United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
DISMISS THE COMPLAINT WITHOUT PREJUDICE AND DENY
PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYING FEES
RICHARD L. PUGLISI, Magistrate Judge.
the Court is Plaintiff Shaun Rosiere's Application to
Proceed in District Court Without Prepaying Fees or Costs
("Application"), filed on May 23, 2016. ECF No. 2.
As discussed below, the Court FINDS AND RECOMMENDS that the
district court DISMISS this action without prejudice and DENY
may authorize the commencement of any suit without prepayment
of fees by a person who submits an affidavit that the person
is unable to pay such fees. 28 U.S.C. Â§ 1915(a)(1). The Court
must subject each civil action commenced pursuant to Section
1915(a) to mandatory screening and order the dismissal of any
claim that it finds "frivolous, malicious, failing to
state a claim upon which relief may be granted, or seeking
monetary relief from a defendant immune from such
relief." 28 U.S.C. Â§ 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (stating that
28 U.S.C. Â§ 1915(e) "not only permits but requires"
the court to dismiss a Â§ 1915(a) complaint that fails to
state a claim); Calhoun v. Stahl, 254 F.3d 845, 845
(9th Cir. 2001) (holding that the provisions of 28 U.S.C. Â§
1915(e)(2)(B) are not limited to prisoners).
Plaintiff filed a Freedom of Information Act
("FOIA") "Complaint for Relief Pursuant to
Title 5 U.S.C. Â§ 552, " seeking documents related to
various criminal cases. See ECF No. 1 at 1. Specifically,
Plaintiff attached to his Complaint copies of fourteen FOIA
letter requests seeking copies of the Oaths of Office and
Appointments to Office of Judge Garret R. Brown, Jr., U.S.
District Court for the District of New Jersey, Judge James C.
Mahan, U.S. District Court of Nevada, Judge Jerome B.
Simandle, U.S. District Court for the District of New Jersey,
Judge Lewis T. Babcock, U.S. District Court for the District
of Colorado, certain documents related to criminal case
number 09-720 in the U.S. District Court for the District of
New Jersey and civil case number 05-2589 in the U.S. District
Court for the District of Colorado, documents related to a
criminal indictment, and copies of the Oaths of Office and
Appointments to Office of AUSA John Jay Hoffman, Peter N.
Katz, Matthew T. Smith, and Ralph J. Marra, Jr. See ECF Nos.
1-1 through 1-14. Plaintiff's FOIA letter requests
specify that the records at issue are located in Colorado,
New Jersey, and Washington, D.C. Id . The FOIA
letter requests are dated between March 25, 2016, and April
1, 2016. Id.
FOIA, an agency may be sued in the district where Plaintiff
resides, where Plaintiff has his principal place of business,
where the records are located, or in the District of
Columbia. See 5 U.S.C. Â§ 552(a)(4)(B). Based on
Plaintiff's Complaint, Plaintiff resides in Las Vegas,
Nevada. See ECF No. 1 at 3. There is no indication in the
Complaint that his principal place of business is in Hawaii.
Id . As noted above, the records at issue are
located in Colorado, New Jersey, and Washington, D.C. See ECF
Nos. 1-1 through 1-14. Accordingly, the District of Hawaii is
not the proper venue for Plaintiff's FOIA Complaint.
28 U.S.C. Â§ 1406(a), if a case is filed in the wrong venue,
the court "shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought." 28 U.S.C. Â§ 1406(a).
A court should examine a plaintiff's claim to determine
whether the interests of justice require transfer instead of
dismissal. See, e.g., King v. Russell, 963 F.2d
1301, 1305 (9th Cir. 1992).
based on the information in the Complaint, it is not in the
interests of justice to transfer this action. It appears
based on the dates of Plaintiff's FOIA requests that
Plaintiff's claims are well within the six-year statute
of limitations. See 28 U.S.C. Â§ 2401(a); Spannaus v. U.S.
Dep't of Justice, 824 F.2d 52, 56 (applying Section
2401(a)'s six-year statute of limitations to FOIA
claims). Therefore, Plaintiff would not be time barred from
re-filing this action in another venue. Additionally, it is
difficult for the Court to determine where venue is most
appropriate because there are several venues available to
Plaintiff including the district where he resides,
Washington, D.C., or the three districts where the documents
at issue are located if Plaintiff wishes to file separate
actions. In these circumstances, the Court finds that it is
not in the interests of justice to transfer this action.
Accordingly, the Court RECOMMENDS that the district court
DISMISS WITHOUT PREJUDICE the present action for want of
venue. Plaintiff may pursue his claims in the proper court.
Because the Court recommends dismissal, Plaintiff's
Application is moot. Accordingly, the Court RECOMMENDS that
Plaintiff's Application be DENIED AS MOOT.
Court FINDS AND RECOMMENDS that the district court DISMISS
Plaintiff's Complaint WITHOUT PREJUDICE and DENY AS MOOT
Plaintiff's Application to Proceed Without Prepaying Fees
SO FOUND AND RECOMMENDED.
 Within fourteen days after a party is
served with a copy of the Findings and Recommendation, that
party may, pursuant to 28 U.S.C. Â§ 636(b)(1), file written
objections in the United States District Court. A party must
file any objections within the fourteen-day period allowed if
that party wants to have appellate review of the Findings and