. Magistrate Judge.
matter is a civil rights action filed a prisoner held at the
Federal Correctional Institution, Florence, Colorado.
Plaintiff proceeds pro se and seeks leave to proceed in forma
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
Court has examined the financial records supplied by the
plaintiff and finds that during the six months preceding the
filing of this action, he had an average daily balance in
excess of $1, 100.00 in his institutional account (Doc. #2,
Attach., p. 4). The Court concludes that plaintiff has
sufficient resources to pay the $400.00 filing fee and will
deny leave to proceed in forma pauperis.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
alleges his rights under the Eighth Amendment were violated
by four officers employed at the FCI Florence. His claims
concern the conditions of his confinement, including his
assignment to a dry cell, limited access to showers and
hygiene, limited access to bedding and a mattress, and the
handling of his mail. He seeks damages and other relief.
Court finds that venue is not proper in the District of
A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may, except as otherwise provided in
law, be brought only in (1) a judicial district where any
defendant resides, if all defendants reside in the same
State, (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) a judicial district in which any
defendant may be found, if there is no district in which the
action may otherwise be brought. 28 U.S.C. § 1391(b).
no defendants reside in Kansas, and the acts and omissions
alleged took place during plaintiff's incarceration in
FCI Florence. Accordingly, venue is proper in the United
States District Court for the District of Colorado.
28 U.S.C. § 1406(a), “[t]he district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” The
Court has considered the complaint and finds that transfer is
appropriate. Plaintiff's claims appear to be timely, and
they are not patently frivolous or malicious.
the Court recommends that this matter be transferred to the
U.S. District Court for the District of Colorado and directs
plaintiff to file any objection to this recommendation within
fourteen (14) days from his receipt of this order. The
failure to file a written, specific objection waives de novo