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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHAEL D. CORN

Inmate #947796, 

 Plaintiff,

vs. Case No.: 3:10cv341/MCR/MD

WALTER A. McNEIL, Secretary of the 

 Florida Department of Corrections, et al.

 Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner proceeding pro se, commenced this action by filing

a civil rights complaint under 42 U.S.C. § 1983 and a motion to proceed in forma

pauperis. (Doc. 1 & 2). Upon review of the complaint, it is apparent that venue is not

proper in this court. Accordingly, this case should be transferred. 

Plaintiff is presently confined at the Everglades Correctional Institution in

Miami, Florida, and there is no indication that he was confined anywhere other than

this institution during the events giving rise to this complaint. He names five

defendants in this matter: Walter A. McNeil, Secretary of the Florida Department of

Corrections, Kathleen L. Fuhrman, FDOC Public Health Nutrition Program Manager,

Dora Jurado, Food Service Director at ECI, ECI Warden John Willis, and Charles

Tervull, FDOC Food Service Program Manager. He claims that the DOC is trying to

save money on food costs and he has suffered kidney and colon damage as a result

of the dietary changes. He also asserts that over 50 inmates have died in the past

few months at ECI because of the food served there.

Venue for actions under 42 U.S.C. § 1983 is governed by 28 U.S.C. § 1391(b),

which provides:
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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. In the instant case, the harm that allegedly occurred took place at ECI, which is

located within the Southern District. Two of the defendants, Warden Willis and Ms.

Jurado, reside in the Southern District. The case therefore could have been brought

in the Southern District of Florida. However, three of the defendants, Secretary

McNeil, Ms. Furman and Mr. Tervull, reside in the Northern District of Florida, albeit

the Tallahassee Division. And, to the extent there is central control over the menu

plans used by the individual institutions, those decisions were made in the

Tallahassee Division. Thus, the case also could have been filed in that court. 

Neither the parties nor the actions complained of has anyapparent connection to the

Pensacola division.

Title 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

anyother 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 Services v. La Quinta Motor Inns, 689 F.2d

982, 985 (11 Cir. 1982). Such transfers may be made sua sponte by the district

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court. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5 Cir. 1989); Robinson v. th

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

Case No: 3:10cv341/MCR/MD
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factors set forth by the Supreme Court of the United States 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); accord Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5 Cir. 1983). While

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forum non conveniens would not apply in a case such as this where there exists two

alternative federal forums 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 the most appropriate venue under

section 1404(a).

The factors set forth in Gilbert are as follows:

In American Dredging, the Court explained:

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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 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, 114 S.Ct. at 986, n.2.

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

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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).

Case No: 3:10cv341/MCR/MD
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[i]mportant considerations are the relative ease of access to sources

of proof; availabilityof compulsoryprocess 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, 67 S.Ct. at 843.

In the instant case, despite the facts that plaintiff’s alleged injury occurred in

the Southern District of Florida and two of the defendants are located there, the

decisions about the system-wide meal plan that would have led to the alleged injury

occurred within the Northern District. Therefore, attendance of witnesses and

availability of sources of proof slightly favor a transfer there. Moreover, the

Pensacola division 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 district. Therefore, 3

in the interest of justice, this action should be transferred to the Tallahassee

Division of this court so that plaintiff may proceed.

Accordingly, it is respectfully RECOMMENDED:

That this case be TRANSFERRED to the United States District Court for the

Northern District of Florida, Tallahassee Division, and the clerk be directed to close

this file.

Although the plaintiff’s choice of forum is ordinarily given consideration, Norwood v. Kirkpatrick,

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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).

Case No: 3:10cv341/MCR/MD
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DONE AND ORDERED this 20 day of September, 2010.

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 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen 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, and does not control. 

A copy of objections shall be served upon 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 (11 Cir. 1988). th

Case No: 3:10cv341/MCR/MD