Ellingburg v. Connett
| Decision Date | 20 March 1972 |
| Docket Number | No. 71-2729 Summary Calendar.,71-2729 Summary Calendar. |
| Citation | 457 F.2d 240 |
| Parties | James G. ELLINGBURG, Petitioner-Appellant, v. L. M. CONNETT, Warden, Federal Correctional Institution Records Office Officials, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James G. Ellingburg, pro se.
Roby Hadden, U. S. Atty., Tyler, Tex., for respondents-appellees.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
James G. Ellingburg, petitioner-appellant, is imprisoned in the federal penitentiary at Texarkana, Texas, in the Eastern District of Texas. He has filed several civil actions and petitions for mandamus in the Northern District of Texas, alleging that he cannot get a fair hearing in the Eastern District of Texas. The civil action now before this Court asks for relief from various actions of prison officials including: 1) refusal to remove state detainers; 2) opening of Ellingburg's mail; 3) denial of minimum custody, because of legal assistance furnished by Ellingburg to other prisoners; 4) spying on prisoners and their visitors; and 5) serving unequal portions of food. The district court treated the complaint as a petition for habeas corpus relief and dismissed the case for lack of "jurisdiction", citing 28 U.S.C. § 2241(a).1
We hold that the district court erred in its characterization of the complaint and dismissal of the case. The complaint stated a civil action for damages and injunctive relief against officers and employees of an agency of the United States. 28 U.S.C. § 1391(e) provides:
A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.
Since none of the defendants resides in the Northern District of Texas, venue in the Northern District may not be predicated on § 1391(e) (1). The cause of action arose in the Eastern District of Texas; venue in the Northern District, therefore, may not be predicated on § 1391(e) (2). § 1391(e) (3) may not be used to establish venue in the Northern District of Texas, because no real property is involved in the case. Section 1391(e) (4), however, may be a basis for venue in the Northern District. For purposes of the venue statute, "One does not change his residence to the prison by virtue of being incarcerated there". Cohen v. United States, 9 Cir. 1962, 297 F.2d 760, 774. "It is well established that the words `inhabitant' and `resident in', as used in Section 51 of the Judicial Code mean neither more nor less than legal domicile . . .." King v. Wall & Beaver Street Corp., 1945, 79 U.S.App.D.C. 234, 145 F.2d 377, 379. See also Neuberger v. United States, 2 Cir. 1926, 13 F.2d 541; United States v. Stabler, 3 Cir. 1948, 169 F.2d 995; Smith v. Murchison, S.D.N.Y.1970, 310 F.Supp. 1079; 1962 U.S.Code Cong. & Admin.News pp. 2784-90.
This record is silent as to Ellingburg's domicile/residence. Accordingly, we remand the case to the district court for it to determine Ellingburg's "residence". If his "residence" is located in the Northern District of Texas, venue is proper in that district under § 1391(e) (4); if venue is proper, the district court should proceed to hear the case. If venue is not proper, the district court should consider a change of venue under 28 U.S.C. § 1406.
Reversed and remanded.
Except for a purported claim for damages this in reality is a suit dealing solely with the internal administration of a federal prison.
It seems clear to me that Congress enacted 28 U.S.C., § 1391(e) (4) for the purpose of allowing a person to seek redress in a conveniently located United State Court without having to go, for instance, all the way to Washington to litigate his rights at that distant point.
The plaintiff complains of procedures followed by prison authorities at Texarkana. He is in the Eastern District of Texas. The prison officials are there. The clear purpose of the statute is served by giving him a trial in the Eastern District of Texas. The convenience of both the prisoner and...
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Kahane v. Carlson
...changed his domicile from the Eastern District of New York. 1 J. Moore, Federal Practice P0.142(5.1--1, 5.1--2, 7); Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972); Ott v. United States Board of Parole, 324 F.Supp. 1034, 1037 After his sentencing, Kahane moved to Israel with his fa......
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Holmes v. U.S. Bd. of Parole
...venue existed in the district court under section 1391(e)(4). Accord, Kahane v. Carlson, 527 F.2d 492 (2d Cir. 1975); Ellingsburg v. Connett, 457 F.2d 240 (5th Cir. 1972). The Government also urges that jurisdiction in the district court was lacking because mandamus is not an appropriate ve......
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Starnes v. McGuire, s. 73-1034
...place of confinement, see Young v. Board of Parole, supra ; Phillips v. United States Board of Parole, supra ; but see Ellingburg v. Connett, 457 F.2d 240 (5th Cir. 1972); Ott v. United States Board of Parole, 324 F.Supp. 1034 (W.D.Mo.1971), but we also note that Judge Templar of the Distri......
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...actions against officers in their individual capacities. 14 See Briggs v. Goodwin, 569 F.2d 1 (D.C.Cir. 1977); Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972); Driver v. Helms, supra; United States v. McAninch, supra; Lowenstein v. Rooney, supra; Patmore v. Carlson, 392 F.Supp. 737......