                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                           April 25, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
WENDELL JAY MOSIER,

      Plaintiff–Appellant,

v.                                                         No. 17-1310
                                                  (D.C. No. 1:17-CV-01144-LTB)
JAMES FARREN; AMY RHOADES;                                   (D. Colo.)
CULPABLE AGENTS; TXOAG TITLE
VII CSED; CAROLINE WOODBURN;
LANA KING (KEMPER); JOHN TERRY,

      Defendants–Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Wendell Jay Mosier appeals the district court’s dismissal for improper venue

of his pro se 42 U.S.C. § 1983 complaint.1 We affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Mosier is pro se, we construe his filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam). But we don’t act as his advocate. See
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
                                     BACKGROUND

       Mosier is an inmate in the Potter County Detention Center in Amarillo, Texas.

He filed pro se a 42 U.S.C. § 1983 complaint in the United States District Court for

the District of Colorado. Each defendant was a Texas resident.

       Mosier claimed that Texas denied him due process and violated his double-

jeopardy rights by filing a criminal non-support charge for child-support arrearages

he assertedly had already paid in full. He claimed that the resulting judgment led

Texas to garnish his wages and deplete his savings account.

       The magistrate judge, in an order to show cause, asked Mosier to explain why

the action shouldn’t be dismissed or transferred for improper venue.

       Mosier then filed a document titled “Amendment to Relief Sought.” R. at 65.

In it, he claims “a significant loss of property in the form of lost wages as a resident

of Colorado.” Id. The following day, he filed a response to the show-cause order

titled “Cause to Proceed in the Current Venue.” Id. at 69. In that document, he stated

that a substantial part of the property relevant to his claim involves wages and bank

accounts based in Colorado.

       The district court sua sponte determined that venue was improper, finding that

“Mosier’s assertion regarding wages and bank accounts in Colorado do not [sic]

demonstrate that a substantial part of property that is the subject of the [complaint] is

situated in Colorado.” Id. at 77. The court also found that “because it appears that []

Mosier’s claims are barred by the Rooker-Feldman doctrine[,]” transfer to a district with

venue wouldn’t be in the interest of justice. See 28 U.S.C. § 1406(a).

                                              2
       So the district court dismissed the case without prejudice for improper venue and

entered judgment by separate order. See id.; 28 U.S.C. § 1391(b). This appeal followed.

                                       DISCUSSION

       On appeal, Mosier makes the same argument that he did below: that Texas

violated his constitutional rights through its child-support proceedings. He fails to

address the controlling issue—whether the district court incorrectly dismissed his

complaint for improper venue.2 But construing his pleadings liberally we turn to that

argument, first addressing whether venue was improper, and then, whether the

district court erred by dismissing, rather than transferring, the case.

       We review de novo whether venue was proper (because that determination is

an interpretation of the venue statute). See Pierce v. Shorty Small’s of Branson

Inc., 137 F.3d 1190, 1191 (10th Cir. 1998). And we review for abuse of discretion a

district court’s decision to dismiss, rather than transfer, a case. See Johnson v.

Christopher, 233 F. App’x 852, 854 (10th Cir. 2007).

       A. Was Venue Proper

       28 U.S.C. § 1391(b) provides that, a civil action may be brought in

       (1) a judicial district in which any defendant resides, if all defendants are
       residents of the State in which the district is located;
       (2) a judicial district in which a substantial part of the events or omissions
       giving rise to the claim occurred, or a substantial part of property that is the
       subject of the action is situated; or



       2
        Instead, he lambasts the district court for making “no decisions based on any
of the material facts,” and not “consider[ing] any grounds for relief” other than
“jurisdiction.” Appellant’s Opening Br. at 9.
                                              3
       (3) if there is no district in which an action may otherwise be brought as
       provided in this section, any judicial district in which any defendant is
       subject to the court’s personal jurisdiction with respect to such action.

28 U.S.C § 1391(b). And as the district court determined, it’s undisputed that all the

defendants reside in Texas, eliminating § 1391(b)(1) as enabling venue in Colorado.3 And

because venue would be proper in another district, § 1391(b)(3) isn’t a potential avenue

to venue.

       Thus, the only possible route to venue lies in § 1391(b)(2), which establishes that

venue is proper in a judicial district in which a substantial part of the events relevant to

the action occurred, or where a substantial part of property that is the subject of the action

is situated. And below, though recognizing that substantial parts of the relevant events

occurred in Texas, Mosier argued that the relevant property was “taxable wages” and

“Federal Bank accounts,” which presumably are located in Colorado.4 R. at 71. But

Mosier’s claim is about Texas state court proceedings and against Texas residents. C.f.

Coando v. Payne, 127 F. App’x 418, 419 (10th Cir. 2005) (“[A] review of [the]

complaint clearly establishes that all of the alleged events giving rise to his claims

occurred in [a different state].”). So the district court was correct to reject Mosier’s vague

references to garnished wages and emptied bank accounts. And venue was improper in

the District of Colorado.

       3
         Mosier agreed that “[t]his provision would place the venue in the Federal
District Court in Amarillo[,] Texas.” R. at 70. But he further stated that the “local
judiciary” is biased against him. Id.
       4
         He also claimed that Colorado is his true place of residence, arguing he spent
relatively little time in Texas since 1999. The plaintiff’s domicile doesn’t factor into
the venue analysis.
                                              4
       B. Was Dismissal, Rather Than Transfer, Proper

       Where it is “in the interest of justice,” a district court shall transfer an

improperly filed case “to any district or division in which it could have been

brought.” 28 U.S.C. § 1406(a). But Mosier “offers us no reason to believe that an

injustice will result from the dismissal as opposed to a transfer by, say, operation of a

statute of limitations upon his claims.” Johnson, 233 F. App’x at 854. And Mosier

offers us no other reason that the district court abused its discretion in dismissing the

case. Nor does our review of the record reveal any. See id. (“In the facts and

circumstances of this case, we discern no such abuse given that the suit was filed in such

an obviously improper venue.”). Thus we find no abuse of discretion.

                                     CONCLUSION

       We affirm the district court’s dismissal of this case. We also grant Mosier’s

motion to proceed on appeal without prepayment of filing fees.


                                              Entered for the Court


                                              Gregory A. Phillips
                                              Circuit Judge




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