United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Thomas Gary Hubbs, Jr., appearing pro se and in
forma pauperis, brings this action under 42 U.S.C.
§ 1983 and 18 U.S.C. § 241 alleging various
violations. (ECF No. 1). At issue is a Motion to Transfer
Venue filed by the Defendants in this action. (ECF
No. 20). The Court should: (1) dismiss
Plaintiff's claim for injunctive relief and (2) transfer
the action to the United States District Court for the
Eastern District of Oklahoma.
PLAINTIFF'S CLAIMS AND RELIEF SOUGHT
13, 2015, Plaintiff was arrested in Henryetta, Oklahoma. (ECF
No. 1:10-13). During the arrest, Plaintiff alleges that
Henryetta, Oklahoma police officer Joey Cantrell
“tasered” Mr. Hubbs, handcuffed him, and
“while in handcuffs . . . continued to taser [him] and
beat [him] up until backup arived [sic].” (ECF No.
1:11). Henryetta, Oklahoma police officials Brandon England
and Jeremy Wade arrived as “backup.” (ECF No.
1:12) According to Plaintiff, Officer England stomped on
Plaintiff's head, neck, and back while Officer Cantrell
continued to taser Mr. Hubbs. (ECF No. 1:10-11). During the
alleged assault, Plaintiff states that Officer England told
Officer Cantrell to turn off his body camera. (ECF No. 1:10).
Plaintiff also alleges that Defendants Norman and Wade
“witnessed the assault . . . and niether [sic] did they
try to stop it or report it.” (ECF No. 1:12).
Hubbs is suing all four Defendants in their official and
individual capacities under theories involving conspiracy,
excessive force, attempted murder, assault and the Eighth
Amendment. (ECF No. 1:4-5, 7, 10-13). Plaintiff seeks
monetary damages and injunctive relief. (ECF No. 1:8).
PLAINTIFF'S CLAIMS FOR INJUNCTIVE RELIEF
Hubbs requests injunctive relief in the form of asking the
Court to “press criminal charges on the
defendants.” (ECF No. 1:8). “The decision to file
criminal charges is a quintessential prosecutorial
function[.]” Blazier v. Larson, 443 F.
App'x 334, 336 (10th Cir. 2011). The district court has
no power to order criminal charges to be brought against the
Defendants even if such charges were warranted. Accordingly,
the Court should dismiss Plaintiff's claims for
injunctive relief, with prejudice.
THE PROPRIETY OF VENUE IN THE WESTERN DISTRICT OF OKLAHOMA A.
Statutory Basis for Venue
applicable venue statute provides:
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 a substantial
part of property that is the subject of the action is
situated; 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
28 U.S.C. § 1391(b). The Court should conclude that
venue is proper under § 1391(b)(1) or (2), but not in
the Western District of Oklahoma.
Consideration of Venue Under § 1391(b)(1)
argue that venue in the Western District of Oklahoma cannot
be based on 28 U.S.C. § 1391(b)(1) because none of them
reside in this judicial district. (ECF No. 21:4). Indeed,
Plaintiff apparently agrees, as in his Complaint, he stated
that all four Defendants resided in Henryetta, Oklahoma,
which lies in the Eastern District of Oklahoma. (ECF No. 1:4-5).
Consideration of Venue ...