UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND HERSCHEL JOHNSON, SR.,

Plaintiff-Appellant,

v.

DR. SIMENA CHRISTOPHER; DR. FLOYD; and DR. JAY KHARL,

Defendants-Appellees.	No. 07-7011

(D.C. No. CIV-06-482-RAW)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Raymond Johnson, an inmate in the custody of the Oklahoma Department of Corrections, filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Oklahoma. While difficult to discern the nature of his claim, as best we can tell Mr. Johnson doesn't agree with Oklahoma prison medical staff who continue to deem him incompetent to stand trial. The relief he seeks, however, is abundantly clear, immediate release and ten million dollars in damages.

The district court dismissed the case sua sponte for improper venue pursuant to 28 U.S.C. §§ 1406(a) & 1391(b). The district court did so after observing that Mr. Johnson is incarcerated at the Oklahoma Forensic Center in Vinita, Oklahoma, a facility located in the Northern District of Oklahoma; all of the defendants likewise are citizens within the Northern District; and all of the events alleged occurred there. Simply put, the district court found no basis whatsoever for venue in the Eastern District. While dismissing Mr. Johnson's suit, the district court emphasized that its dismissal was without prejudice1 and identified for Mr. Johnson the Northern District as the appropriate jurisdiction to hear his complaints.

Mr. Johnson appeals to us arguing, in essence, that the district court erred by failing to render a decision on the merits of his case.2 Construing his pro se filings liberally, as we are constrained to do, see Andrews v. Heaton, __ F.3d __, 2007 WL 1180423, at *3 (10th Cir. Apr. 23, 2007), we understand Mr. Johnson as challenging the district court's dismissal of his suit in lieu of transferring it to the Northern District of Oklahoma.

In assessing such a challenge, we are obliged to begin by acknowledging a district court's authority under 28 U.S.C. § 1915(e) to dismiss sua sponte cases not merely on their merits but also based upon improper venue. Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006). This procedure is appropriate where "the defense is obvious from the facts of the complaint and no further factual record is required to be developed," and "only if it is clear that the plaintiff can allege no set of facts to support . . . venue." Id. (internal quotations, citation, and alteration omitted).3 We have no doubt that these conditions and rationales are met here. Venue is clearly inappropriate in the Eastern District because no defendant resides in the Eastern District and no events were alleged to have taken place in the Eastern District. See 28 U.S.C. § 1391(b).

To be sure, the district court had the discretion not only to dismiss but also to transfer Mr. Johnson's case. See Doering ex rel. Barrett v. Copper Mtn., Inc., 259 F.3d 1202, 1209 n.3 (10th Cir. 2001) ("The district court had the authority either to dismiss or transfer the case for improper venue or lack of personal jurisdiction."). But Section 1406(a) indicates that the district court "shall dismiss" a case filed in an inappropriate venue unless it finds the interests of justice would be served by transfer. The district court evidently did not find that requisite met, and we review its conclusion on this score for abuse of discretion. Cf. Ballesteros v. Ashcroft, 452 F.3d 1153, 1160 (10th Cir. 2006) (applying separate venue regulation) ("In civil cases, the question of whether a litigant has brought an action in the proper court is a question of law, while the question of whether to dismiss or transfer an action filed in an improper venue is within the district court's sound discretion and reviewed for abuse of discretion only." (internal quotation omitted)).

In the facts and circumstances of this case, we discern no such abuse given that the suit was filed in such an obviously improper venue. Additionally, Mr. Johnson offers us no reason to believe that an injustice will result from the dismissal as opposed to a transfer by, say, operation of a statute of limitations upon his claims. See generally Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) (pointing to loss of "a substantial part of [plaintiff's] cause of action under the statute of limitations" as "a typical example of the problem [Congress] sought to [avoid]" in enacting § 1406). Indeed, Mr. Johnson, albeit acting pro se, offers us no reason whatsoever that the district court abused its discretion in dismissing the case, and our own review of the record reveals none.

For all these reasons, we affirm the district court's dismissal of this case. We also grant Mr. Johnson's motion to proceed on appeal without prepayment of filing fees, and we remind him that he is obligated to continue making partial payments until the entire fee has been paid. So ordered.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge