United States District Court, D. Colorado
K.C. EISENBERGER, Plaintiff,
MARY FALLIN, KEVIN HERN, JIM BRIDENSTINE, STATE OF OKLAHOMA, Republican Party, Defendants.
RECOMMENDATION OF DISMISSAL
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Complaint. (ECF No.
Plaintiff proceeds pro se. The matter has been
referred to this Magistrate Judge for recommendation (ECF No.
The Court has considered the entire case file, the applicable
law, and is sufficiently advised in the premises. This
Magistrate Judge respectfully recommends that the Complaint
be dismissed without prejudice.
Factual and Procedural Background
K.C. Eisenberger, initiated this action on April 4, 2019, by
filing pro se a Complaint. (ECF No. 1). Mr.
Eisenberger sues three individuals who reside in Oklahoma, as
well as the State of Oklahoma. The allegations of the
Complaint are otherwise rambling and unintelligible.
April 8, 2019, the Court issued an order directing Plaintiff
to show cause, within 30 days, why this action should not be
dismissed for improper venue. (ECF No. 5). On April 18, 2019,
the copy of the April 8 Order sent to Plaintiff at the
Denver, Colorado address he provided in the Complaint was
returned to the Court as undeliverable. (ECF No. 6). Mr.
Eisenberger has not filed a notice of address change.
Court construes the Complaint liberally because Mr.
Eisenberger is not represented by an attorney. See Haines
v. Kerner, 404 U.S. 519, 52021 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court will not act as an advocate for a pro se litigant.
See Hall, 935 F.2d at 1110.
allegations of the Complaint indicate that venue is not
proper in the District of Colorado. The general federal venue
statute provides that 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). If venue is not proper, the court
may cure the defect sua sponte pursuant to 28 U.S.C.
§ 1406(a). See Trujillo v. Williams, 465 F.3d
1210, 1222 (10th Cir. 2006). Section 1406(a)
provides that “[t]he district court of a district in
which is filed a case laying venue in the wrong division or
district 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.” Plaintiff alleges
that the named Defendants reside in Oklahoma. (ECF No. 1 at
2). The Complaint does not contain any allegations of conduct
that occurred in Colorado. Moreover, the Complaint fails to
comply with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure.
recommend that this action be dismissed without prejudice for
improper venue because a transfer of this action to a federal
district court in ...