                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

Keys v. Dept of Justice
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1683




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Keys v. Dept of Justice" (2008). 2008 Decisions. Paper 712.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/712


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 07-1683 & 07-4573
                                     ___________

                                   DARREN KEYS,
                                           Appellant

                                           v.

                            DEPARTMENT OF JUSTICE
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Civil Action No. 06-cv-2837
                              (Honorable Robert F. Kelly)
                    _______________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 1, 2008

      Before: SCIRICA, Chief Judge, HARDIMAN and COWEN, Circuit Judges.

                                (Filed: August 5, 2008)
                                       _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM.

      Darren Keys, a federal prisoner proceeding pro se, appeals from the District

Court’s order dismissing his petition for a writ of mandamus on the basis of improper

venue. We will vacate and remand for further proceedings.
                                              I.

       At all relevant times, Keys was imprisoned in a federal facility located within the

Middle District of Pennsylvania. In June 2006, he filed what he captioned as a petition

for a writ of mandamus under 28 U.S.C. § 1361 in the United States District Court for the

Eastern District of Pennsylvania. Keys alleges that Department of Justice (“DOJ”)

personnel, in retaliation for prior litigation, falsely charged him with attempting to escape

from prison. He sought a writ of mandamus compelling DOJ personnel to afford him due

process during the disciplinary proceeding. He then filed three other documents seeking

various related relief. In the last of these, he alleged that disciplinary proceedings already

had been resolved against him, that DOJ personnel had denied him due process in several

respects, and that his good-time credits should be restored and his disciplinary charge

expunged. Taken together, Keys’s filings may liberally be construed to request relief in

the nature of habeas corpus relief or relief potentially available under Bivens v. Six

Unnamed Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

       The DOJ moved to dismiss the petition, arguing, inter alia, that venue in the

Eastern District of Pennsylvania was improper under 28 U.S.C. § 1391(e). Under that

section, venue in civil actions against the United States and its employees lies, inter alia,

in any judicial district where the plaintiff resides. The DOJ argued that Keys should be

deemed to reside in Baltimore, Maryland, where he resided before his incarceration. The

DOJ attached a declaration by a DOJ employee listing Baltimore as Keys’s legal



                                              2
residence and release destination. In response, Keys filed a document entitled

“Conditional Acceptance and Demand: ‘Proof of Claim.’” In that document, he

demanded “proof of claim” that he had not been married to a Philadelphia resident on

April 4, 2004, and had not established residence in Philadelphia, before his current

incarceration.

       By order entered January 17, 2007, the District Court dismissed the action for

improper venue. The court stated that Keys resides in Baltimore but did not acknowledge

his apparent contention that he resides in Philadelphia. Keys timely moved for

reconsideration, specifically asserting that his residence is on the 6200 block of

Callowhill Street in Philadelphia, and that a probation officer Scott Smith had approved

his request to move there from Baltimore following release from a previous term of

imprisonment. Keys also argued that the District Court should have transferred the action

under 28 U.S.C. § 1406(a) instead of dismissing it. By order entered February 14, 2007,

the District Court denied the motion. The District Court once again did not address

Keys’s assertions regarding his residence in Philadelphia, and with respect to his transfer

request stated merely that “[a]fter considering the contents of the Petition it was my

determination that it would not be in the interest of justice to transfer this case to another

district.” Keys filed a notice of appeal, which was docketed as C.A. No. 07-1683.

       Keys also filed a second motion for reconsideration, attaching Court of Appeals

correspondence addressed to him at 6225 Callowhill Street in Philadelphia and a copy of



                                               3
the deed conveying the property to his wife. By order entered March 13, 2007, the

District Court summarily denied the motion as “frivolous.” Keys then filed a third motion

for reconsideration, this time attaching a March 7, 2007 Bureau of Prisons report listing

his residence as 6225 Callowhill Street and arguing that the Bureau had “corrected the

error” in its records. By order entered November 20, 2007, the District Court summarily

denied that motion as well. C.A. No. 07-4573 is Keys’s appeal from that order. By order

issued February 13, 2008, we consolidated Keys’s two appeals for all purposes.1

                                            II.

       On appeal, the DOJ (almost but not quite conceding the issue of venue) joins with

Keys in requesting that we vacate the denial of his petition and remand for further

proceedings. We will do so because we believe that the District Court erred in dismissing




  1
    We will construe Keys’s first motion for reconsideration as one under Fed. R. Civ. P.
59(e) and his third and final motion for reconsideration as one under Fed. R. Civ. P.
60(b). Thus, the orders under review are (1) the January 17 order denying his petition,
brought up for review by Keys’s appeal from (2) the February 14 order denying his Rule
59(e) motion, and (3) the November 20 order denying his Rule 60(b) motion. Keys
previously filed in C.A. No. 07-1683 a “motion for clarification and/or stay and/or limited
remand,” seeking in part a determination of whether this Court retained jurisdiction over
that appeal in light of his final motion for reconsideration. That aspect of the motion was
referred to us by a motions panel pursuant to 3rd Cir. IOP 10.3.5, and we now deny it as
unnecessary in light of the District Court’s denial of Keys’s final motion. We have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District
Court’s conclusions of law and review its factual conclusions for clear error. See
Stranahan Gear Co. v. NL Indus., Inc., 800 F.2d 53, 56 (3d Cir. 1986). We review the
denial of Keys’s motions for reconsideration for abuse of discretion. See Max’s Seafood
Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

                                             4
this action on the basis of improper venue without specifically resolving the issue of

whether Keys resided in Philadelphia prior to his incarceration.

       Under 28 U.S.C. § 1391(e)(3), venue in the Eastern District of Pennsylvania was

proper if Keys resided in Philadelphia at the time he filed the action. At that time, Keys

was imprisoned within the Middle District of Pennsylvania. Prisoners, however,

generally are deemed to be residents, not of their place of incarceration, but of their place

of domicile immediately before their incarceration. See Ellingburg v. Connett, 457 F.2d

240, 241 (5th Cir. 1971); 14D Charles A. Wright, Arthur R. Miller, Mary K. Kane,

Federal Practice and Procedure § 3805 (3d ed. 2001). Keys’s response to the DOJ’s

motion to dismiss, inartful though it was, should have put the District Court on notice that

Keys’s pre-incarceration residence in Philadelphia was a contested factual issue.

       The District Court, however, never addressed that issue. Nor did the District Court

address any of the supporting evidence that Keys produced with his motions for

reconsideration. As the DOJ now concedes, that evidence appears potentially sufficient

to show that Keys resided in Philadelphia at the relevant time. Thus, we conclude that the

District Court erred in dismissing this action for improper venue and abused its discretion

in refusing to reconsider that ruling. Accordingly, we will vacate the January 17, 2007,

February 14, 2007, and November 20, 2007 orders under review and remand.

       The DOJ requests that we direct the District Court on remand to transfer this action

to the Middle District of Pennsylvania. The DOJ argues that, whether venue is proper in



                                              5
the Eastern District of Pennsylvania or not, such a transfer would be “in the interest of

justice” because it would obviate the need for further litigation on the issue of venue, the

relevant events occurred in the Middle District, and the necessary witnesses are likely to

be found there. See 28 U.S.C. §§ 1404(a), 1406(a). We agree. Accordingly, the District

Court is directed to transfer this action to the United States District Court for the Middle

District of Pennsylvania, which in turn is directed to consider the non-venue arguments

raised in the DOJ’s motion to dismiss and thereafter to conduct such further proceedings

as may be necessary.




                                              6
