### Biven s v. Six Unknown Named Agents of Fed. Bureau o f 1 

### Narcotics , 403 U.S. 388 (1971). ___________ No. 95-4210

___________ David Barber, * * Appellant, * Appeal from the United States * District Court for the v. * Western District of Missouri. * Dennis J. Simpson; Paul D. * [UNPUBLISHED] Kothcer; Phyllis J. Nelson, * * Appellees. *

___________ Submitted: August 2, 1996 Filed: August 23, 1996

___________ Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.

DavidBarber, a citizen of Illinois, appeals from the distric t
cou rt's dismissal without prejudice of his civil rights and tort actio n because of improper venue. We reverse and remand for transfer of Barber's Bivens claims to the Central District of Illinois, and for a d etermination

1 of whether the court has subject matter jurisdic tion over Barber's Federal Torts Claims Act ("FTCA") claims.

Barber br ought this action against Dennis J. Simpson, United States Postal Inspector, and Paul D. Kothcer and Phylli s J. Nelson, United States Probation Officers, in their individual and official

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capacities. Barber a lleged that he was arrested in June 1993, based on a false and fraudulent report written by defendants Kothcer and Nelson, and
on a l etter written by defendant Simpson regarding Barber's possibl e possession of stolen mail. These documents were forwarded to the Regional Parole Commission in Kansas City, Missouri, resu lting in an arrest warrant being issued for Barber. Barber alleged that he was held until August 25, 1995. Barber claimed defendants' conduct violated his constitutiona l rights and Missouri tort law, and alleged jurisd iction was proper under 28 U.S.C. §§ 1331, 1343, and venue was proper under 28 U.S.C. § 1391(e)(2). He sought monetary damages.

Whethe r the Western District of Missouri is a proper venue fo r Barber's Bivens claim s is determined by reference to 28 U.S.C. § 1391(b), which states in relev ant part that "[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may . . . be brought onl y in . . . (2) a judicial district in which a subs tantial part of the events
or omissions giving rise to the claim occurred . . . ." Cf. Stafford v. Briggs , 444 U.S. 527, 544 (1980) (Section 1391(e) applies only to suit s against government officials in their official c apacities, venue of Bivens actions g overned by § 1391(b)). Venue may be proper in any number o f districts so long as a substantial part of the events giving rise to the action occurred there
. Woodke v. Dahm , 70 F.3d 983, 985 (8th Cir. 1995). "One of t he central purposes of statutory venue is to ensure that a defendant is not `haled into a remote district h aving no real relationship to the dispute.'" Id. (quoted case omitted).
Although Barber alleges that fraudulent documents were sent to, and the decision to have him arrested was made in the Western District o f Missouri, these event s do not constitute a substantial part of the events givi ng rise to his Bivens claims against these defendants. Both th e specific allegedly wrongful conduct of these

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defendants--the generation of false and fraudule nt documents--and Barber's arrest occurred elsewhere. Cf. id. at 985 (Lanham Act case; venue no t proper in district where trailers involved were manufactured and dealershi p agreement was executed; conduct that allegedly violated Lanham Act occurre d elsewhere).

As Barbe r would probably now be precluded from refiling his Biven s claims b y the relevant statute of limitations, it was an abuse o f discretion for the district court to dismiss these claims without prejudic e rather than transfer them to the Central Distric t of Illinois. Cf. Lowery
v. Es telle , 533 F.2d. 265, 267 (5th Cir. 1976) (per curiam) (affirmin g district court's decision to dismiss rather than transfer because plaintif f did not face a statut e of limitations problem); Sanchez v. United States , 49 F.3d 1329, 1330 (8th Cir. 1995) (per curiam) ( Bivens actions, like 42 U.S.C. § 1983, governed by state's statute of limitations for persona l injury actions where claim arises); Crowder v. T rue , 74 F.3d 812, 814 (7th Cir. 1995) (per curiam) (Illinois two-year statute of limitations applied to Bivens action arising in Illinois).

As to Barber's claims against defendants in their officia l capacities, defendants argued below that these c laims are properly brought onlyunder the FTCA, that the United States should be substituted a s defendant, and that t he district court lacked subject matter jurisdiction because Barber had not exhausted his administrative remedies. See 2 8 U.S.C. § 2679(a) and (d); Price v. United States , 81 F.3d 520, 521 (5t h Cir. 1996) (FTCA exha ustion requirement is jurisdictional). The district court should have addressed the existence of subject matter jurisdiction
over Barber's FTCA claims before ruling on venue. Cf. United State s ex rel. Rudick v. Laird , 412 F.2d 16, 20 (2d Cir .), cert. denied , 396 U.S. 918 (1969). On remand, the district court should determine whether th e United States should be substituted as the nameddefendant on those claims against defendants in their

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of ficial capacities, and whether Barber exhausted his administrativ e remedies under sectio n 2675(a) of the FTCA within the six months prior to filing suit. See 28 U.S.C. 2401(b); McNeil v. United States , 508 U.S. 106

- 112 (1993) (holding that a complaint filed before exhaustion of remedies will not be viewed as properly filed as of the date of final agency action , but inste ad the complainant will have to refile). Only if the distric t court determines jurisdiction exists should it c onsider whether venue over these claims is proper under 28 U.S.C. § 1402(b).
Accordingly, we remand to the distri ct court for further proceedings consistent with this opinion.
BEAM, Circuit Judge, dissenting.

There is clearly no subject matter jurisdiction for either clai m asserted by Mr. Barber. I would dismiss.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.