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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RAFAEL A. LLOVERA,

Plaintiff,

vs. Case No. 4:10cv338-SPM/WCS

BROWARD SHERIFF'S OFFICE,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se and in forma pauperis, filed a pleading in

this court which was construed as a civil rights complaint under 42 U.S.C. § 1983 due to

the nature of the relief requested. Doc. 1. Plaintiff did not submit an in forma pauperis

motion when the case was initiated, and was directed to either submit the filing fee or

file a motion seeking leave to proceed in forma pauperis. Doc. 4. Plaintiff has now filed

several motions in this court. A motion for supplemental jurisdiction, doc. 5, a motion for

leave to proceed in forma pauperis, doc. 6, and a motion to review his petition as a writ

of mandamus or extraordinary writ, doc. 7. Rather than rule on any of these motions,

this case should be summarily transferred to the Southern District of Florida.
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Plaintiff is located in Miami, Florida, and is suing the Broward County Sheriff's

office. The events are alleged to have taken place in and around Pompano Beach,

Florida. Doc. 1, p. 2. Because Pompano Beach is located in Broward County, Florida,

which is the Southern District of Florida, the proper forum for this action pursuant to 28

U.S.C. § 1391(b) and 28 U.S.C. § 89(c) is in the United States District Court for the

Southern District of Florida, Broward Division. 

Additionally, review of the in forma pauperis motion, doc. 6, suggests that Plaintiff

has filed numerous cases already and he may or may not be entitled to proceed in

forma pauperis. The Southern District will undoubtedly be more familiar with Plaintiff's

litigation history and sits in a better position to make that determination.

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.

Case No. 4:10cv338-SPM/WCS
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In light of the foregoing, and pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), I

respectfully RECOMMEND transfer of this action to the United States District Court for

the Southern District of Florida, Broward Division, for all further proceedings, including

review of all pending motions.

IN CHAMBERS at Tallahassee, Florida, on September 1, 2010.

 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 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

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

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv338-SPM/WCS