Moss v. Chrones , 241 F. App'x 461 ( 2007 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    May 23, 2007
    TENTH CIRCUIT                       Elisabeth A. Shumaker
    Clerk of Court
    SPENCER M OSS,
    Plaintiff-Appellant,                       No. 06-4209
    v.                                            District of Utah
    LEA ANN CHRONES, W arden;                        (D.C. No. 2:06-CV-376-TC)
    JEANNE W OODFORD, Director
    CDC; B. LACKEY, Officer,
    Defendants-Appellees.
    OR D ER AND JUDGM ENT *
    Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
    Spencer M oss, a California state prisoner proceeding pro se and in form a
    pauperis, appeals from the district court’s dismissal of his civil rights action
    brought under 
    42 U.S.C. § 1983
     for improper venue. M r. M oss claims that prison
    officials have seized and destroyed his legal papers and have blocked his access
    to the local district court. He also brings a series of motions asking this court to
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
    therefore submitted without oral argument. This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    remedy his lack of access to the prison law library and to indigent prisoner mail
    service. The district court dismissed his action because it was “unable to find any
    reference whatsoever to Utah, let alone any allegation that Utah is home to any
    party, events, omissions or property possibly involved in this case.” R. Vol. I,
    Doc. 12, at 1. On appeal, M r. M oss argues that venue is proper because he is a
    resident of Utah and because prison officials violated his rights by seizing his
    property and mailing it to the Frank E. M oss Courthouse in Salt Lake City, Utah.
    “[A] district court may . . . dismiss under § 1915 . . . for improper venue”
    regardless of whether the defendants raise the issue as an affirmative defense.
    Trujillo v. William s, 
    465 F.3d 1210
    , 1217 (10th Cir. 2006). Since all of the
    defendants reside in California, venue is proper in Utah only if it is where “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.” 
    28 U.S.C. § 1391
    (b)(2). The events giving rise to M r. M oss’s civil rights claim— the
    alleged wrongful seizures of his property and interference w ith his right of access
    to the courts— all occurred in California. Consequently, the District of Utah is
    not the proper venue to bring this action.
    In his appellate brief, M r. M oss argues for the first time that his property
    was sent to Utah. He did not raise this argument before the district court, and it is
    therefore waived.
    -2-
    Accordingly, the judgment of the United States District Court for the
    District of U tah is AFFIRM ED.
    Entered for the Court,
    M ichael W . M cConnell
    Circuit Judge
    -3-
    

Document Info

Docket Number: 06-4209

Citation Numbers: 241 F. App'x 461

Judges: Briscoe, McCONNELL, McKAY

Filed Date: 5/23/2007

Precedential Status: Non-Precedential

Modified Date: 8/3/2023