IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RODNEY MURPHY, :

Plaintiff, :

vs. : CA 15-0206-CB-C

SECRETARY, UNITED STATES :

DEPARTMENT OF HUD,

:

Defendant.

REPORT AND RECOMMENDATION

Following a review of the plaintiff’s pro se complaint, which names as the sole 

defendant the Secretary of the United States Department of Housing and Urban 

Development in his official capacity (Doc. 1), and the motion to proceed without 

prepayment of fees, which sets forth plaintiff’s present and former addresses in 

Montgomery, Alabama (Doc. 2, at 1-2), the undersigned set this matter down for a 

telephone conference in order to obtain further information from Mr. Murphy 

regarding the nature of his claim (see Doc. 3). A consideration of the information 

supplied by Mr. Murphy convinces the undersigned that this Court need transfer this 

case to the United States District Court for the Middle District of Alabama, and, 

therefore, recommendation of such transfer is now made in accordance with 28 U.S.C. § 

636(b)(1)(B).

During the telephone conference on April 30, 2015, Mr. Murphy advised the 

undersigned that he and his common law wife moved into an abandoned house at 220 

Mizell Drive in Montgomery, Alabama 36616 and started revitalizing the property 

before being evicted from the house by HUD following HUD’s institution of eviction 

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proceedings in the Circuit Court of Montgomery County, Alabama. Thereafter, Mr. 

Murphy, who resides at 3010 Renee Drive in Montgomery, Alabama, filed the present 

action in this Court on April 15, 2015 against the Secretary of Housing and Urban 

Development in his official capacity, claiming that he was deprived of his property 

without due process of law. (See Doc. 1, at 1-2.) All acts complained of in the complaint 

occurred in Montgomery, Alabama1 (see id.), plaintiff resides in Montgomery, Alabama

(id. at 2), and the defendant resides in Washington, D.C.; therefore, it is clear to the 

undersigned that venue of this case is proper in the United States District Court for the 

Middle District of Alabama, Northern Division. Mr. Murphy was informed during the 

telephone conference on April 30, 2015 that the undersigned would recommend that his 

case be transferred to the Middle District of Alabama and he identified no prejudice he 

would suffer by a transfer of his action to the Middle District of Alabama.2

DISCUSSION

The general venue statute provides that “[a] civil action in which a defendant is 

an officer or employee of the United States or any agency thereof acting in his official 

capacity or under color of legal authority, or an agency of the United States, or the 

United States, may, except as otherwise provided by law, be brought in any judicial 

district in which (A) a defendant in the action resides, (B) a substantial part of the 

events or omissions giving rise to the claim occurred, or a substantial part of property 

 1 Montgomery, Alabama, of course, is in Montgomery County, which falls in the 

Northern Division of the Middle District of Alabama. 28 U.S.C. § 81(b)(1) (“The Middle District 

comprises three divisions. [] The Northern Division comprises the counties of Autauga, 

Barbour, Bullock, Butler, Chilton, Coosa, Covington, Crenshaw, Elmore, Lowndes, 

Montgomery, and Pike. Court for the Northern Division shall be held at Montgomery.”). 

2 It is apparent to the undersigned that a transfer of this action will behoove Mr. 

Murphy since he resides in Montgomery, Alabama and court for the Northern Division of the 

Middle District of Alabama will be held in Montgomery.

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that is the subject of the action is situated, or (C) the plaintiff resides if no real property 

is involved in the action.” 28 U.S.C. § 1391(e)(1). This subsection of the general venue 

statute clearly applies to this case since Mr. Murphy has filed suit against the Secretary 

of Housing and Urban Development in his official capacity (Doc. 1, at 1). See id. 

However, it is just as clear that venue is improperly laid in this Court, the United States 

District Court for the Southern District of Alabama, inasmuch as the defendant does not 

reside in this district, 

http://en.wikipedia.org/wiki/United_States_Secretary_of_Housing_and_Urban_Devl

opment (last visited April 16, 2015) (defendant resides in Washington, D.C.), the events 

giving rise to plaintiff’s claim occurred in Montgomery, Alabama (and the property that 

is arguably the subject of this action is situated in Montgomery, Alabama) rather than in 

this district, and the plaintiff (along with the property) resides in Montgomery, 

Alabama and not in this district. Accordingly, it is RECOMMENED that this case be 

TRANSFERRED to the United States District Court for the Middle District of Alabama, 

a district “in which it could have been brought[,]” 28 U.S.C. § 1406(a); see Kidwell v. 

Arison, 2013 WL 3927822, *1 (S.D. Fla. Jul. 24, 2013) (“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 Compensation Board], 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

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transfer a case to the appropriate forum pursuant to 28 U.S.C. § 140[6](a).” (emphasis 

supplied)), the plaintiff having identified no reason why such transfer would be 

prejudicial to him.

CONCLUSION

In light of the foregoing, it is RECOMMENDED that this action be 

TRANSFERRED to the United States District Court for the Middle District of Alabama, 

Northern Division, pursuant to 28 U.S.C. § 1406(a). 

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, 

“[a] party failing to object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based 

on unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on appeal for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection 

must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

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specific.

DONE this the 1st day of May, 2015. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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