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Cedric Ah Sing, #A0112164 v. Shari Kimoto

April 17, 2012

CEDRIC AH SING, #A0112164,
PLAINTIFF,
v.
SHARI KIMOTO, DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING MOTION TO CHANGE VENUE

Pro se Plaintiff Cedric Ah Sing is a Hawaii state prisoner incarcerated at the Saguaro Correctional Center ("SCC"), located in Eloy, Arizona.*fn1 On February 17, 2012, Defendant Shari Kimoto, Mainland Administrator for the Hawaii Department of Public Safety ("DPS"), timely removed this action from the Circuit Court of the First Circuit, State of Hawaii, pursuant to 28 U.S.C. § 1441(b). See ECF No.1.

Kimoto now seeks a change of venue to the District of Arizona. ECF No. 5. Based on the following, Kimoto's Motion to Change Venue is GRANTED and this action is TRANSFERRED to the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 1404(a).

I. BACKGROUND

Plaintiff alleges that, on or about August 13, 2008, SCC Assistant Warden Ben Griego ordered him placed in pre-hearing segregation while prison officials investigated an incident that allegedly occurred four months earlier, on April 9, 2008. See ECF No. 1-2, Compl. at 1, 14. Plaintiff complains that Griego violated CCA policies and procedures by doing so.

On September 3, 2008, SCC officials concluded the investigation, charged Plaintiff with conspiring with his son (who was also incarcerated at SCC) to assault another inmate, and issued Plaintiff a notice of the charges and forthcoming hearing. See id. at 15. On September 11, 2008, SCC Sergeant Trejo conducted the disciplinary hearing, found Plaintiff guilty, and sanctioned him to sixty days in segregation. These charges were upheld after Plaintiff's appeal. Id.

Plaintiff does not explain Kimoto's connection to this incident and it is not clear what actions she took to violate his constitutional rights. Plaintiff simply alleges that Kimoto violated his right to due process under the United States and Hawaii Constitutions by condoning Griego's and Trejo's actions. Id. at 3. Plaintiff complains that "Kimoto's inaction and failure to recognize the Wolff v. McDonnell*fn2 rule of due process . . . created an atypical and significant hardship" on him. Id. Although not clear, it appears that Kimoto may have denied Plaintiff's grievance concerning this incident. Plaintiff alleges that, because of his placement in segregation, he was forced to surrender his personal items, and that Kimoto is therefore responsible for the loss of this property.

II. LEGAL STANDARDS

The removal statute, rather than the general venue statute, governs venue in cases removed from state court. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953); Davis v. Abercrombie, 2011 WL 2118276, at *4 (D. Haw. May 27, 2011). Venue of a properly removed action is in the "district of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). And, although venue in Hawaii is proper, this action may still be transferred to the District of Arizona pursuant to 28 U.S.C. § 1404(a). See 14C Charles Alan Wright et al., Federal Practice and Procedure § 3732 ("Even when venue is proper in the federal court, a removed action may be transferred to another federal district court in accordance with various federal transfer provisions, most notably Section 1404(a)[.]").

"Under § 1404(a), the district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)) (quotation marks omitted). The purpose of transfer under § 1404(a) is "'to prevent the waste of time, energy, and money', and 'to protect litigants, witnesses, and the public against unnecessary inconvenience and expense.'" Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1213 (D. Haw. 2002) (quoting Lung v. Yachts Int'l, 980 F. Supp. 1362, 1369 (D. Haw. 1997)) (further citation omitted). Thus, to transfer a case, a defendant must first show that the transferee court is one in which the action could have been commenced originally, and that the transfer would result in greater convenience to the parties and witnesses, as well as advance the interest of justice. 28 U.S.C. § 1404(a).

The court must weigh several factors to determine whether to transfer a case pursuant to § 1404(a), including:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

Jones, 211 F.3d at 498-99. "Ultimately, the moving party has the burden of showing that an alternative forum is the more ...


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