F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 2, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CHIBUEZE C. ANAEME,
Plaintiff - Appellant,
v. No. 05-2051
(D. New Mexico)
STATE OF FLORIDA; STATE (D.Ct. No. CIV-04-976 JP/LFG)
ATTORNEYS OFFICE, Jacksonville,
Florida; HARRY L. SHORSTEIN,
Individually and in his capacity as State
Attorney with the State Attorneys Office,
Duval County, Jacksonville, Florida;
SHANNON HEATHER PADGETT,
Individually and in her capacity as
Assistant State Attorney with the State
Attorney’s Office, Duval County,
Jacksonville, Florida; JONATHAN
SACKS, Individually and in his capacity as
Assistant State Attorney with the State
Attorney’s Office, Duval County,
Jacksonville, Florida; DEPARTMENT OF
CORRECTIONS, FLORIDA, Duval
County, Florida; JACKSONVILLE
SHERIFF’S OFFICE, Florida, et al;
JACKSONVILLE POLICE
DEPARTMENT, Florida, et al; PRE-
TRIAL DETENTION FACILITY, Duval
County; JAMES I. MONTGOMERY
CORRECTIONAL CENTER;
NATHANIEL GLOVER, JR., Officer,
Individually and in his capacity as Sheriff
with the Jacksonville Sheriffs
Office/Jacksonville Police Department; K.
COPELAND, Individually and in her
capacity as Lieutenant with the
Jacksonville Sheriffs Office/Duval County
Pre-Trial Detention Facility, Jacksonville,
Florida; OFFICER FOWLER; OFFICER
HENDERSON; OFFICER JESS; OFFICER
WOLLITZ; OFFICER SMITH; JOE
SCOTT; OFFICER LEONARD; C.G.
BLUNT; OFFICER MESSICK; D.
BRANTLEY; OFFICER SCOTT,
individually and in their capacities as
Sergeants/Duval County Pre-Trial
Detention Facility, Jacksonville, Florida;
OFFICER ROBERT; FRED FLINTSTONE;
R.W. REONAS; M.J. POWERS,
individually and in their capacities as
Officer(s) with the Jacksonville Sheriffs
Office/Jacksonville Police Department and
the Responding, Arresting and Reporting
Officer(s); R. SHINHOLSER; OFFICER
AUSTIN; S. PAGE; J. GRIFFIS; OFFICER
BEESON; OFFICER TOLLIVER; J.M.
CRUMP, II; OFFICER MCDUFFIE; J.A.
WOOD; OFFICER WARREN; OFFICER
GLEN; OFFICER SALANOS; OFFICER
CHAPPELL; A. GORDON; OFFICER
PRESCOTT; R.L. GREEN; W.M. FIELDS;
OFFICER BLANTON; OFFICER
SANBORN; OFFICER CAMPBELL;
FRANCIS R. COTTON; OFFICER
MCDONALD; M.L. GRADY; C.R.
SCARPINATI; T. ATTAWAY,
individually and in their capacities as
Officer(s) with the Jacksonville Sheriffs
Office/Duval County Pre-Trial Detention
Facility, Jacksonville, Florida; MS.
FULSORD; MS. WILLIS, individually and
in their capacities as employees of the
Jacksonville Sheriffs Office/Jacksonville
Police Department; NURSE MAYES;
NURSE PHILLIPS; P. BROOMFIELD;
NURSE BAZELLE; DENISE HUNT;
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NURSE JENKINS; NURSE BROWN;
NURSE RHOME; NELSON AGUILAR;
BRENDA LUNA; GOODMAN;
individually and in their capacities as
medical personnel at the Duval County Pre-
Trial Detention Facility, Jacksonville,
Florida and at the James I. Montgomery
Correctional Center; OFFICER ACOSTA;
OFFICER DAWKINS, Individually and in
their capacities as lieutenants with the
Jacksonville Sheriffs Office/The James I.
Montgomery Correctional Center,
Jacksonville, Florida; OFFICER OWENS;
OFFICER ARNETT; OFFICER
BARRETT; OFFICER BROWN; OFFICER
MANNING; OFFICER LEWIS; OFFICER
MCWATER, individually and in their
capacities as Sergeants with the
Jacksonville Sheriffs Office/The James I.
Montgomery Correctional Center,
Jacksonville, Florida; S. WHITTY; L.
HOLSTAD; L. RUSS; W.M. CLARY; V.D.
PARRISH; OFFICER MUENCH;
OFFICER WANSLEY; J. CHESTNUT;
OFFICER GILPIN; OFFICER SMITH;
OFFICER LUCAS; A.D. FLEMING; S.
MORGAN; L. MALONE; OFFICER
PARRETT; K.B. ROLLYSON; OFFICER
OJEDA; J.M. BALDERSON; OFFICER
RUPRIGHT; D.L. PINKSTON; OFFICER
CONLEY; M. MOBLEY; R.S. WHITE; T.
MEANS; D. MANN; OFFICER
JOHNSON; OFFICER PFLEINGER; E.
WATKINS; D. SULLIVAN; OFFICER
LOVINGS; OFFICER THOMAS, JR.; D.S.
BAILEY; J.L. COLLINS; OFFICER
ANDREWS; OFFICER SWINDLE;
OFFICER JOHNSON; OFFICER NIPPER;
OFFICER WILLENBRECHT; T.D.
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TAYLOR, OFFICER THOMPSON,
individually and in their capacities as
officer(s) with the Jacksonville Sheriffs
Office/The James I. Montgomery
Correctional Center, Jacksonville, Florida;
NURSE LONG; VALARIE THOMPSON;
NURSE SMITH; NURSE JACKSON;
NURSE HARRISON; NURSE HINES;
NURSE MURRELL; NURSE LEMASTER;
JUDITH SOFFLER, individually and in
their capacities as medical personnel with
the Jacksonville Sheriffs Office/The James
I. Montgomery Correctional Center,
Jacksonville, Florida; L.J. SPATES,
individually and in his capacity as Director
and employee with the Jacksonville
Sheriffs Office/The James I. Montgomery
Correctional Center, Jacksonville, Florida;
STANDARD SECURITY SERVICES; JIM
TAYLOR; K., DRYGEN; D.G. COLE;
L.A. LAPOINTE, II, individually and in
their capacities as Officer(s), Sergeants,
Security Officer(s)/Guards respectively
with Standard Security Services,
Jacksonville, Florida deployed under
contract with Greyhound Lines, Inc. at the
Greyhound Bus Terminal on 10 N. Pearl
St., Jacksonville, Florida; GREYHOUND
LINES, INC.; WAYNE GUELTGOW;
FRANCES FROST; MELINDA,
individually and in their capacities as
Terminal Manager and Customer Service
Representative(s)/Agent(s) with Greyhound
Lines, Inc., Jacksonville, Florida and
Macon Georgia respectively; OFFICIAL
REPORTERS, INC.; BOB MAYER,
individually and in his capacity as Court
Reporter/employee with Official Reporters,
Inc., Jacksonville, Florida,
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Defendants - Appellees.
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ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Mr. Chibueze Anaeme, a pro se litigant, appeals from the district court's
dismissal of his complaint for improper venue. 1 Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm.
On August 31, 2004, Anaeme filed a “Complaint for Malicious Prosecution
and Abusive Litigation” in the United States District Court for the District of
New Mexico. He alleged the appellees violated his civil rights under 42 U.S.C.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1
This is the second dismissal of Anaeme’s complaint by the New Mexico court.
His first civil rights action against the same defendants was dismissed without prejudice
for failure to prosecute because Anaeme failed to properly serve the numerous
defendants. Anaeme v. State of Florida, et al., 125 Fed.Appx. 265 (10th Cir. 2005).
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§§ 1981, 1983 and 1985. The alleged violations all stemmed from Anaeme’s
arrest, conviction and incarceration in Jacksonville, Florida.
The appellees moved to dismiss, arguing lack of personal jurisdiction,
improper venue, and failure to state a claim for which relief can be granted.
