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Hubbs v. Wade

United States District Court, E.D. Oklahoma

December 21, 2017

THOMAS GARY HUBBS, JR., Plaintiff,
v.
JEREMY WADE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. PLAINTIFF'S CLAIMS AND RELIEF SOUGHT

         On July 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).

         Mr. 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).

         II. PLAINTIFF'S CLAIMS FOR INJUNCTIVE RELIEF

         Mr. 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[.]" Blazierv. Larson, 443 Fed.Appx. 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.

         III. THE PROPRIETY OF VENUE IN THE WESTERN DISTRICT OF OKLAHOMA

         A. Statutory Basis for Venue

         The 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 action.

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.

         B. Consideration of Venue Under § 1391(b)(1)

         Defendants 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 ...


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