                                    ___________

                                    No. 95-4210
                                    ___________

David Barber,                            *
                                         *
              Appellant,                 *   Appeal from the United States
                                         *   District Court for the
     v.                                  *   Western District of Missouri.
                                         *
Dennis J. Simpson; Paul D.               *            [UNPUBLISHED]
Kothcer; Phyllis J. Nelson,              *
                                         *
              Appellees.                 *


                                    ___________

                     Submitted:     August 2, 1996

                           Filed:   August 23, 1996
                                    ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.


     David Barber, a citizen of Illinois, appeals from the district
court's dismissal without prejudice of his civil rights and tort action
because of improper venue.    We reverse and remand for transfer of Barber's
     1
Bivens claims to the Central District of Illinois, and for a determination
of whether the court has subject matter jurisdiction over Barber's Federal
Torts Claims Act ("FTCA") claims.


     Barber brought this action against Dennis J. Simpson, United States
Postal Inspector, and Paul D. Kothcer and Phyllis J. Nelson, United States
Probation Officers, in their individual and official




          1
        Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
capacities.   Barber alleged that he was arrested in June 1993, based on a
false and fraudulent report written by defendants Kothcer and Nelson, and
on a letter written by defendant Simpson regarding Barber's possible
possession of stolen mail.    These documents were forwarded to the Regional
Parole Commission in Kansas City, Missouri, resulting in an arrest warrant
being issued for Barber.    Barber alleged that he was held until August 25,
1995.     Barber claimed defendants' conduct violated his constitutional
rights and Missouri tort law, and alleged jurisdiction was proper under 28
U.S.C. §§ 1331, 1343, and venue was proper under 28 U.S.C. § 1391(e)(2).
He sought monetary damages.


        Whether the Western District of Missouri is a proper venue for
Barber's Bivens claims is determined by reference to 28 U.S.C. § 1391(b),
which states in relevant part that "[a] civil action wherein jurisdiction
is not founded solely on diversity of citizenship may . . . be brought only
in . . . (2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred . . . ."     Cf. Stafford v.
Briggs, 444 U.S. 527, 544 (1980) (Section 1391(e) applies only to suits
against government officials in their official capacities, venue of Bivens
actions governed by § 1391(b)).       Venue may be proper in any number of
districts so long as a substantial part of the events giving rise to the
action occurred there.     Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995).
"One of the central purposes of statutory venue is to ensure that a
defendant is not `haled into a remote district having no real relationship
to the dispute.'" Id. (quoted case omitted).


        Although Barber alleges that fraudulent documents were sent to, and
the decision to have him arrested was made in the Western District of
Missouri, these events do not constitute a substantial part of the events
giving rise to his Bivens claims against these defendants.         Both the
specific allegedly wrongful conduct of these




                                      -2-
defendants--the generation of false and fraudulent documents--and Barber's
arrest occurred elsewhere.     Cf. id. at 985 (Lanham Act case; venue not
proper in district where trailers involved were manufactured and dealership
agreement was executed; conduct that allegedly violated Lanham Act occurred
elsewhere).


     As Barber would probably now be precluded from refiling his Bivens
claims    by the relevant statute of limitations, it was an abuse of
discretion for the district court to dismiss these claims without prejudice
rather than transfer them to the Central District of Illinois.          Cf. Lowery
v. Estelle, 533 F.2d. 265, 267 (5th Cir. 1976) (per curiam) (affirming
district court's decision to dismiss rather than transfer because plaintiff
did not face a statute of limitations problem); Sanchez v. United States,
49 F.3d 1329, 1330 (8th Cir. 1995) (per curiam) (Bivens actions, like 42
U.S.C. § 1983, governed by state's statute of limitations for personal
injury actions where claim arises); Crowder v. True, 74 F.3d 812, 814 (7th
Cir. 1995) (per curiam) (Illinois two-year statute of limitations applied
to Bivens action arising in Illinois).


     As    to   Barber's   claims   against   defendants   in   their     official
capacities, defendants argued below that these claims are properly brought
only under the FTCA, that the United States should be substituted as
defendant, and that the district court lacked subject matter jurisdiction
because Barber had not exhausted his administrative remedies.              See 28
U.S.C. § 2679(a) and (d); Price v. United States, 81 F.3d 520, 521 (5th
Cir. 1996) (FTCA exhaustion requirement is jurisdictional).        The district
court should have addressed the existence of subject matter jurisdiction
over Barber's FTCA claims before ruling on venue.           Cf. United States
ex rel. Rudick v. Laird, 412 F.2d 16, 20 (2d Cir.), cert. denied, 396 U.S.
918 (1969).     On remand, the district court should determine whether the
United States should be substituted as the named defendant on those claims
against defendants in their




                                      -3-
official capacities, and whether Barber exhausted his administrative
remedies under section 2675(a) of the FTCA within the six months prior to
filing suit.   See 28 U.S.C. 2401(b); McNeil v. United States, 508 U.S. 106-
112 (1993) (holding that a complaint filed before exhaustion of remedies
will not be viewed as properly filed as of the date of final agency action,
but instead the complainant will have to refile).      Only if the district
court determines jurisdiction exists should it consider whether venue over
these claims is proper under 28 U.S.C. § 1402(b).


     Accordingly, we remand to the district court for further proceedings
consistent with this opinion.


BEAM, Circuit Judge, dissenting.


     There is clearly no subject matter jurisdiction for either claim
asserted by Mr. Barber.   I would dismiss.


     A true copy.


           Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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