Anaeme did not respond to the motions.
On February 22, 2005, the district court dismissed the case without
prejudice because Anaeme had made no allegations in his complaint that
supported venue in the district of New Mexico. The court found Anaeme neither
alleged any events occurred in New Mexico, nor any of the numerous defendants
committed any relevant acts in New Mexico.
Appellees have urged this Court to dismiss this appeal, due to Anaeme’s
failure to respond to the motions to dismiss, and thus to preserve his appellate
arguments supporting venue in the district of New Mexico. Nonetheless, we
choose to address the issue presented by the district court’s order, adhering to our
oft-stated policies of construing pro se pleadings liberally, Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), and deciding cases on the
merits as opposed to dismissing them because of procedural defects. Denver &
Rio Grande W. R.R. Co. v. Union Pacific R.R. Co., 119 F.3d 847, 848 (10th Cir.
1997).
A “district court's determination of where [an] action may be brought
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involves an interpretation of the venue statute and is, therefore, a question of law
subject to de novo review.” Pierce, 137 F.3d at 1191. Once a determination has
been made that venue is improper, the court's subsequent decision whether to
dismiss the case or transfer to a proper venue is reviewed for abuse of discretion.
Id.
Anaeme’s complaint “is not founded solely on diversity of citizenship . . .
.” 28 U.S.C. § 1391(b), rather, it alleges numerous violations of Anaeme’s
constitutional rights under 42 U.S.C. §§ 1981, 1983 and 1985. Federal courts
have jurisdiction. But, under the general venue statute, the complaint may
“be brought only in (1) a judicial district where any defendant
resides, if all defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or omissions giving
rise to the claim occurred, . . . or (3) a judicial district in which any
defendant may be found, if there is no district in which the action
may otherwise be brought.”
28 U.S.C. § 1391(b).
We agree with the district court that venue does not lie in New Mexico.
First, it is apparent from the record that none of the appellees reside in New
Mexico; indeed, Anaeme alleges all of the appellees are residents of, or
businesses or governmental entities in, the state of Florida. 2 Second, according to
2
Anaeme does allege three Greyhound Lines, Inc., employees were “residents of
the State of Florida and Georgia.” (R., Doc. 1 at 6.) This allegation has no bearing on
our analysis or conclusion.
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Anaeme’s complaint, all of the alleged events giving rise to his claims occurred in
Florida. He alleges “[t]he action(s) and incident(s) that were resultant of this
complaint occurred in Duval County, Florida within the territorial boundaries of
the Federal District of the Middle District of Florida.” (R., Doc. 1 at 6.) Third,
there is a district “in which the action may otherwise be brought”—the Middle
District of Florida 3—and correspondingly, no indication in the record that any of
the appellees “may be found” in New Mexico. 28 U.S.C. § 1391(b)(3).
For the first time on appeal, Anaeme contends the district court erred in
dismissing the case because Greyhound Bus Lines engages in interstate commerce
throughout the United States, including New Mexico, the named correctional
facilities receive federal money, and the other appellees are associated with either
the bus company or the correctional facilities. Anaeme did not raise these issues
in the district court. Moreover, he did not allege them in his complaint. The
arguments are presented for the first time to this Court. We do not consider
arguments initially raised on appeal. Pierce v. Shorty Small’s of Branson, Inc.,
137 F.3d 1190, 1192 (10th Cir. 1998).
3
Anaeme has also filed two new complaints in the United States District Court for
the Middle District of Florida. Both appear similar, if not identical, to this case in terms
of allegations and parties. The first complaint was filed on February 25, 2005; the case is
awaiting disposition pending Anaeme’s response to motions to dismiss. (USDC -
MDFL, No. 3:05-cv-00178, Doc. 1) The second complaint was filed on July 28, 2005.
(USDC - MDFL, No. 3:05-cv-00712, Doc. 1).
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Because New Mexico was not a proper venue, the district court properly
dismissed the case without prejudice. We decline to address the additional issues
raised by the appellees dealing with personal jurisdiction, service of process, and
immunity.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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