MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the motion to dismiss or change venue filed by the Department of Corrections Defendants [ECF No. 17] be granted in part. The motion to change venue should be granted while the Court should defer ruling on the motion to dismiss. It is further recommended that a ruling should also be deferred on the motion to dismiss filed by Defendant Stanish [ECF No. 15]. A decision on the motions to dismiss is best left to the transferee court.
By separate Order filed this date, Plaintiff's motion for appointment of counsel [ECF No. 5] is dismissed without prejudice.
II. REPORT
A. Relevant Procedural History
On July 31, 2017, Plaintiff Geronimo Rosado, Jr., initiated this civil rights action by filing apro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff is a former prisoner who is suing multiple Defendants for alleged violations of his constitutional rights during his incarceration within the State Correctional System. Plaintiff named thirty-one Defendants to this action and identified each as to their place of employment. Of the thirty-one named Defendants, the majority are identified as working at institutions (SCI-Dallas and SCI-Camp Hill) that are not within the Western District of Pennsylvania.
Shortly after the filing of the complaint, Plaintiff filed a motion for the appointment of counsel. ECF No. 5.
Following service of the complaint, the Department of Corrections Defendants filed a motion to dismiss or transfer for improper venue [ECF No. 17] and Defendant Dr. Stanish filed a motion to dismiss [ECF No. 15]. Plaintiff has opposed the pending dispositive motions both with opposition briefs and a proposed amended complaint. See ECF Nos. 34-44.
B. Standards of Review
1. Pro Se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.
2. Motion to dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a `showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "This `does not impose a probability requirement at the pleading stage,' but instead `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must take the following three steps:
First, the court must `tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, `because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, `where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
3. 28 U.S.C. § 1404(a)
Venue in non-diversity actions is proper only in: "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 the property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found . . ." 28 U.S.C. § 1391(b). If venue is proper in more than one district, 28 U.S.C. § 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Id.
"The party moving for dismissal or transfer based upon improper venue bears the burden of proof." Rabner v. Titelman, 2016 WL 1613444, at *4 (W.D.Pa. Apr. 22, 2016) citing Myers v. Am. Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982) and Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 401 F.Supp.2d 415, 418 (E.D. Pa. 2005). "When considering a motion to dismiss for improper venue, the court must generally accept as true the allegations in the pleadings and must view the facts in the light most favorable to the nonmoving party." Sinclair Cattle Co. v. Ward, 80 F.Supp.3d 553, 557-58 (M.D. Pa. 2015) quoting Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005).
The Third Circuit has explained:
In ruling on § 1404(a) motions, court have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on courts to `consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.' While there is no definitive formula or list of the factors to consider, courts have considered many variants of the private and public interests protected by the language of § 1404(a).
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (internal citation omitted).
C. Venue
Department of Corrections Defendants move for change of venue to the Middle District of Pennsylvania.
Defendants point out that Plaintiff's complaint bases its venue statement on a geographical error. In his complaint, Plaintiff contends that the events giving rise to the claims occurred at SCI-Dallas in the Western District of Pennsylvania. ECF No. 3, Complaint, ¶ 2. In this regard, Plaintiff's contention is mistaken — SCI Dallas is located within the Middle District of Pennsylvania.
The only ties to the Western District of Pennsylvania are Defendants Dr. Virgil and Dr. Pierson who allegedly treated Plaintiff during his incarceration at SCI Forest in 2005. Indeed, Plaintiff filed a previous lawsuit against Virgil and Pierson for claims arising out of a corneal transplant. See C.A. No. 09-156E.1 In Plaintiff's opposition to the motion for transfer of venue, as well as by Plaintiff's own admission in a recent hearing before this Court, Plaintiff acknowledges he filed this action in this Court because it is related to the prior civil action. See ECF No. 35, Opposition Brief, pages 1-27; ECF No. 38, Transcript, page 5 (lines 18-23). Plaintiff's belief in this regard does not make venue proper in the Western District.
Given that the majority of the named Defendants2 are located within the Middle District and the majority of the events complained of occurred within the Middle District, this case should be transferred to the Middle District. Defendants' motion for change of venue should be granted.
III. CONCLUSION
It is respectfully recommended that the motion to dismiss or change venue filed by the Department of Corrections Defendants [ECF No. 17] be granted in part. The motion to change venue should be granted while the Court should defer ruling on the motion to dismiss. It is further recommended that a ruling should be deferred on the motion to dismiss filed by Defendant Stanish [ECF No. 15]. A decision on the motions to dismiss is best left to the transferee court.
By separate Order filed this date, Plaintiffs motion for appointment of counsel [ECF No. 5] is dismissed without prejudice.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date listed below to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
