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Johnson-Ester v. Schwarzenegger

March 25, 2010

GLORIA L. JOHNSON-ESTER AS GUARDIAN AND ON BEHALF OF MONTELL JOHNSON, A/K/A MARCELLUS BATES, PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, GOVERNOR OF THE STATE OF CALIFORNIA, MATTHEW CATE, SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ROBIN DEZEMBER, CHIEF DEPUTY SECRETARY OF HEALTH CARE SERVICES FOR THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, AND UNKNOWN DEFENDANTS A, B, AND C, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiffs Gloria L. Johnson-Ester and Montell Johnson seek to enjoin the return of Johnson, an inmate in the Illinois prison system, to the California Department of Corrections and Rehabilitation ("CDCR"). Defendants Arnold Schwarzenegger, Governor of the State of California, and Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation,*fn1 have moved to dismiss or, in the alternative, transfer [18] this § 1983 action to the district where Defendants reside, specifically, the Eastern District of California. For the reasons set forth below, the Court grants Defendants' motion to transfer venue [18] and declines to address Defendants' alternative motion to dismiss.

I. Background

A. Executive Agreement between Illinois and California

In 1998, Montell Johnson was convicted of voluntary manslaughter in California and sentenced to life without parole. In December 1998, former-Governor Jim Edgar of Illinois and former-Governor Pete Wilson of California signed an Executive Agreement for the extradition of Johnson to the State of Illinois for prosecution of four counts of murder. The Executive Agreement specifically stated that Johnson would be "made available" to the State of California for placement within the CDCR upon the commutation of his Illinois death sentence. In 1999, Johnson was convicted of murder in Illinois and sentenced to death. This death sentence was commuted to forty years in 2003. While serving his Illinois sentence, Johnson was diagnosed with multiple sclerosis ("MS"). By April 2006, he had been diagnosed as a paraplegic with advanced secondary progressive MS, and former Illinois Governor Rod Blagojevich granted Johnson's petition for medical clemency in 2008. Mr. Johnson currently remains in the custody of Illinois prison officials, but California prison officials seek transfer of Mr. Johnson to their custody under the Executive Agreement.

B. 2007 Lawsuit between Plaintiffs and Illinois Prison Officials

In July 2007, Plaintiffs in this action filed a separate lawsuit pursuant to 42 U.S.C. §1983, alleging that Johnson's Eighth Amendment rights were violated when the correctional facility where he was housed failed to render adequate medical care and further alleging that Plaintiff Gloria Johnson-Ester's First Amendment rights were violated when the warden at the same facility prevented Ms. Johnson-Ester from visiting and communicating with her son. The issues raised in that lawsuit are now pending before this Court on Defendants' motions for summary judgment. Since both cases involve claims relating to the medical care of the same individual, Montell Johnson, this 2009 case was reassigned from District Judge Charles Kocoras to this Court on October 14, 2009.

This Court is familiar with the contentions of Plaintiffs in both actions concerning the proposed transfer of Mr. Johnson from Illinois to California prison officials. Johnson clearly has serious, well-documented health issues. In fact, on the suggestion and with the agreement of the parties, in the earlier filed case, the Court has appointed a medical expert (see Fed. R. Evid. 706) to examine Mr. Johnson and provide input into his fitness for such a transfer. In early March 2010, the court-appointed medical expert, Dr. Demetrios Skias, examined Johnson to determine his fitness for a transfer to California. In a report provided to the Court on March 3 (and supplemented early in the following week), Dr. Skias opined as follows:

In summary, Mr. Johnson is in an advanced stage of multiple sclerosis with many severe and fixed neurological deficits. At this stage, sudden change of the neurologic status from this disease is very unlikely to occur. Therefore, from the neurological point of view, and in my opinion, the patient can, with reasonable degree of safety, be transported to outside this State provided the appropriate ambulance transport and support is provided * * * * Additionally, the patient has to be cleared medically for travel by his current primary care physicians, or other internists, just prior to departure to ensure that there are no last minute medical complications, including infections, pulmonary and cardiovascular problems, or from any other body system, that could adversely, albeit temporarily, impact the neurologic status and possibly reduce the margin of safety during travel.

Having advised the parties that Dr. Skias has rendered his opinion, the Court now turns to the question of whether this district is a proper venue for Plaintiffs' lawsuit against the California state officials.

II. Analysis

A. Venue

Federal Rule of Civil Procedure 12(b)(3) allows for a motion to dismiss due to improper venue. See Cont'l Ins. Co. v. M/V Orsula, 354 F.3d 603, 606-07 & n.2 (7th Cir. 2003). The district 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," any case filed in the wrong venue. 28 U.S.C. § 1406(a). Venue statutes serve the purpose of "protecting a defendant from the inconvenience of having to defend an action in a trial court that is either remote from the defendant's residence or from the place where the acts underlying the controversy occurred." VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990). Plaintiff bears the burden of establishing that venue is proper. Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 1969). In ruling on a motion to dismiss for lack of venue, the court should take all allegations in the complaint as true (unless contradicted by affidavit), draw all reasonable inferences in favor of plaintiff, and may examine facts outside the complaint. See ISA Chicago Wholesale, Inc. v. Swisher Intern., Inc., 2009 WL 3152785, at *3 (N.D. Ill. Sept. 25, 2009) (citations omitted).

Defendants contend that venue is not proper in the Northern District of Illinois, and that this case should be transferred to the Eastern District of California. In a federal question case, such as a controversy under ยง 1983, ...


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