Harley v. Oliver

• Decision Date: 20 May 1975
• Docket Number: No. FS-75-22-C.,FS-75-22-C.
• Citation: 400 F. Supp. 105
• Parties: Bulah (Oliver) HARLEY, Individually, and Bobby Allen Oliver, a minor, by Bulah (Oliver) Harley, His Guardian, Custodial Parent and Next Friend, Plaintiffs, v. Thomas Edward OLIVER et al., Defendants.
• Court: U.S. District Court — Western District of Arkansas

400 F. Supp. 105

Bulah (Oliver) HARLEY, Individually, and Bobby Allen Oliver, a minor, by Bulah (Oliver) Harley, His Guardian, Custodial Parent and Next Friend, Plaintiffs, v. Thomas Edward OLIVER et al., Defendants.

No. FS-75-22-C.

United States District Court, W. D. Arkansas, Fort Smith Division.

May 20, 1975.

Billy E. Moore, Columbus, Ga., Kenneth S. Jacobs, of Jacobs & Leston, Villa Park, Ill., George H. Hartman, New York City, Willard Crane Smith, Jr., Ft. Smith, Ark., for plaintiffs.

J. H. Evans, of Warner & Smith, Robert T. Dawson, of Hardin, Jesson & Dawson, Ft. Smith, Ark., for defendants.

OPINION

JOHN E. MILLER, Senior District Judge, Sitting by Designation.

The motion of plaintiffs (1) for a change of venue, and (2) for a disqualification of the undersigned Judge was filed on May 15, 1975.

By the complaint filed February 19, 1975, the plaintiffs are seeking a declaratory judgment that certain actions of the defendants are unconstitutional and to enjoin the defendants from proceeding in their alleged unconstitutional acts under color of State law. A jury trial was demanded. The jurisdictional allegations are as follows:

"1. That this is a civil suit for a temporary Writ of Injunction, a permanent Writ of Injunction, and damages, authorized by U.S.C. Title 42, Section 1983, to restrain and prevent and to provide redress for the deprivation, under color of state law, of rights secured to the plaintiffs by the First, Fifth and Fourteenth Amendments to the Constitution of the United States.

"2. That the conduct of the defendants, which gives rise to this action, constitutes an undue interference with a federally protected activity as proscribed by U.S.C. Title 18, Section 245(b) (2) (B) (F). Said sections forbid willful injuries, intimidations, or interference with any person because of his religion and because he is enjoying any benefit, service, privilege, program, facility or activity provided by or administered by any state or subdivision thereof, or because he is enjoying the accommodations of an establishment that serves the public.

"3. That jurisdiction is conferred upon this Court by U.S.C. Title 28, Section 1343(3)(4) and U.S.C. Title 42, Section 1988 1983 which provides that this Court shall have jurisdiction in suits arising from a denial of civil rights.

"4. That in doing the acts complained of herein, the defendant, Van B. Taylor, acting as Judge of the Probate Court of Logan County, Arkansas, Southern District, was and is acting as an agent of a judicial program administered by the State of Arkansas, and he and the other individual defendants acted pursuant to a conspiracy with the state agent."

Upon the filing of the complaint the plaintiffs urged that it was absolutely necessary that an immediate hearing be held and that defendants be enjoined from further violation of the alleged rights of plaintiffs.

In accordance with the request, the court held a hearing, and on February 20, 1975, entered its order in which it referred to a great many of the allegations in the complaint and denied the prayer for an injunction. It suggested that the parties should appear before the Probate Court for consideration by that court as to any provision relative to the selection of a physician to perform a proposed operation upon the ward, Bobby Allen Oliver, before proceeding to a trial upon the merits; "that further hearing upon the complaint of plaintiffs should be postponed; and the hearing on the complaint be continued until the further orders of the court."

On the day of the hearing, the defendant, Thomas Edward Oliver, Jeptha A. Evans, and Judge Van B. Taylor, stated that they desired to file motions to dismiss the complaint, which motions were filed on March 24.

The plaintiffs gave notice of an appeal from the order of February 20, which is pending in the Circuit Court of Appeals for the Eighth Circuit, where a motion of defendants for dismissal on the ground that the order appealed from is not a final judgment is pending.

In a consideration of the motion of plaintiffs now before the court, the court believes that the request (1) for a change of venue should be first considered, and then the part of the motion (2) for disqualification of the undersigned as Judge will be considered.

One of the defendants is Honorable Van B. Taylor, Judge of the 14th Chancery Circuit of Arkansas, and in the motion it is alleged that on the trial of the issues in this case, that the jurors who will hear the case will be drawn from the said Chancery Circuit in which Judge Taylor resides, and it will therefore be impossible to select a juror who would not be subject to be influenced by the fact that he may in time be required to appear or file a case or be submitted to the jurisdiction of the court presided over by said defendant Taylor.

