1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0393P (6th C ir.) File Name: 03a03 93p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
G UST M ARIO N J AN IS ,

Plaintiff- Appellant

,

v.

J OHN A SHCROFT , Attorney Genera l; A L H ERRERA , Wa rd en , U .S . P en it en ti ar y, Lompo c, CA; K

ATHLEEN H AWK , Director, Bureau of Prisons; D AVID W OODY ; V ICTOR A. F LORES ; F EDERAL B UREAU OF P RIS ONS , Defenda nts-Appe llees. X - - - -
> , - - - - - - - - - - - N 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. A shcroft, e t al. No. 02-6506

* The Hon orable R ichard M ills, United States D i strict Judge for the Central Distri ct of Ill inois, s itti ng by designation. Befor e: MARTI

N and SUTT ON, Circu

it Judges; M IL

LS, District Judge. *

_________________ COUNSEL

ON BRIE F: Gust

Marion Janis, Lompoc, California, pro se.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. Gu st 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 , Lexin gton Civil ActionNos. 93-217 and 93-290 (E.D. Ky .), which concerned the proprie

ty o f prison te lephone syst em policie s. The settlement

agree ment aff orded inmates a

n o pportunit

y to enforce a specific portion of the agreement within the Eastern District of Kentu cky . This cas e has bee

n refer red to a panel of the court pursuant to Sixth Circuit Rule 34(j)(1 ) . Upon examination, t his panel unanimously ag rees that oral argument is not needed. See Fed. R. App. P. 34(a).

OnApril 2, 2001, t h e defendants implemented new telephone policies which limited all Federal Bureau of Prison inma tes to “300 minutes per calendar month for collect-ca l l and/or dial direct telephone calls.”On April 2 9, 2002, Jan is filed a complaint in the Eastern District of Kentuck y a gainst United States Att

orney Genera l J ohn Ashcroft; Warden Al Herrera, United Sta

tes Pe n itentiary - L

ompoc, California; Director Kathleen M. Hawk S awyer , Federal Bureau of Prisons; Chief Da

vid Woody, Feder

al Bure au of Pris ons TrustNo. 02-6506 Janis v. A shcroft, e t al. 3

Fund Syst ems; I nmate Trust Fu

nd Supervisor Vict

or Flore s, United States Penitentiary - L

ompoc, California; and the FederalBureau of Prisons. The complaint alleged that the defendan ts implement

ed the ne w telepho

ne restr ictions in retaliation

against the inmates for pursuing the Reno litigation. According to Janis, the defen dants a cted in bad faith and committed a

fraud upon

the court when they

settled the Reno la wsuit, because at the time of the settlement they intended to punish the inmates in the future for having brought the lawsuit. Janis also challenged nu merou s conditions of his con finement at the United States Penitentiary

in Lompoc, California, where he is incarcerated. Janis sought e

nforce ment of the

settl eme nt agreement approved in Reno , as well as injunctive, declaratory , and monetary re lief.

The district c ourt conc luded tha t it l ac ked subject matter jurisdiction and dismissed the complaint sua sponte pursuant to 28 U.S.C. § 1915A. The district court subsequently de nied Janis’s motion for reconsideration. Janis filed a timely notice of appeal. Janis also f

iled a moti on for a t

e mp orary 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 Sta tes Envtl . Prot. Agency , 35 F.3d 1073, 1077-78 (6th Cir. 1994). Uponreview, we conc lude that the distri ct court

improper ly dismissed Ja nis’s complaint for lack of subject matter jurisdiction. Certainly, the district c ourt was c orrect in concluding that Janis had no t sought enforcement of any provision of the settlement agreement andthus, jurisdiction could not be established “under the alleged g uise of be ing vague ly linked to [the] enf

orce ment of the [] settlement agree ment.” Indeed, Janis’s complaint did not identify any specific provision of the settlement agreement that he desired the court to enforce. 4 Janis v. A shcroft, e t al. No. 02-6506

However, inasmuchas the district court dismissed Janis’s compl aint

for lac k of subje ct matter jurisdict ion, but ci

t e d
venue langua

ge in sup port of its decision , it

appears that

the districtcourt confused these se p arate concepts. Janis’s complaint alleged bad faith on the part of and r etaliation by the defendants against him and other inmates beca use they pursued the Reno li t igation. Properly understood, Janis’s complaint essentia lly asserted constitutional violations rather thanviolations of the s ettleme nt agreement. We conclude that these allegations were sufficient to invoke f eder al question jurisdiction pursuant to 28 U.S. C. § 1 331. A ltho ugh
we note that Janis asserted his claims in the wr o ng venue as he filed his c omplaint in

a judicial district where neither he
nor any defe ndant resides nor where a substantial part of the alleged events occurred, see 28 U.S.C. § 1391(e), we question the propriety of t

he district court’s sua sponte dismissal for what was essentially a la

ck 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 districtcourt to dismiss a comp laint sua sponte for lack subje ct matter jurisdiction, it does not accord similar author it y to dismiss a case for

lack of venue. See id. ; but see 28 U.S.C. § 1404(a) (allowing district courts to trans fer a c ase to a district court where venue is proper). Accordingly , the judgment of the district court is reversed and the case is remanded for fu rthe r proceedings. Janis’s moti on for

a temporary

restraining order is denied as it was filed in th e first in stance w ith the wr ong cou rt.