United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on initial review of
Plaintiff's Complaint filed under 42 U.S.C. § 1983,
(Doc. No. 1), and on Plaintiff's Motion to Change Venue,
(Doc. No. 9). Plaintiff is proceeding in forma
pauperis. See (Doc. No. 8).
se Plaintiff filed this action pursuant to 42 U.S.C.
§ 1983 in the United States District Court for the
District of Columbia. (Doc. No. 1). The District of Columbia
court transferred the matter to this Court due to improper
venue. (Doc. No. 3). Plaintiff names as the sole Defendant
Eric A. Hooks, Secretary of the Department of Public Safety.
The Complaint alleges verbatim:
The Defendant/Respondent violated my constitutional rights to
a fair trial by responding to a case against the State of
North Carolina, and not Department of Public Safety Prisons
System. The Defendant had no right to be a Respondent in this
case #1:18-cv-00273-FDW. Because this case did not involved
the North Carolina Department of Public Safety prison system.
The Plaintiff is asking for a jury trial and $5 billion
dollars in damages Plaintiff is own attorney.
(Doc. No. 1 at 1).
MOTION FOR CHANGE OF VENUE
the general venue provision of 28 U.S.C. § 1391(b), a
civil action may be brought in “(1) a judicial district
in which any defendant resides, if all defendants are
residents of the State in which the district is located; (2)
a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred . . .; or (3)
if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in
which any defendant is subject to the court's personal
jurisdiction with respect to such action.” 28 U.S.C.
§ 1391(b). For venue purposes, a “natural
person” resides in the district where the person is
domiciled. 28 U.S.C. § 1391(c)(1).
is presently incarcerated at the Alexander Correctional
Institution in Taylorsville, North Carolina. The case to
which he refers in his Complaint, 1:18-cv-00273-FDW, is a
habeas case that was filed in this Court pursuant to 28
U.S.C. § 2254 addressing a Buncombe County, North
Carolina, criminal case.
the alleged acts or omissions occurred in the District of
Columbia and no party resides there. The District Court for
the District of Columbia properly transferred the case to
this Court due to lack of venue. Plaintiff's Motion to
change venue back to the District of Columbia will therefore
extent that Plaintiff alleges that the Clerk of Court is
prejudiced against him, this allegation is insufficient to
warrant any relief. Liberally construing the Motion, it
appears that Plaintiff may be asking the Court to recuse
itself pursuant to 28 U.S.C. § 144. Under § 144, a
litigant may seek recusal of a judge if the litigant files
“a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party.” 28 U.S.C. § 144. The Clerk of Court is not
a judge, and therefore § 144 does not apply. Moreover,
Plaintiff's allegations - that the Clerk of Court entered
judgment against him pursuant to the Court's Order
denying and dismissing the § 2254 petition with
prejudice, does not merit any relief. See generally
Marty's Floor Covering Co. v. GAF Corp., 604 F.2d
266 (4th Cir. 1979). Therefore, to the extent that
Plaintiff moves for the Court's recusal, it will be
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma
pauperis, the Court must review the Complaint to
determine whether it is subject to dismissal on the grounds
that it is “(i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). In its
frivolity review, the Court must determine whether the
Amended Complaint raises an indisputably meritless legal
theory or is founded upon clearly baseless factual
contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A
complaint should not be dismissed for failure to state a
claim “unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
pro se complaint must be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); see
also Smith v. Smith, 589 F.3d 736, 738 (4th
Cir. 2009) (“Liberal construction of the pleadings is
particularly appropriate where … there is a pro
se complaint raising civil rights issues.”).
However, the liberal construction requirement will not permit
a district court to ignore a clear failure to allege facts in
his complaint which set forth a claim that is cognizable
under federal law. Weller v. Dep't of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990). A
pro se complaint must still contain sufficient facts
“to raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (the Twombly
plausibility standard applies to all federal civil complaints
including those filed under § 1983). This
“plausibility standard requires a plaintiff to
demonstrate more ...