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Petersen v. Overstreet

United States District Court, D. Nebraska

August 1, 2019

DAVID P. PETERSEN, Plaintiff,
v.
ADAM W. OVERSTREET, et al., Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, who appears pro se, filed his Complaint on July 18, 2019. (Filing 1) He has been given leave to proceed in forma pauperis. (Filing 5) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         This is a Bivens action[1] in which Plaintiff seeks to recover damages from eleven federal prosecutors and FBI agents who obtained a conviction against him for securities and wire fraud in the United States District Court for the Southern District of Alabama.[2]

         II. STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, [3] or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         III. DISCUSSION

         Under 28 U.S.C. § 1406, if a plaintiff files a case in the wrong venue, the district court “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.” 28 U.S.C. § 1406(a). A district court has the discretion to either dismiss a plaintiff's claims or transfer the case, sua sponte (on its own motion). See Gaither v. Georgia, No. 4:19CV3029, 2019 WL 1789681, at *1 (D. Neb. Apr. 24, 2019); Grant v. U.S. Dep't of Def., No. 8:18CV247, 2018 WL 3383420, at *2 (D. Neb. July 11, 2018); Bastian v. United States, No. 8:17CV309, 2018 WL 618419, at *3 (D. Neb. Jan. 29, 2018); Jones v. Home, No. 8:16CV97, 2016 WL 3211817, at *2 (D. Neb. June 9, 2016).

         Venue for a Bivens action is governed by 28 U.S.C. § 1391, which provides that a civil action 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 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) 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).

         The allegations in Plaintiff's Complaint establish that the United States District Court for the District of Nebraska is the wrong venue for this case. None of the defendants reside in Nebraska. Ten of the defendants are Alabama residents, and the eleventh defendant resides in Arkansas. Only Plaintiff resides in Nebraska. Also, it does not appear that any ...


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