Judge Taylor lives at Dardanelle, the county seat of Yell County. The 14th Chancery Circuit comprises the Counties of Logan, Perry, Scott and Yell. Arkansas is divided into two Judicia Districts, known as the Western and Eastern Districts. Logan and Scott Counties are in the Western District of Arkansas, while Perry and Yell Counties are in the Eastern District of Arkansas.

All of the defendants are citizens of Arkansas and reside in the Western District of Arkansas except Judge Taylor, who resides at Dardanelle in Yell County, which is in the Eastern District of Arkansas.

All the events upon which the claim is based occurred in the Western District of Arkansas. There is no diversity of citizenship between plaintiffs and any of the defendants.

Title 28, U.S.C.A., § 1391, provides:

"(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law."

Venue is doctrine of convenience and not jurisdictional. It is a personal privilege of a defendant in a civil suit.

In Japan Gas Lighter Asso. v. Ronson Corp., (D.N.J.1966) 257 F.Supp. 219, the court at page 224 said:

"Venue also limits the forums available to the plaintiff. However, it is a doctrine of convenience, not of constitutional jurisdiction. 1 Moore, Federal Practice, 1317 (2d Ed. 1960); Hart and Wechsler, the Federal Courts and the Federal System, 949-951 (1953). Venue deals with the locality of the suit, that is, with the question of which Court, or Courts, of those that possess adequate personal and subject matter jurisdiction may hear the specific suit in question."

See, also, Daugherty v. Procunier, (9 Cir. 1972) 456 F.2d 97.

In Walker v. Weaver, (M.D.Pa.1967) 266 F.Supp. 415, the court at page 416 said:

"In the first place, all of the named defendants are residents in the Western District of Pennsylvania. 28 U. S.C. § 1391(b) provides:

"`A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.'

"Since 28 U.S.C. § 1343, the statute providing for jurisdiction of cases under the Civil Rights Act, has no special venue provision, 28 U.S.C. § 1391(b) applies to this case. 1 Moore's Federal Practice ¶ 0.144(17), p. 1680 (1964 ed.). This action does not rest on diversity of citizenship and under 28 U.S.C. § 1391(b), the plaintiff has no choice of venue, but must bring the action in the district where the defendants reside. 1 Moore's Federal Practice ¶ 0.142(4), p. 1479 (1964 ed.). Since all the defendants reside in the Western District of Pennsylvania, that is where the plaintiff must bring the action."

The above statute, 28 U.S.C.A., § 1391(b), was amended in 1966 by Public Law 89-714 by inserting the words "or in which the claim arose," and is set forth in Jones v. Bales, infra.

In Jones v. Bales, (N.D.Ga.1972) 58 F.R.D. 453, the court at page 458 said:

"Regarding this action as one pursuant to 42 U.S.C. § 1983, the Court is faced in limine with venue issues. There is no special venue statute for civil rights actions. 1 J. Moore, Federal Practice ¶ 0.14417 at 1680 (1964). Thus, the general venue statute 28 U.S.C. § 1391 (1972 Supp.) controls. Title 28 U.S.C. § 1391(b) provides `a civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose.' Since all the defendants here do not reside in this district, the action must be brought where the claim arose."

The case was appealed to the Fifth Circuit, 480 F.2d 805, and was affirmed on the basis of the reasons and authorities cited by the trial court. See, also, Jimenez v. Pierce, (S.D.N.Y.1970) 315 F.Supp. 365.

Thus, contention No. 1 of plaintiffs is without merit.

In ground (2) of the motion, the plaintiffs allege (a) that in the course of the hearing the Judge made a statement indicating that he personally knew one of the defendants, Judge Taylor, and that he had the utmost confidence in said defendant and indicated strongly that he felt that the defendant Taylor could be guilty of no unconstitutional acts or improper conduct in relation to the case; and that they have reason to believe that the Judge is prejudiced against them by virtue of his statements and his knowledge of the party defendant in this case; (b) that the plaintiffs are informed and believe that the Judge has predetermined the issues in this case in favor of the defendants and that they believe that they cannot receive a fair trial of the issues before the Judge, and therefore petition him to disqualify and change the venue of this case to another federal district court outside the jurisdictional limits of the State Court Judge, Van B. Taylor.

For many years the only statutory law on the subject of when a Judge should disqualify himself was as set forth in 28 U.S.C.A. § 455.

Almost fifty years ago the American Bar Association formulated the original Canons of Judicial...