Arnold v. Maynard

942 F.2d 761, 1991 WL 155945

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 19, 1991
• Docket: No. 90-6315
• Status: Published

Opinions

SEYMOUR, Circuit Judge.

Darin Gray Arnold, a pro se prisoner, filed this action under 42 U.S.C. § 1983 (1988) in the United States District Court for the Western District of Oklahoma seeking relief for alleged constitutional deprivations arising from disciplinary proceedings against him. The district court dismissed for lack of venue. We reverse.

Arnold named eight defendants, six of whom appear to be officials at the Jess Dunn Correctional Center at Taft, Oklahoma, where Arnold is an inmate, and two of whom are officials with the Oklahoma Department of Corrections in Oklahoma City, Oklahoma. Taft is located in the Eastern District of Oklahoma, while Oklahoma City is in the Western District, where this suit was filed. The district court apparently raised the question of venue sua sponte.¹ The court concluded that under 28 U.S.C. § 1391(b), venue was properly in the Eastern District rather than the Western District, and dismissed the action without prejudice.

Arnold filed this action on September 14, 1990, and the court dismissed it on September 19, 1990. The version of section 1391(b) in effect on these dates stated: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.” 28 U.S.C. § 1391(b)(1988).² Although venue would not lie in the Western District under this provision, Arnold contends that venue in that district is nonetheless proper under section 1392(a), winch provides that “[a]ny civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.” 28 U.S.C. § 1392(a)(1988). We agree.

Tort actions are clearly transitory rather than local for purposes of venue under section 1392(a). See 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3822, at 211 (2d ed. 1986). The Supreme Court analyzed the nature of section 1983 actions with respect to selecting the proper statute of limitations period in Wilson v. Garcia, 471 U.S. 261, 276-79, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985). The Court there recited compelling reasons for characterizing a section 1983 claim as one in the nature of a tort action for the recovery of damages for personal injuries. Those reasons are equally applicable here. Indeed, every circuit which has considered the issue has concluded that actions brought under section 1983 are “not of a local nature” for purposes of ascertaining venue under section 1392(a). See Al-Muhaymin v. Jones, 895 F.2d 1147, 1148 (6th Cir.1990) (per curiam); Bolding v. Holshouser, 575 F.2d 461, 466 (4th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978); Sinwell v. Shapp, 536 F.2d 15, 17-18 (3d Cir.1976).

While conceding that matters of venue in federal court are controlled entirely by federal law, the dissent would nonetheless turn to state law to interpret the federal venue statute for this federal claim. The propriety of this approach is dubious even as a general rule. See, generally, Raphael J. Musicus, Inc. v. Safeway Stores, Inc., 743 F.2d 503, 506 (7th Cir.1984); 15 Federal Practice & Procedure § 3822, at 207-09. However, resolving venue on the basis of state law is particularly inappropriate in a civil rights case. Our court has stated that state legislative concerns embodied in state law restrictions on state suits against state and local officials are not applicable to federal civil rights claims. See, e.g., Childers v. Independent School Dist. No. 1, 676 F.2d 1338, 1342-43 (10th Cir.1982). Our holding in this regard was approved by the Supreme Court, see Burnett v. Grattan, 468 U.S. 42, 46 n. 9, 104 S.Ct. 2924, 2927 n. 9, 82 L.Ed.2d 36 (1984), when it considered the applicability of state short statutes of limitations to federal civil rights suits. The Court emphasized that the state’s policy of providing a short limitations period for suits against its public officers reflected

“a judgment that factors such as minimizing the diversion of state officials’ attention from their duties outweigh the interest in providing employees ready access to a forum to resolve valid claims. That policy is manifestly inconsistent with the central objective of the Reconstruction-Era civil rights statutes, which is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief.”

