Unpublished Disposition, 872 F.2d 429 (9th Cir. 1987)

MEMORANDUM^* 

Virgil Nelson appeals from the judgment of the district court, which sua sponte dismissed his claim for declaratory and injunctive relief filed pursuant to 28 U.S.C. §§ 2201 and 2202, without prejudice, on the ground that the District of Arizona was not the proper forum. Nelson contends that the District of Arizona is the proper forum for the claim he filed. We agree.

* PERTINENT FACTS

Nelson is incarcerated at the Federal Correctional Facility in El Reno, Oklahoma, serving a 20-year sentence. On April 17, 1985, the Sheriff of Pima County, Arizona filed a detainer for Nelson with the United States Marshal's Office in Oklahoma. Thereafter, Arizona authorities obtained temporary custody of Nelson through a Writ of Habeas Corpus Ad Prosequendum. Nelson remained in local custody in Tucson, Arizona, until May 14, 1985 when he was returned to the Federal Correctional Facility in El Reno, Oklahoma.

On June 21, 1985, Arizona authorities filed a Request for Temporary Custody of Nelson pursuant to the Interstate Agreement on Detainers (IAD), 18 U.S.C.App.III, Sec. 2. Nelson waived the thirty-day waiting period under Article IV(a) of the IAD, and on August 28, 1985, he was returned to the custody of the Arizona authorities in Pima County. There, he was tried on charges of murder, armed burglary, kidnapping for robbery, attempted armed robbery, and conspiracy. Nelson was found guilty of some charges. He was acquitted on others. The jury could not agree on a verdict on two of the charges. In April, 1986, Nelson was returned to the Federal Correctional Facility in El Reno, Oklahoma.

On November 21, 1986, Arizona authorities obtained another Writ of Habeas Corpus Ad Prosequendum in order to bring Nelson to trial on the remaining charges. On December 4, 1986, Pima County authorities filed another request for temporary custody of Nelson pursuant to the IAD. Nelson received notice of the detainer and requested an administrative appeal.

On December 12, 1986, Nelson filed a Petition for Declaratory and Injunctive Relief against Stephen Neely, the Pima County Attorney and the State of Arizona (Appellees). Nelson's petition requested an injunction prohibiting the Appellees from any further attempts to obtain custody of him while he is in federal custody. Nelson then moved for a temporary restraining order.

On January 8, 1987, the Arizona district court dismissed Nelson's petition without prejudice on the ground that the District of Arizona was not the "proper forum" to hear Nelson's claims. Nelson's request for an injunction pending appeal was denied by the district court on July 29, 1987.

II

DISCUSSION

Eleventh Amendment

Although neither party has raised the issue, we must decide whether the district court correctly asserted jurisdiction over the State of Arizona. Under the Eleventh Amendment, an unconsenting state is immune from suits brought in federal court by its own citizens and by citizens of another state. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Charley's Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 873 (9th Cir. 1987). In order to waive its immunity, a state must give an "unequivocal indication" that it consents to be sued in federal court. Id. Waiver is found where (1) the state expressly consents to federal jurisdiction in the context of the litigation; (2) a state statute or constitutional provision expressly provides that a claim may be brought against the state in federal court; or (3) Congress clearly intends to condition the state's participation in a program or activity on the state's waiver of its immunity. Id.

In the instant matter, we have found nothing in the record to indicate that Arizona has consented to be sued in this matter or in this type of litigation. Our research has not disclosed an Arizona statute or a provision of the Arizona Constitution which expressly authorizes a suit for injunctive relief in federal court against the State of Arizona. Finally, there is nothing in the express provisions of the IAD or its legislative history which indicate that Congress intended states to waive their immunity as a condition of joining the IAD. Cf. Petty v. Tennessee-Missouri Comm'n, 359 U.S. 275, 277-80 (1959) (Supreme Court interpreted sue-and-be-sued clause of an interstate compact as a waiver of the participating states' Eleventh Amendment immunity).

Nevertheless, relying on Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), Nelson contends that " [a]s a matter of statutory construction and public policy, the joinder of the State of Arizona in the agreement is a waiver of sovereign immunity." We disagree. Nelson's reliance on Fitzpatrick is misplaced.

Although Congress may limit a state's Eleventh Amendment immunity, it must clearly manifest its intent to do so. Id. at 456; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240 (1985). Fitzpatrick involved the 1972 amendments to Title VII of the Civil Rights Act of 1964 in which Congress explicitly gave private individuals the right to sue a state for money damages in cases involving employment discrimination. 427 U.S. at 448-49 & n. 2. In contrast, the IAD contains no provisions in which Congress has explicitly or impliedly authorized a suit against a state. Therefore, we conclude that the Eleventh Amendment deprived the district court of jurisdiction over Nelson's suit against the State of Arizona. See Charley's Taxi Radio Dispatch Corp., 810 F.2d at 873 n. 2 ("The Eleventh Amendment may be described as either creating an immunity for states or establishing a jurisdictional limitation on federal courts.").

