Bivens v. Six Unknown Named Agents of Fed. Bureau of

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Dennis J. Simpson; Paul D. * [UNPUBLISHED]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.

David Barber, a citizen of Illinois, appeals from the district

court's dismissal without prejudice of his civil rights and tort action

because of improper venue. We reverse and remand for transfer of Barber's

Bivens claims to the Central District of Illinois, and for a determination 1

of whether the court has subject matter jurisdiction over Barber's Federal

Torts Claims Act ("FTCA") claims.

Barber brought this action against Dennis J. Simpson, United States

Postal Inspector, and Paul D. Kothcer and Phyllis J. Nelson, United States

Probation Officers, in their individual and official
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capacities. Barber alleged that he was arrested in June 1993, based on a

false and fraudulent report written by defendants Kothcer and Nelson, and

on a letter written by defendant Simpson regarding Barber's possible

possession of stolen mail. These documents were forwarded to the Regional

Parole Commission in Kansas City, Missouri, resulting in an arrest warrant

being issued for Barber. Barber alleged that he was held until August 25,

1995. Barber claimed defendants' conduct violated his constitutional

rights and Missouri tort law, and alleged jurisdiction 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.

Whether the Western District of Missouri is a proper venue for

Barber's Bivens claims is determined by reference to 28 U.S.C. § 1391(b),

which states in relevant part that "[a] civil action wherein jurisdiction

is not founded solely on diversity of citizenship may . . . be brought only

in . . . (2) a judicial district in which a substantial 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 suits

against government officials in their official capacities, venue of Bivens

actions governed by § 1391(b)). Venue may be proper in any number of

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 the central purposes of statutory venue is to ensure that a

defendant is not `haled into a remote district having 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 of

Missouri, these events do not constitute a substantial part of the events

giving rise to his Bivens claims against these defendants. Both the

specific allegedly wrongful conduct of these
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defendants--the generation of false and fraudulent documents--and Barber's

arrest occurred elsewhere. Cf. id. at 985 (Lanham Act case; venue not

proper in district where trailers involved were manufactured and dealership

agreement was executed; conduct that allegedly violated Lanham Act occurred

elsewhere).

As Barber would probably now be precluded from refiling his Bivens

claims by the relevant statute of limitations, it was an abuse of

discretion for the district court to dismiss these claims without prejudice

rather than transfer them to the Central District of Illinois. Cf. Lowery

v. Estelle, 533 F.2d. 265, 267 (5th Cir. 1976) (per curiam) (affirming

district court's decision to dismiss rather than transfer because plaintiff

did not face a statute 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 personal

injury actions where claim arises); Crowder v. True, 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 official

capacities, defendants argued below that these claims are properly brought

only under the FTCA, that the United States should be substituted as

defendant, and that the district court lacked subject matter jurisdiction

because Barber had not exhausted his administrative remedies. See 28

U.S.C. § 2679(a) and (d); Price v. United States, 81 F.3d 520, 521 (5th

Cir. 1996) (FTCA exhaustion 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 States

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 the

United States should be substituted as the named defendant on those claims

against defendants in their
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official capacities, and whether Barber exhausted his administrative

remedies under section 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 instead the complainant will have to refile). Only if the district

court determines jurisdiction exists should it consider whether venue over

these claims is proper under 28 U.S.C. § 1402(b).

Accordingly, we remand to the district court for further proceedings

consistent with this opinion.

BEAM, Circuit Judge, dissenting.

There is clearly no subject matter jurisdiction for either claim

asserted by Mr. Barber. I would dismiss.

A true copy.

Attest:

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