Unpublished Disposition, 902 F.2d 39 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 39 (9th Cir. 1988)

John Andrew JUAREZ, Plaintiff-Appellant,v.E.R. MYERS, Defendant-Appellee.

No. 89-55949.

United States Court of Appeals, Ninth Circuit.

April 26, 1990.

Before TANG, NELSON, and O'SCANNLAIN, Circuit Judges.


John Andrew Juarez, a California state prisoner, appeals pro se and in forma pauperis the district court's order dismissing with prejudice and without leave to amend his 42 U.S.C. § 1983 complaint on the grounds of improper venue. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

"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." 28 U.S.C. § 1391(b). "A claim arises in any district in which a substantial part of the acts, events, or omissions occurred that gave rise to the claim." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). We review de novo the question of whether venue is proper. See id. at 841.

Juarez filed his complaint on September 29, 1988 in the United States District Court for the Southern District of California, naming as defendant E.R. Myers, superintendent of the Correctional Training Facility (CTF) in Soledad, California. The Southern District of California comprises the counties of Imperial and San Diego. 28 U.S.C. § 84(d). Myers does not reside in either of those counties. Juarez does not dispute this fact.

Juarez's complaint contains allegations of racial discrimination and inadequate medical care arising out of events occurring at CTF. The CTF in Soledad, California is in Monterey County which is included in the Northern District of California. 28 U.S.C. § 84(a). Juarez's claims therefore arose in the Northern District rather than the Southern District of California. See Decker Coal Co., 805 F.2d at 842.

Thus, because Myers does not reside in the Southern District, and because Juarez's claim arises in the Northern District, we find that the district court correctly concluded that venue in this case was improper. See 28 U.S.C. § 1391(b).

"The district court of a district in which a case is filed laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). A transfer under section 1406(a) is required only in cases where it is "in the interest of justice." See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). We review a decision to dismiss or transfer under section 1406(a) for an abuse of discretion. See Central Valley Typographical Union, No. 46 v. McClatchy Newspapers, 762 F.2d 741, 745 (9th Cir. 1985).

In his opposition to Myers's motion to dismiss, Juarez argued that venue in the Southern District was proper. Juarez made no attempt to show that justice required transferral of his case rather than dismissal. We find, therefore, that the district court did not abuse its discretion in dismissing Juarez's complaint.1 



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Juarez attached to his brief an exhibit showing that he has already filed a second action against Myers in the Northern District of California. This fact supports our decision to affirm the district court's order of dismissal


The district court also based its decision to dismiss on the ground that service of process on Myers was defective. Because we may affirm the district court's decision on any ground supported by the record, we do not reach the merits of that question. See Sorrano's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313 (9th Cir. 1989)