Nelson has also brought suit against Stephen Neely, the Pima County Attorney, for violation of the IAD. Unlike actions against a state, the Eleventh Amendment does not bar actions against cities and counties. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987). Accordingly, Nelson may maintain a suit for injunctive relief in federal court against the Pima County Attorney. See also Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736-37 (1980) (prosecutors are "natural targets" for injunctive suits since they are the state officers who are threatening to enforce and who are enforcing the law).

Venue

The district court dismissed Nelson's action stating, " [t]his court is not the proper forum to hear these claims." The district court further instructed Nelson to refile his claim in the federal district court in the district where he is incarcerated. The district court did not explain its ruling nor indicate why the District of Arizona is not the proper forum. We review a ruling concerning venue independently without deference to the district court's conclusion. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 841 (9th Cir. 1986).

Both parties agree that venue is determined by 28 U.S.C. § 1391(b). Section 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, except as otherwise provided by law."

Nelson claims that venue is proper in the District of Arizona because the claim arose in Arizona and the defendants reside there. Nelson has alleged a cause of action against the State of Arizona and the Pima County Attorney, seeking an order barring the appellees from further attempts to return the appellant to the District of Arizona.

Appellees contend that the appropriate defendant is the Warden of the Correctional Facility at El Reno, Oklahoma, and the "appropriate cause of action, an attempt to enjoin [the] custodian from releasing the Appellant to the State of Arizona, arises in the Western District of Oklahoma." Whether the Warden is the proper defendant, see Burrus v. Turnbo, 743 F.2d 693, 701 (9th Cir. 1984) ("an injunction preventing [the prisoner's] transfer ... must be directed to the Warden"), vacated as moot sub. nom. Hijar v. Burrus, 474 U.S. 1016 (1985), was not raised or addressed by the district court.

Under section 1391(b), venue was proper in the District of Arizona in this matter because that is the residence of the Pima County Attorney. Our conclusion that venue is proper in Arizona for the cause of action pleaded by Nelson should not be construed as a determination that this matter will withstand a motion to dismiss for failure to state a proper claim or that Nelson has sued the correct defendants under Burrus or that he may properly sue the defendants in this case under Younger v. Harris, 401 U.S. 37 (1971). These are matters that must first be determined in the district court.

The provisions of the IAD do not expressly limit the forum where an action by a prisoner for injunctive relief may be brought. The only provision of the IAD that might impliedly address this issue is article V(g) which provides, " [f]or all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending State...." 18 U.S.C.App.III Sec. 2, Art. V(g). However no case has interpreted this language to limit venue. The district court erred in dismissing Nelson's claim on the ground that the District of Arizona was not the proper forum for the cause of action pleaded by Nelson.

Both parties' reliance on Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), is misplaced. Braden deals with the proper forum when a prisoner attacks an interstate detainer in a federal habeas corpus action. Id. at 488. The Supreme Court in Braden did not discuss the proper forum for a claim for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.

The district court's order of dismissal cannot be upheld under the doctrine of forum non conveniens. In Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955), the Supreme Court concluded that " [t]he harshest result of the application of the old doctrine of forum non conveniens, dismissal of the action, was eliminated by the provision in Sec. 1404(a) for transfer." Accord Cowan v. Ford Motor Co., 713 F.2d 100, 103 (5th Cir. 1983); Harbolt v. Carpenter, 536 F.2d 791, 792 (8th Cir. 1976); Blake v. Capitol Greyhound Lines, 222 F.2d 25, 26-27 (D.C. Cir. 1955); Headrick v. Atchison, T. & S.F. Ry., 182 F.2d 305, 308 (10th Cir. 1950).

III

CONCLUSION

Our determination that the District of Arizona is the proper forum in this suit against the Pima County Attorney does not resolve the merits of the question whether a federal cause of action can be stated under the IAD against a state prosecutor who seeks transfer of a federal prisoner or whether the judgment of the District Court for the Western District of Oklahoma precludes further litigation of this matter.¹  These issues must be presented to the district court in the first instance. The merits of the exhaustion of remedies question raised by appellees must also be litigated in the district court before we can review this issue.

The judgment is reversed and remanded to the district court. On remand the district court is instructed to dismiss the State of Arizona as a defendant.

REVERSED.