                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 30, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 02-51196
                         Summary Calendar


PETER V. SMILDE,
                                    Plaintiff-Appellant,
versus

JOHN SNOW, SECRETARY, DEPARTMENT OF TREASURY; ET AL.,

                                    Defendants,

JOHN SNOW, SECRETARY, DEPARTMENT OF TREASURY; CHARLES O.
ROSSOTTI, Commissioner, United States Internal Revenue Service;
CHARLES A. WILSON, Financial Management Service, Department of
the Treasury; ANTHONY J. PRINCIPI, SECRETARY, DEPARTMENT OF
VETERAN’S AFFAIRS; TRANS UNION INC.; UNITED STATES OF AMERICA,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-01-CV-889-SS
                       --------------------

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Peter V. Smilde (“Smilde”) appeals the district court’s

dismissal of his civil action.   Smilde argues that the district

court abused its discretion by denying his motion for change of

venue, abused its discretion by dismissing his case with


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 02-51196
                                -2-

prejudice, erred by dismissing some of his claims upon initial

review, and conspired with defense counsel to violate his rights.

Smilde has additionally moved this court for a change of venue

and to vacate all orders entered by the district court after

May 13, 2002.

     Smilde has not shown that the district court abused its

discretion by denying his 28 U.S.C. § 1404(a) motion for change

of venue.   While the district court did not articulate the

reasons why it denied the motion, this is not grounds for

reversal.   See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436

(5th Cir. 1989).   Smilde did not show that transferring the case

would be more convenient for any party or witness except himself.

Considering that Smilde waited almost four months after the onset

of his alleged illness and his move to Montana to file the

motion, the district court did not abuse its discretion by

denying the motion for change of venue.   See id.

     Smilde has additionally failed to show that the district

court abused its discretion by dismissing his case with prejudice

for failing to prosecute, failing to follow the Federal Rules of

Civil Procedure, and failing to obey court orders.   The record

shows that Smilde never served the defendants with his initial

disclosures, as required by FED. R. CIV. P. 26(a), despite being

ordered to serve them.   Smilde further refused to participate in

the FED. R. CIV. P. 26(f) conference and refused certified mail

sent to him by defense counsel.   Smilde never filed his lists of
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                                  -3-

potential witnesses, testifying experts, and proposed exhibits

despite being ordered to file them twice.    Finally, Smilde failed

to appear at his deposition or respond to discovery requests

despite being explicitly ordered to do so.   Smilde’s alleged

illness does not excuse his conduct as the record shows that

Smilde never informed the district court of his alleged inability

to attend proceedings or follow the district court’s orders.

Smilde’s alleged failure to receive the district court’s August

15, 2002, order does not excuse his conduct as there is no

indication in the record that Smilde made any effort to check on

the progress of his case.    See Salinas v. Sun Oil Co., 819 F.2d

105, 106 (5th Cir. 1987); cf. Latham v. Wells Fargo Bank, N.A.,

987 F.2d 1199, 1201 (5th Cir. 1993) (“[P]arties have a duty to

inquire periodically into the status of their litigation.”).

     Smilde’s history of delay and refusal to follow court orders

sufficiently shows contumacious conduct on his part.       See Callip

v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1519-21 (5th

Cir. 1985).   As the district court explicitly warned Smilde that

he was facing dismissal unless he obeyed court orders, a lesser

sanction had been imposed.    See id. at 1521.   As Smilde was

proceeding pro se, he was personally responsible for the delay

and the contumacious conduct.    Given Smilde’s personal

responsibility for delay and contumacious conduct and the

previous imposition of lesser sanctions, the district court’s

dismissal of his case with prejudice was not an abuse of
                            No. 02-51196
                                 -4-

discretion.   See Price v. McGlathery, 792 F.2d 472, 475 (5th Cir.

1986).

     Smilde has not shown that the district court erred by

dismissing some of his claims upon initial review.     The district

court was specifically authorized to screen Smilde’s complaint by

28 U.S.C. § 1915(e)(2).   Smilde’s complaint failed to state a

claim upon which relief may be granted regarding his claims

concerning his 1998 taxes and his request for injunctive relief

against the IRS.   Smilde did not state a viable claim under

26 U.S.C. § 6402(f) regarding the $317.73 seized from his 1999

refund to satisfy his 1998 tax liability because the seizure was

made pursuant to 26 U.S.C. § 6402(a) and 26 U.S.C. § 6402(f), by

its terms, only concerns seizures made pursuant to 26 U.S.C.

§§ 6402(c), (d), and (e).   Smilde failed to state a viable claim

regarding his 1998 taxes under 26 U.S.C. § 7422 because he did

not allege that he filed an administrative claim for a refund

that was made under penalty of perjury.      See 26 U.S.C. § 7422(a);

26 C.F.R. § 301-6402-2; see also United States v. Rochelle, 363

F.2d 225, 231 (5th Cir. 1966).   Smilde did not state a viable

claim under 26 U.S.C. § 7433 because he did not allege that he

exhausted his administrative remedies regarding his claims for

damages.   See 26 U.S.C. § 7433(d)(1).     Smilde did not state a

viable claim for injunctive relief because injunctive relief

against the IRS is generally forbidden and Smilde did not allege

or show that there were clearly no circumstances under which the
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                                 -5-

Government might prevail.     See 26 U.S.C. § 7421(a); Enochs v.

Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962).

Although the district court dismissed these claims on another

ground, this court may nevertheless affirm.     See Cardoso v. Reno,

216 F.3d 512, 515 (5th Cir. 2000).

     We do not consider Smilde’s argument that the district court

conspired with defense counsel because it is raised for the first

time in his reply brief.    See Knighten v. Commissioner, 702 F.2d

59, 60 & n.1 (5th Cir. 1983).

     Smilde’s motion in this court for a change of venue pursuant

to 28 U.S.C. § 1406(a) and to vacate all orders entered after May

13, 2002, is without merit.    By filing suit in the Western

District of Texas, Smilde voluntarily submitted himself to the

jurisdiction of that court and consented to that venue.     See Adam

v. Saenger, 303 U.S. 59, 67-68 (1938); Olberding v. Illinois

Cent. R. Co., 346 U.S. 338, 340 (1953).    Personal jurisdiction

and venue are determined at the outset of litigation and are not

affected by subsequent events.     Michigan Trust Co. v. Ferry, 228

U.S. 346, 353 (1913); Exxon Corp. v. FTC, 588 F.2d 895, 899 (3d

Cir. 1978).   Accordingly, transferring Smilde’s case under 28

U.S.C. § 1406(a) would be improper.     See Liaw Su Teng v. Shaarup

Shipping Corp., 743 F.2d 1140, 1147 (5th Cir. 1984).

     AFFIRMED; MOTION FOR CHANGE OF VENUE AND TO VACATE ORDERS

ENTERED AFTER MAY 13, 2002 DENIED.
