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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0393P (6th Cir.)

File Name: 03a0393p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GUST MARION JANIS,

Plaintiff-Appellant,

v.

JOHN ASHCROFT, Attorney

General; AL HERRERA,

Warden, U.S. Penitentiary,

Lompoc, CA; KATHLEEN

HAWK, Director, Bureau of

Prisons; DAVID WOODY;

VICTOR A. FLORES; FEDERAL

BUREAU OF PRISONS,

Defendants-Appellees.

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No. 02-6506

Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 02-00088—Henry R. Wilhoit, Jr., District Judge.

Submitted: September 18, 2003

Decided and Filed: November 5, 2003 

2 Janis v. Ashcroft, et al. No. 02-6506

*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

Before: MARTIN and SUTTON, Circuit Judges; MILLS,

District Judge.*

_________________

COUNSEL

ON BRIEF: Gust Marion Janis, Lompoc, California, pro se.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Gust Marion

Janis, a federal prisoner proceeding pro se, appeals a district

court order dismissing his civil complaint filed pursuant to the

settlement agreement in Washington v. Reno, Lexington Civil

Action Nos. 93-217 and 93-290 (E.D. Ky.), which concerned

the propriety of prison telephone system policies. The

settlement agreement afforded inmates an opportunity to

enforce a specific portion of the agreement within the Eastern

District of Kentucky. This case has been referred to a panel

of the court pursuant to Sixth Circuit Rule 34(j)(1). Upon

examination, this panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P. 34(a).

On April 2, 2001, the defendants implemented new

telephone policies which limited all Federal Bureau of Prison

inmates to “300 minutes per calendar month for collect-call

and/or dial direct telephone calls.” On April 29, 2002, Janis

filed a complaint in the Eastern District of Kentucky against

United States Attorney General John Ashcroft; Warden Al

Herrera, United States Penitentiary - Lompoc, California;

Director Kathleen M. Hawk Sawyer, Federal Bureau of

Prisons; Chief David Woody, Federal Bureau of Prisons Trust
No. 02-6506 Janis v. Ashcroft, et al. 3

Fund Systems; Inmate Trust Fund Supervisor Victor Flores,

United States Penitentiary - Lompoc, California; and the

Federal Bureau of Prisons. The complaint alleged that the

defendants implemented the new telephone restrictions in

retaliation against the inmates for pursuing the Reno

litigation. According to Janis, the defendants acted in bad

faith and committed a fraud upon the court when they settled

the Reno lawsuit, because at the time of the settlement they

intended to punish the inmates in the future for having

brought the lawsuit. Janis also challenged numerous

conditions of his confinement at the United States

Penitentiary in Lompoc, California, where he is incarcerated.

Janis sought enforcement of the settlement agreement

approved in Reno, as well as injunctive, declaratory, and

monetary relief.

The district court concluded that it lacked subject matter

jurisdiction and dismissed the complaint sua sponte pursuant

to 28 U.S.C. § 1915A. The district court subsequently denied

Janis’s motion for reconsideration. Janis filed a timely notice

of appeal. Janis also filed a motion for a temporary

restraining order with this Court. 

We review de novo a district court’s dismissal of a

complaint for lack of subject matter jurisdiction. See Friends

of Crystal River v. United States Envtl. Prot. Agency, 35 F.3d

1073, 1077-78 (6th Cir. 1994). 

Upon review, we conclude that the district court improperly

dismissed Janis’s complaint for lack of subject matter

jurisdiction. Certainly, the district court was correct in

concluding that Janis had not sought enforcement of any

provision of the settlement agreement and thus, jurisdiction

could not be established “under the alleged guise of being

vaguely linked to [the] enforcement of the [] settlement

agreement.” Indeed, Janis’s complaint did not identify any

specific provision of the settlement agreement that he desired

the court to enforce. 

4 Janis v. Ashcroft, et al. No. 02-6506

However, inasmuch as the district court dismissed Janis’s

complaint for lack of subject matter jurisdiction, but cited

venue language in support of its decision, it appears that the

district court confused these separate concepts. Janis’s

complaint alleged bad faith on the part of and retaliation by

the defendants against him and other inmates because they

pursued the Reno litigation. Properly understood, Janis’s

complaint essentially asserted constitutional violations rather

than violations of the settlement agreement. We conclude

that these allegations were sufficient to invoke federal

question jurisdiction pursuant to 28 U.S.C. § 1331. Although

we note that Janis asserted his claims in the wrong venue as

he filed his complaint in a judicial district where neither he

nor any defendant resides nor where a substantial part of the

alleged events occurred, see 28 U.S.C. § 1391(e), we question

the propriety of the district court’s sua sponte dismissal for

what was essentially a lack of proper venue. See Rauch v. Day

& Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir. 1978). 

While Federal Rule of Civil Procedure 12(h)(3) permits a

district court to dismiss a complaint sua sponte for lack

subject matter jurisdiction, it does not accord similar authority

to dismiss a case for lack of venue. See id.; but see 28 U.S.C.

§ 1404(a) (allowing district courts to transfer a case to a

district court where venue is proper). 

Accordingly, the judgment of the district court is reversed

and the case is remanded for further proceedings. Janis’s

motion for a temporary restraining order is denied as it was

filed in the first instance with the wrong court.