Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1989)

Richard R. PARSON, Plaintiff-Appellant,v.Peter CARLSON, Warden; United States of America, FederalBureau of Prisons, Defendants-Appellees.

Nos. 87-15061, 88-1647.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 1988.* Decided April 4, 1990.

Before FLETCHER and BEEZER, Circuit Judges, and SAMUEL P. KING,**  District Judge.


The mandate issued on May 15, 1989 in the above matter is hereby recalled. The memorandum filed March 7, 1989 is withdrawn and the attached memorandum is filed in its stead.


Richard Parson appeals pro se the grant of summary judgment against his Bivens claims. Parson, a federal prisoner, complained that he was denied access to the courts, was denied medical treatment, was subjected to cruel and unusual punishment, and was subjected to retaliatory transfers. We review a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

* Parson has been a federal prisoner since June of 1982. In early 1983 he cooperated with FBI officials by providing information on organized crime. Shortly after providing this information, the FBI interview sheet appeared in the prison's general compound. Parson was subsequently transferred to another institution, where the interview sheet reappeared. Parson has since been transferred to a number of institutions. After each transfer, the interview sheet has resurfaced.

Parson has been involved in other actions. He sued two officers for use of excessive force; one officer was ordered to pay nominal damages. He has also been involved in a number of disciplinary proceedings.


We addressed the plaintiff's consolidated appeal in a memorandum disposition filed March 7, 1989. We affirmed the district court's denial of preliminary injunctive relief in appeal no. 87-15061. However, because the district court's reasoning was not ascertainable from its order, we remanded as to appeal no. 88-1647 "so the district court may state in reasonable detail the reasons for its decision" in granting summary judgment against the plaintiff. In its subsequent "Memorandum and Order" the district court responded that " [t]he reasons for [its] decision are stated in great detail in the government's [defendants'] 'Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment' filed as document 105 on December 9, 1987." Therefore, we look to this document in reviewing the district court's decision.

Although we intended our prior memorandum disposition to be a limited remand, we failed to explicitly express our desire to retain jurisdiction. Therefore, it is questionable whether we retained jurisdiction of the appeal. See Malone v. Avenenti, 850 F.2d 569, 573 (9th Cir. 1988) (" [w]here ... a decision remanding for further proceedings in the district court does not explicitly express the court's intention to retain jurisdiction ..., a litigant ... must file a new notice of appeal"). However, " [t]he authority of a Court of Appeals to recall its mandate is clear.... While the authority is not conferred by statute, it exists as part of the court's power to protect the integrity of its own processes.... The authority may be exercised for 'good cause' or to 'prevent injustice.' " Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988) (citations omitted); see also Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248, 254 (9th Cir. 1973) (citing with approval Greater Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C. Cir. 1971), cert. denied sub nom. WHDH, Inc. v. FCC, 406 U.S. 950 (1972)). Therefore, to prevent the injustice which would have otherwise resulted, we recalled our mandate to the district court.


Parson claims that he is the victim of a conspiracy among the defendants and has suffered constitutional violations at a number of prisons throughout the country. In fact, since 1982 he has been imprisoned at federal prisons in Oxford, WI; Talladega, AL; El Reno, OK; Phoenix, AZ; Bastrop, TX; Leavenworth, KS; and Lewisburg, PA, as well as a state prison in Stillwater, MN. Parson is currently imprisoned at USP Lewisburg, PA. However, the district court accepted the defendants' argument in construing 28 U.S.C. § 1391(e) to limit its jurisdiction to those events that allegedly occurred at FCI Phoenix, AZ. Consequently, the court did not consider the plaintiff's claims with respect to events that allegedly occurred at the other prisons.

Section 2 of the Mandamus and Venue Act of 1962, as amended and codified in Title 28 of the United States Code, provides:

Section 1391. Venue generally

(e) A civil action in which a 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, or 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. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.

28 U.S.C. § 1391(e).

Contrary to the defendants' argument, section 1391(e) deals with venue, not jurisdiction. In fact, since section 1391(e) provides that venue is proper in any action against any employee or agency of the United States in the judicial district where "(a) a defendant in the action resides," it actually stands for exactly opposite the proposition for which it is cited by the defendants.

The legislative history of section 1391(e) shows that "the bills' author, the Committees, and the Congress intended nothing more than to provide nationwide venue for the convenience of individual plaintiffs in actions which are nominally against an individual officer but are in reality against the Government." Stafford v. Briggs, 444 U.S. 527, 542 (1980).


Because the district court erred in construing section 1391(e) and, consequently, failed to give full consideration to the plaintiff's claims, we reverse the district court's grant of summary judgment. Each party shall bear its own costs.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation