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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOY JANELLA COOPER,

Plaintiff,

vs. Case No. 3:11cv78/MCR/EMT

BREVARD COUNTY JAIL, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the court on a complaint alleging civil rights violations pursuant to 42

U.S.C. § 1983 (Doc. 1). Upon review of the complaint, the court concludes that venue is not proper

in the Northern District and thus that this case should be transferred to the United States District

Court for the Middle District of Florida.

Plaintiff is an inmate currently housed at Lowell Correctional Institution in Ocala, Florida. 

In the “Defendant(s)” section of the complaint form Plaintiff names three correctional officers at

Brevard County Jail (“BCJ”) where Plaintiff previously was incarcerated (Doc. 1 at 2); in the style

of the case Plaintiff also identifies BCJ as a Defendant (id. at 1). Plaintiff complains that while she

was held at BCJ, for reasons of “hate & spite,” she was placed for five months on “observation

watch which is only for unstable mental people, which I wasn’t . . . ” (id. at 7). When Plaintiff

became “indignant & upset” at being regularly patted down and “such things” while on observation

watch, she apparently engaged in “physical contact” with BCJ officials, which resulted in her being

convicted of battery and sentenced to five years in prison (id.). Asserting claims of “obstruction of

justice” and “exploitation,” Plaintiff seeks as relief to be released from prison and to be awarded

unspecified monetary damages (id. at 8).
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Venue for actions under 42 U.S.C. § 1983 is governed by 28 U.S.C. § 1391(b), which

provides:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship

may, except as otherwise provided by 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.

Id. Furthermore, 28 U.S.C. § 1404 provides: “[f]or 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.” 28 U.S.C. § 1404(a). The decision to transfer an action pursuant to

§ 1404(a) is left to the “sound discretion of the district court and [is] reviewable only for an abuse

of that discretion.” Roofing & Sheeting Metal Serv. v. La Quinta Motor Inns, 689 F.2d. 982, 985

(11th Cir. 1982). Such transfers may be made sua sponte by the district court. Mills v. Beech

Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989); Robinson v. Madison, 752 F. Supp. 842, 846

(N.D. Ill. 1990) (“A court’s authority to transfer cases under § 1404(a) does not depend upon the

motion, stipulation or consent of the parties to the litigation.”); Empire Gas Corp. v. True Value Gas

of Florida, Inc., 702 F. Supp. 783, 784 (W.D. Mo. 1989); accord Roofing & Sheeting, 689 F.2d at

991 n.14.

In analyzing the issue of proper venue in the context of motions to dismiss under the federal

doctrine of forum non conveniens, courts have looked to certain factors set forth by the United States

Supreme Court relating to the private interest of the litigants and the public interest in the fair and

efficient administration of justice. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09, 67 S. Ct.

839, 843, 91, L. Ed. 1055 (1988), superseded by statute on other grounds as explained in American

Dredging Co. v. Miller, 510 U.S. 443, 449 n.2, 114 S. Ct. 981, 986 n.2, 127 L. Ed. 2d 285 (1994);1

 1 In American Dredging, the Court explained:

Gilbert held that it was permissible to dismiss an action brought in a District Court in New York by

a Virginia plaintiff against a defendant doing business in Virginia for a fire that occurred in Virginia.

Such a dismissal would be improper today because of the federal venue transfer statute, 28 U.S.C.

§ 1404(a): “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.” By this

statute, “[d]istrict courts were given more discretion to transfer . . . than they had to dismiss on

Case No. 3:11cv78/MCR/EMT
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accord Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir. 1983).2 While forum non conveniens

would not apply in a case such as this where there exists an alternative federal forum in which this

case could have been brought and to which this case may be transferred, the factors enunciated in

Gilbert, which provide the basis for a court’s analysis of the relative fairness and convenience of two

alternative forums, are helpful in determining whether to effect a change in venue under section

1404(a).

The factors set forth in Gilbert are as follows:

[i]mportant considerations are the relative ease of access to sources of proof;

availability of compulsory process for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses; possibility of view of premises, if view

would be appropriate to the action; and all of the practical problems that make trial

of a case easy, expeditious and inexpensive. . . . Factors of public interest also have

[a] place in applying the doctrine. Administrative difficulties follow for courts when

litigation is piled up in congested centers instead of being handled at its origin. Jury

duty is a burden that ought not to be imposed upon the people of a community which

has no relation to the litigation. . . .

Gilbert, 330 U.S. at 508–09.

In the instant case, the acts or occurrences forming the basis of the complaint occurred in

Brevard County, Florida, which is located in the Middle District. Thus, attendance of witnesses and

availability of sources of proof favor a transfer there. Moreover, this community appears to have

no relation to the litigation at issue. Neither the private interest of the litigants nor the public interest

in the administration of justice is even minimally advanced by venue being maintained in this

grounds of forum non conveniens.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S. Ct. 252,

264, 70 L. Ed. 2d 419 (1981). As a consequence, the federal doctrine of forum non conveniens has

continuing application only in cases where the alternative forum is abroad.

American Dredging, 510 U.S. at 449 n.2. 

 2 In Cowan, the Fifth Circuit explained the proper applicability of the doctrine of forum non conveniens in

light of the enactment of section 1404(a): 

Section 1404(a) superseded the common law doctrine of forum non conveniens insofar as transfer to

another federal district court is possible. As the Supreme Court pointed out in Norwood v.

Kirkpatrick, “the harshest result of the application of the old doctrine of forum non conveniens,

dismissal of the action, was eliminated by the provision in § 1404(a) for transfer.” 349 U.S. 29, 32,

75 S. Ct. 544, 546, 99 L. Ed. 789 (1955).

Cowan, 713 F.2d at 103 (additional citations omitted).

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district.3 Therefore, in the interest of justice, this action should be transferred to the United States

District Court for the Middle District of Florida.

Accordingly, it is respectfully, RECOMMENDED:

1. That this case be transferred to the United States District Court for the Middle District

of Florida.

2. That the clerk be directed to close the file.

At Pensacola, Florida, this 23rd day of February 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

 3 Although Plaintiff’s choice of forum is ordinarily given consideration, Norwood v. Kirkpatrick, 349 U.S. 29,

32 (1955), “where the operative facts underlying the cause of action did not occur within the forum chosen by Plaintiff,

the choice of forum is entitled to less consideration.” Windmere Corp. v. Remington Products, Inc., 617 F. Supp. 8, 10

(S.D. Fla. 1985) (citations omitted). 

Case No. 3:11cv78/MCR/EMT