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NICHOLS v. UNITED STATES BUR. OF PRISONS

August 23, 1995

TERRY LYNN NICHOLS, Plaintiff,
v.
UNITED STATES BUREAU OF PRISONS, UNITED STATES MARSHALS SERVICE, and JANET RENO, Attorney General for the United States, Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 This case was brought on August 21, 1995, as a Motion for Temporary Restraining Order. *fn1" A hearing was scheduled on that motion for Thursday, August 24, 1995. Also on August 21, 1995, defendants moved to transfer the case to the United States District Court for the Western District of Oklahoma. That motion was the subject of a hearing held this date. For the reasons expressed below, the defendants' motion to transfer is granted and this case shall be transferred to the United States District Court for the Western District of Oklahoma. *fn2"

 I. Background

 Plaintiff, Terry Lynn Nichols, a defendant indicted in the Oklahoma City bombing, is incarcerated at the Federal Correctional Institute at El Reno, Oklahoma. In his motion for a Temporary Restraining Order, Mr. Nichols seeks an order enjoining the defendants, the United States Bureau of Prisons, the United States Marshals Service, and Attorney General Janet Reno (hereinafter "defendants" or "the government"), from preventing a contact visit at El Reno with his wife, Marife Nichols. Mrs. Nichols has resident alien status in the United States but has voluntarily moved herself and her child to the Phillipines, where she is building a house.

 Mrs. Nichols is in the United States pursuant to an order recently issued at the request of Mr. Nichols by Chief Judge David Russell of the United States District Court for the Western District of Oklahoma. Under that order, court funds were authorized to transport Mrs. Nichols and her two-year old daughter from their home in the Philippines to Oklahoma City for the purpose of consulting with Terry Nichols' attorneys in the criminal proceeding in Oklahoma City. Chief Judge Russell also authorized seven nights' accommodation in a hotel for Mrs. Nichols and her daughter, which initially were scheduled to expire today. Mr. Nichols, through counsel, was able to arrange for an extension of that date, and Mrs. Nichols is now scheduled to remain in the United States until this Sunday. There is no legal prohibition against her remaining in the United States for as long as she wishes. Counsel for Mr. Nichols contend it is Mrs. Nichols' pregnancy (now six months in duration), her emotional state, and financial concerns that motivate her desire to return to the Philippines.

 Lawyers for Mr. Nichols recently requested a contact visit between Terry Nichols, Marife Nichols, their daughter, and Mr. Nichols' attorneys, during Mrs. Nichols' stay in the United States. Their request for a contact visit was refused by the warden of El Reno, but according to the declaration of one of Terry Nichols' attorneys, Kate Rubin, the warden was willing to allow a noncontact visit on the weekend. *fn3" Decl. of Kate Rubin at 7. However, Nichols' attorneys maintain that a contact visit, without a glass partition dividing Mr. and Mrs. Nichols, is necessary to enable the defense team to have an unrestrained conversation about certain matters important to Mr. Nichols' defense. Mr. Nichols' attorneys contend that Mrs. Nichols is not planning to return to the United States until the time of trial, many months distant, due to her advancing pregnancy. As such, Mr. Nichols, through counsel, asserts that this is his last opportunity to meet with his wife prior to trial.

 Mr. Nichols contends that his constitutional right to effective assistance of counsel is being violated and irreparably harmed by the warden's refusal to allow this contact visit with his wife. Nichols further argues that the defendants' actions in refusing to allow him to see his pregnant wife and their two-year-old daughter is causing him "grave emotional distress."

 The foregoing background of the underlying motion for a temporary restraining order is detailed in order to provide the context for the instant motion to transfer the case to the United States District Court for the Western District of Oklahoma.

 II. Analysis

 Defendants have moved pursuant to 28 U.S.C. § 1404(a) to transfer this case to the Western District of Oklahoma. Section 1404(a) states:

 
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

 28 U.S.C. § 1404(a).

 Section 1404(a) places "discretion in the district court to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 101 L. Ed. 2d 22, 108 S. Ct. 2239 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964)). A motion to transfer pursuant to § 1404, therefore, requires a district court to "balance a number of case-specific factors." Id. The relevant factors typically considered in evaluating a motion to transfer include: (1) a plaintiff's privilege of choosing the forum; (2) convenience of the parties; (3) location of counsel; (4) convenience of witnesses, including expert witnesses, and, in this instance, possibly including the plaintiff prisoner; (5) the location of books and records; (6) the speed with which the underlying civil case may be resolved by the relevant courts; and (7) the interest of justice. 15 Charles A. Wright, et al., Federal Practice and Procedure §§ 3848-54 (2d ed. 1986); Starnes v. McGuire, 168 U.S. App. D.C. 4, 512 F.2d 918 (D.C. Cir. 1974).

 As a threshold matter the Court must determine whether the case could have been brought in the Western District of Oklahoma. In that "a substantial part of the events or omissions giving rise to the claim" occurred there, it appears that venue in ...


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