Id. at 55, 104 S.Ct. at 2932. (emphasis added). The Court noted that “ ‘[i]t would be anomalous for a federal court to apply a state policy restricting remedies against public officials to a federal statute that is designed to augment remedies against those officials, especially a federal statute that affords remedies for the protection of constitutional rights.’ ” Id. at 55 n. 18, 104 S.Ct. at 2932 n. 18 (quoting Pauk v. Board of Trustees of City Univ. of New York, 654 F.2d 856, 862 (2d Cir. 1981)); see also Wilson, 471 U.S. at 269, 105 S.Ct. at 1943 (“Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action.”).

Contrary to the dissent’s assertion, deferring to state law on the issue of venue in this case would limit the relief otherwise available to this civil rights plaintiff. As the quotation from the Oklahoma Supreme Court relied on by the dissent makes clear, state law with respect to venue for state claims against public officials promotes the interests of the defendants at the expense of the plaintiffs by restricting the forums available. This narrowing of relief to further the interests of defendant state officials is as antithetical to the broad remedial purpose of section 1983 in this case as it was in the cases rejecting state law for purposes of limitations periods. Indeed, the Court in Wilson specifically refused to characterize section 1983 actions as analogous “to state remedies for wrongs committed by public officials,” observing that “[i]t was the very ineffectiveness of state remedies that led Congress to enact the Civil Rights Acts in the first place.” 471 U.S. at 279, 105 S.Ct. at 1948.

Accordingly, we conclude that this section 1983 action is transitory within the meaning of section 1392(a), and that venue was therefore properly in the Western District of Oklahoma under that provision. The judgment is reversed and the case remanded for further proceedings.

1 . We note that 28 U.S.C. § 1406(b)(1988) provides: "Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” Venue is thus a personal privilege of a defendant which may be waived by the failure to make timely objection. There is authority for the view that “[i]t is not proper for the court to dismiss an action on its own motion for improper venue if there has been no objection from the party for whose benefit the privilege exists.” 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3826, at 257 (2d ed. 1986).

2 . Section 1391(b) was amended by the Judicial Improvements Act of 1990, Pub.L. No. 101-650, § 311, 104 Stat. 5114 (1990). The amended version provides that a civil action not founded solely on diversity may be brought only in:

"(1) a judicial district where any defendant resides, if all defendants reside in the same State, (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.”

28 U.S.C.A. § 1391(b) (West Supp.1991). The italicized portion of the amended statute, if applicable to this case, clearly provides for venue in the Western District, as that is where at least one defendant resides.

Because the Judicial Improvements Act contains no effective date provision specifically applicable to the 1990 amendments to section 1391(b), we assume the new version went into operation on the effective date of the Act, which was December 1, 1990. See id., D. Siegel, Commentary on 1990 Revision of Subdivisions (a), (b), and (c). Application of the amendments to cases such as this one, which were pending on the effective date, is likewise not addressed in the Act.

This court recently recognized two lines of Supreme Court authority "setting forth conflicting presumptions regarding the retroactive application of a newly enacted federal statute where congressional intent is unclear.” DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1388 (10th Cir.1990), cert. denied — U.S. -, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). Faced with irreconcilable Court positions on the issue, compare Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), we elected to follow Bowen’s holding that a statute is to be given only prospective effect unless a contrary legislative intent appears. DeVargas, 911 F.2d at 1390-93. In so doing, however, we pointed out that we were there concerned with a statute affecting substantive rights and liabilities. See id. at 1392-93. The presumption has always been to the contrary with respect to statutes that address matters of procedure and jurisdiction. "[Wjhere a new statute deals only with procedure, prima facie it applies to all actions — to those which have accrued or are pending, and to future actions.” 2 N. Singer, Sutherland Statutory Construction § 41.04, at 349 (Sands 4th ed. 1986); see also Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409 (1916) (statute which simply changes tribunal that is to hear case applied to pending action); Ward v. Resolution Trust Corp. (In re Resolution Trust Corp.), 888 F.2d 57, 58 (8th Cir.1989); Agfa-Gevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1524 (7th Cir.1989); Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir.1985) (per curiam).

Given our conclusion that venue in this case is proper in the Western District under section 1392(a), we need not address whether, under our holding in DeVargas, the amended version of section 1391 would apply to a case pending on appeal on its effective date.