      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2       Janis v. Ashcroft, et al.                        No. 02-6506
   ELECTRONIC CITATION: 2003 FED App. 0393P (6th Cir.)
               File Name: 03a0393p.06                     Before: MARTIN and SUTTON, Circuit Judges; MILLS,
                                                                           District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
             FOR THE SIXTH CIRCUIT                                                    COUNSEL
               _________________
                                                         ON BRIEF: Gust Marion Janis, Lompoc, California, pro se.
GUST MARION JANIS,                X
                                                                                _________________
        Plaintiff-Appellant,       -
                                   -                                                OPINION
                                   -   No. 02-6506                              _________________
            v.                     -
                                    >
                                   ,                       BOYCE F. MARTIN, JR., Circuit Judge. Gust Marion
JOHN ASHCROFT , Attorney           -                     Janis, a federal prisoner proceeding pro se, appeals a district
General; AL HERRERA ,              -                     court order dismissing his civil complaint filed pursuant to the
Warden, U.S. Penitentiary,         -                     settlement agreement in Washington v. Reno, Lexington Civil
Lompoc, CA; KATHLEEN               -                     Action Nos. 93-217 and 93-290 (E.D. Ky.), which concerned
HAWK, Director, Bureau of          -                     the propriety of prison telephone system policies. The
                                   -                     settlement agreement afforded inmates an opportunity to
Prisons; DAVID WOODY ;
                                   -                     enforce a specific portion of the agreement within the Eastern
VICTOR A. FLORES; FEDERAL          -                     District of Kentucky. This case has been referred to a panel
BUREAU OF PRISONS,                 -                     of the court pursuant to Sixth Circuit Rule 34(j)(1). Upon
        Defendants-Appellees. -                          examination, this panel unanimously agrees that oral
                                   -                     argument is not needed. See Fed. R. App. P. 34(a).
                                  N
                                                            On April 2, 2001, the defendants implemented new
       Appeal from the United States District Court      telephone policies which limited all Federal Bureau of Prison
     for the Eastern District of Kentucky at Ashland.    inmates to “300 minutes per calendar month for collect-call
  No. 02-00088—Henry R. Wilhoit, Jr., District Judge.    and/or dial direct telephone calls.” On April 29, 2002, Janis
                                                         filed a complaint in the Eastern District of Kentucky against
            Submitted: September 18, 2003                United States Attorney General John Ashcroft; Warden Al
                                                         Herrera, United States Penitentiary - Lompoc, California;
        Decided and Filed: November 5, 2003              Director Kathleen M. Hawk Sawyer, Federal Bureau of
                                                         Prisons; Chief David Woody, Federal Bureau of Prisons Trust

                                                             *
                                                              The Hon orable R ichard M ills, United States District Judge for the
                                                         Central District of Illinois, sitting by designation.

                           1
No. 02-6506                     Janis v. Ashcroft, et al.    3    4     Janis v. Ashcroft, et al.                    No. 02-6506

Fund Systems; Inmate Trust Fund Supervisor Victor Flores,            However, inasmuch as the district court dismissed Janis’s
United States Penitentiary - Lompoc, California; and the          complaint for lack of subject matter jurisdiction, but cited
Federal Bureau of Prisons. The complaint alleged that the         venue language in support of its decision, it appears that the
defendants implemented the new telephone restrictions in          district court confused these separate concepts. Janis’s
retaliation against the inmates for pursuing the Reno             complaint alleged bad faith on the part of and retaliation by
litigation. According to Janis, the defendants acted in bad       the defendants against him and other inmates because they
faith and committed a fraud upon the court when they settled      pursued the Reno litigation. Properly understood, Janis’s
the Reno lawsuit, because at the time of the settlement they      complaint essentially asserted constitutional violations rather
intended to punish the inmates in the future for having           than violations of the settlement agreement. We conclude
brought the lawsuit. Janis also challenged numerous               that these allegations were sufficient to invoke federal
conditions of his confinement at the United States                question jurisdiction pursuant to 28 U.S.C. § 1331. Although
Penitentiary in Lompoc, California, where he is incarcerated.     we note that Janis asserted his claims in the wrong venue as
Janis sought enforcement of the settlement agreement              he filed his complaint in a judicial district where neither he
approved in Reno, as well as injunctive, declaratory, and         nor any defendant resides nor where a substantial part of the
monetary relief.                                                  alleged events occurred, see 28 U.S.C. § 1391(e), we question
                                                                  the propriety of the district court’s sua sponte dismissal for
   The district court concluded that it lacked subject matter     what was essentially a lack of proper venue. See Rauch v. Day
jurisdiction and dismissed the complaint sua sponte pursuant      & Night Mfg. Corp., 576 F.2d 697, 701 (6th Cir. 1978).
to 28 U.S.C. § 1915A. The district court subsequently denied
Janis’s motion for reconsideration. Janis filed a timely notice      While Federal Rule of Civil Procedure 12(h)(3) permits a
of appeal. Janis also filed a motion for a temporary              district court to dismiss a complaint sua sponte for lack
restraining order with this Court.                                subject matter jurisdiction, it does not accord similar authority
                                                                  to dismiss a case for lack of venue. See id.; but see 28 U.S.C.
   We review de novo a district court’s dismissal of a            § 1404(a) (allowing district courts to transfer a case to a
complaint for lack of subject matter jurisdiction. See Friends    district court where venue is proper).
of Crystal River v. United States Envtl. Prot. Agency, 35 F.3d
1073, 1077-78 (6th Cir. 1994).                                       Accordingly, the judgment of the district court is reversed
                                                                  and the case is remanded for further proceedings. Janis’s
  Upon review, we conclude that the district court improperly     motion for a temporary restraining order is denied as it was
dismissed Janis’s complaint for lack of subject matter            filed in the first instance with the wrong court.
jurisdiction. Certainly, the district court was correct in
concluding that Janis had not sought enforcement of any
provision of the settlement agreement and thus, jurisdiction
could not be established “under the alleged guise of being
vaguely linked to [the] enforcement of the [] settlement
agreement.” Indeed, Janis’s complaint did not identify any
specific provision of the settlement agreement that he desired
the court to enforce.
