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Sinwell v. Governor Milton Shapp

decided: May 25, 1976.

SINWELL, WILLIAM, PUGSLEY, RAYMOND, PERRINE, KENNETH, MAXWELL, ROBERT, LANIGAN, ROBERT, YOCHAM, RICKY, APPELLANTS,
v.
GOVERNOR MILTON SHAPP, GOVERNOR OF PA.; ROBERT KANE, ATTY. GEN. OF PA.; STEWART WERNER, COMMISSIONER OF THE BUREAU OF CORRECTIONS; SUPER., S.C.I. AT GRATERFORD; SUPER., S.C.I. AT PITTSBURG; SUPER., S.C.I. AT HUNTINGDON; SUPER., S.C.I. AT DALLAS; SUPER., S.C.I. AT CAMP HILL; SUPER., S.C.I. AT ROCKVIEW, APPELLEES



Appeal from the United States District Court for the Middle District of Pennsylvania.

Clark, Associate Justice,*fn* and Gibbons and Hunter, Circuit Judges.

Author: Hunter

Hunter, Circuit Judge:

I

Plaintiffs sought to raise in the district court certain constitutional challenges to a Pennsylvania Bureau of Corrections Administrative Directive pertaining to "Behavioral Adjustment Units."*fn1 The district court denied their request for leave to proceed in forma pauperis, and plaintiffs have appealed from that ruling. On October 28, 1975 a panel of this court granted leave to pursue the appeal in forma pauperis.*fn2 The decision appealed from is a final order under 28 U.S.C. § 1291. Roberts v. United States District Court, 339 U.S. 844, 94 L. Ed. 1326, 70 S. Ct. 954 (1950) (per curiam).

The district court's denial of leave to proceed in forma pauperis was based on a conclusion that venue was not proper in the district.

We do not reach the merits of the plaintiffs' case because venue is not properly laid in this district. For that reason leave to proceed in forma pauperis will be denied.

Order of July 8, 1975, Civil No. 75-780, M.D. Pa. There is no mention in the order of the existence or sufficiency of submissions to the court relating to plaintiffs' financial resources.

II

Given this posture of the case, we have no occasion to consider the merits of plaintiffs' claims. We need only note that the complaint is based on the Civil Rights Act, 42 U.S.C. §§ 1981 et seq., and that that statute contains no special venue provision. The district court therefore properly referred to the general venue provisions of 28 U.S.C. § 1391(b).*fn3 That section, since its amendment in 1966, offers two possible bases for venue:

1) the residence of all defendants in the district;

2) a claim arising within the district.

In the present case, defendants (various prison officials and other state government officers) do not all reside in the Middle District, and the district judge correctly rejected possibility 1). He also concluded that "there is no indication that the claims which are presented in this complaint arose in the Middle District," apparently because some of the plaintiffs were incarcerated in other districts.*fn4 While we believe that this conclusion is not entirely free from doubt,*fn5 our disposition of the following point makes it unnecessary to decide the question.

On appeal, the court's attention has been drawn to the possible applicability of 28 U.S.C. § 1392(a),*fn6 dealing with venue in multi-district states. Where, as here, all defendants reside within the state but in different districts, § 1392(a) permits venue in any district where one or more defendants reside. Mothers and ...


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