Johnson v. Christopher , 233 F. App'x 852 ( 2007 )


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  •                                                                        F I L E D
    United States Court of Appeals
    Tenth Circuit
    May 17, 2007
    UNITED STATES CO URT O F APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                         Clerk of Court
    R AY M ON D H ER SC HEL JO H NSON,
    SR.,
    Plaintiff-Appellant,
    No. 07-7011
    v.
    (D.C. No. CIV-06-482-RAW )
    (E.D. Okla.)
    DR. SIM ENA CHRISTOPHER; DR.
    FLOYD; and DR . JAY KH AR L,
    Defendants-Appellees.
    OR DER AND JUDGM ENT *
    Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
    Raymond Johnson, an inmate in the custody of the Oklahoma D epartment
    of Corrections, filed a complaint pursuant to 
    42 U.S.C. § 1983
     in the United
    States D istrict Court for the Eastern District of Oklahoma. W hile difficult to
    discern the nature of his claim, as best w e can tell M r. Johnson doesn’t agree with
    Oklahoma prison medical staff who continue to deem him incompetent to stand
    *
    After examining appellant’s brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G ). The case is therefore ordered 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    order and judgment is not binding precedent except under the doctrines of law of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.
    trial. The relief he seeks, however, is abundantly clear, immediate release and ten
    million dollars in damages.
    The district court dismissed the case sua sponte for improper venue
    pursuant to 
    28 U.S.C. §§ 1406
    (a) & 1391(b). The district court did so after
    observing that M r. Johnson is incarcerated at the Oklahoma Forensic Center in
    Vinita, Oklahoma, a facility located in the Northern District of Oklahoma; all of
    the defendants likewise are citizens within the Northern District; and all of the
    events alleged occurred there. Simply put, the district court found no basis
    whatsoever for venue in the Eastern District. W hile dismissing M r. Johnson’s
    suit, the district court emphasized that its dismissal was without prejudice 1 and
    identified for M r. Johnson the Northern District as the appropriate jurisdiction to
    hear his complaints.
    1
    After the district court filed its order dismissing the complaint, it entered
    judgment against M r. Johnson, stating, “[c]ase dismissed because proper venue
    does not lie in the Eastern District of Oklahoma.” D ocket Entry 10 (Judgment in
    a Civil Case, Feb. 2, 2007) (emphasis added). A court’s dismissal of the entire
    action, even if termed a dismissal without prejudice, is a “final decision” for the
    purposes of 
    28 U.S.C. § 1291
    , and thus we have jurisdiction to hear this appeal.
    See Moya v. Schollenbarger, 
    465 F.3d 444
    , 448-49 (10th Cir. 2006) (“[I]n this
    circuit, ‘whether an order of dismissal is appealable’ generally depends on
    ‘whether the district court dismissed the complaint or the action. A dismissal of
    the complaint is ordinarily a non-final, nonappealable order (since amendment
    would generally be available), while a dismissal of the entire action is ordinarily
    final.’” (quoting M obley v. M cCormick, 
    40 F.3d 337
    , 339 (10th Cir. 1994))).
    -2-
    M r. Johnson appeals to us arguing, in essence, that the district court erred
    by failing to render a decision on the merits of his case. 2 Construing his pro se
    filings liberally, as we are constrained to do, see Andrews v. Heaton, __ F.3d __,
    2007 W L 1180423, at *3 (10th Cir. Apr. 23, 2007), we understand M r. Johnson as
    challenging the district court’s dismissal of his suit in lieu of transferring it to the
    Northern District of Oklahoma.
    In assessing such a challenge, we are obliged to begin by acknowledging a
    district court’s authority under 28 U .S.C. § 1915(e) to dismiss sua sponte cases
    not merely on their merits but also based upon improper venue. Trujillo v.
    W illiam s, 
    465 F.3d 1210
    , 1217 (10th Cir. 2006). This procedure is appropriate
    where “the defense is obvious from the facts of the complaint and no further
    factual record is required to be developed,” and “only if it is clear that the
    plaintiff can allege no set of facts to support . . . venue.” 
    Id.
     (internal quotations,
    citation, and alteration omitted). 3 W e have no doubt that these conditions and
    2
    M r. Johnson also filed a separate document styled “Writ of M ondane-
    Prohabitum” in this court. The Clerk dismissed what she took to be an
    application for a writ of mandamus for failure to prosecute but indicated that this
    panel would consider the merits of M r. Johnson’s application as part of this
    appeal. See M ay 2, 2007 Order, No. 07-7019. Accordingly, we treat the
    materials in that separate case file as if they were filed in the matter now before
    us.
    3
    Even though improper venue is an affirmative defense that may be
    waived, we have looked to the purposes of Section 1915(e) and determined that it
    is nevertheless proper for a district court to dismiss a case w here the “‘claim’s
    factual backdrop clearly beckons the defense.’” Trujillo, 
    465 F.3d at 1217
    (continued...)
    -3-
    rationales are met here. Venue is clearly inappropriate in the Eastern District
    because no defendant resides in the Eastern District and no events were alleged to
    have taken place in the Eastern District. See 
    28 U.S.C. § 1391
    (b).
    To be sure, the district court had the discretion not only to dismiss but also
    to transfer M r. Johnson’s case. See Doering ex rel. Barrett v. Copper M tn., Inc.,
    
    259 F.3d 1202
    , 1209 n.3 (10th Cir. 2001) (“The district court had the authority
    either to dismiss or transfer the case for improper venue or lack of personal
    jurisdiction.”). But Section 1406(a) indicates that the district court “shall
    dismiss” a case filed in an inappropriate venue unless it finds the interests of
    justice would be served by transfer. The district court evidently did not find that
    requisite met, and we review its conclusion on this score for abuse of discretion.
    Cf. Ballesteros v. Ashcroft, 
    452 F.3d 1153
    , 1160 (10th Cir. 2006) (applying
    separate venue regulation) (“In civil cases, the question of whether a litigant has
    brought an action in the proper court is a question of law, while the question of
    whether to dismiss or transfer an action filed in an improper venue is within the
    district court’s sound discretion and reviewed for abuse of discretion only.”
    (internal quotation omitted)).
    In the facts and circumstances of this case, we discern no such abuse given
    that the suit was filed in such an obviously improper venue. Additionally, M r.
    3
    (...continued)
    (quoting Fratus v. DeLand, 
    49 F.3d 673
    , 676 (10th Cir. 1995)); see also id. at
    1216.
    -4-
    Johnson offers us no reason to believe that an injustice will result from the
    dismissal as opposed to a transfer by, say, operation of a statute of limitations
    upon his claims. See generally Goldlawr, Inc. v. Heiman, 
    369 U.S. 463
    , 466
    (1962) (pointing to loss of “a substantial part of [plaintiff’s] cause of action under
    the statute of limitations” as “a typical example of the problem [Congress] sought
    to [avoid]” in enacting § 1406). Indeed, M r. Johnson, albeit acting pro se, offers
    us no reason whatsoever that the district court abused its discretion in dismissing
    the case, and our own review of the record reveals none.
    For all these reasons, we affirm the district court’s dismissal of this case.
    W e also grant M r. Johnson’s motion to proceed on appeal without prepayment of
    filing fees, and we remind him that he is obligated to continue making partial
    payments until the entire fee has been paid. So ordered.
    ENTERED FOR THE COURT
    Neil M . Gorsuch
    Circuit Judge
    -5-