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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CARLOS McQUARLEY,

Plaintiff,

vs. Case No. 4:09cv343-RH/WCS

J. RICHERMAN PEARSON 

and J. GLORIA T. BAHAKER,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, submitted a civil rights complaint, doc. 1, on Aug 31,

2009, and a motion to proceed in forma pauperis, doc. 2. Ruling could not be entered

on the motion because it was not clear whether Plaintiff truly intended to initiate a civil

rights complaint or whether he was seeking habeas relief. Plaintiff was directed to

respond with clarification as to the nature of his claims, doc. 4, and his response, doc. 5,

indicates he seeks habeas relief. Plaintiff states that he wants this Court to help him

receive his freedom. Doc. 5.

Furthermore, the Order pointed out that Plaintiff is incarcerated in Alabama,

which was the location of both Defendants. Because it did not appear that this Court
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Case No. 4:09cv343-RH/WCS

had jurisdiction over this case, Plaintiff was directed to respond and demonstrate that

jurisdiction was appropriate here. Doc. 4. Plaintiff's response does not make that

demonstration. 

Because Plaintiff indicates he is located in Jefferson County, Alabama, which is

within the Northern District of Alabama, as are both of the Defendants, the proper forum

for this action pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 81(a) is in the United

States District Court for the Northern District of Alabama, Birmingham Division. 

A federal district court has the authority under 28 U.S.C. § 1406(a) to transfer a

case to another district or division "in which it could have been brought." The Eleventh

Circuit has recognized the court's ability to raise the issue of defective venue sua

sponte, but limited the court's ability to dismiss an improperly filed case for lack of venue

without giving the parties an opportunity to respond. Lipofsky v. New York State

Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988) (stating "a district court may

raise on its own motion an issue of defective venue or lack of personal jurisdiction; but

the court may not dismiss without first giving the parties an opportunity to present their

views on the issue.") The Lipofsky court did not place the same limitations on the

court's ability to transfer a case to the appropriate forum pursuant to 28 U.S.C. §

1404(a). See Lipofsky, 861 F.2d at 1259, n. 2. Thus, it is recommended that the case

be transferred rather than dismissed.

Although some courts have required the trial court to give the parties an

opportunity to respond to the transfer order prior to implementation of the order, a

hearing is not necessarily required on every transfer motion. Cf. Costlow v. Weeks, 790
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Case No. 4:09cv343-RH/WCS

F.2d 1486, 1488 (9th Cir. 1986) with Starnes v. McGuire, 512 F.2d 918, 934 (D.C. Cir.

1974). This case does not require a hearing.

In light of the foregoing, and pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), the

undersigned respectfully RECOMMENDS transfer of this action to the United States

District Court for the Northern District of Alabama, Birmingham Division, for all further

proceedings.

IN CHAMBERS at Tallahassee, Florida, on September 21, 2009.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.