           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 12, 2008

                                     No. 08-30162                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CYNTHIA MCCLINTOCK,

                                                  Plaintiff–Appellant,
v.

SCHOOL BOARD EAST FELICIANA PARISH,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:06-CV-2258


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cynthia McClintock appeals the district court’s dismissal of her suit with
prejudice due to improper venue. Because we conclude that the district court did
not err in ruling that venue was improper and that McClintock’s claims are
time-barred, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30162

                                       I
      Cynthia McClintock was employed as a teacher with the East Feliciana
Parish School Board (Board) pursuant to a semester contract starting in August
2005. On December 16, 2005, a number of McClintock’s students were called to
the principal’s office. As McClintock was herself walking towards the office to
inquire about her students’ whereabouts, she was forcibly detained by a female
resource officer. McClintock was subsequently arrested for interfering with a
police investigation and charged with resisting arrest.     The charges were
ultimately dropped, but McClintock’s contract with the Board was not renewed.
      The incident was published in the newspaper, and McClintock has since
been approached in public by two individuals regarding the incident—a fellow
church member at a Dillard’s in Baton Rouge and a student at her new place of
employment who asked if she had “beat up a janitor in Jackson.” McClintock
claims that she has suffered embarrassment as a result, as well as continued
anxiety regarding the presence of resource officers at her new school.
      McClintock filed suit pro se against the Board on November 28, 2006,
asserting causes of action under 42 U.S.C. § 1983 and state tort law. She mailed
her complaint and a Waiver of Summons to the Board, which were received on
January 3, 2007. The Board took no action at that time. In April 2007,
McClintock hired an attorney, who then sought to serve process on the Board.
Proper service was achieved on May 3, 2007.
      On May 16, 2007, the Board filed a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(3) for improper venue and under Rule 12(b)(5) for
insufficient service of process. The district court agreed with the Board and
further concluded that, as a result of these deficiencies, the running of the
relevant prescriptive period was not tolled under Louisiana law, causing

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McClintock’s claim against the Board to be time-barred. Accordingly, because
the procedural defects could not be cured, the district court dismissed the suit
with prejudice.
                                               II
       We review a district court’s dismissal of a complaint for either improper
venue under Rule 12(b)(3) or insufficiency of service of process under Rule
12(b)(5) for abuse of discretion.1
       In an action not based on diversity, proper venue lies in either “(1) a
judicial district where any defendant resides, if all defendants reside in the same
State, (2) a judicial district in which a substantial part of the events or omissions
giving rise to the claim occurred . . . or (3) a judicial district in which any
defendant may be found, if there is no district in which the action may otherwise
be brought.”2 McClintock filed her suit in the Western District of Louisiana.
The Board is a resident of the Middle District of Louisiana, which is also the
location of the school in which the event underlying this suit took place. Thus,
§ 1391(b)(1) and (3) are inapplicable and venue is proper only if “a substantial
part of the events or omissions giving rise to the claim” occurred in the Western
District.
       Although the chosen venue does not have to be the place where the most
relevant events took place, the selected district’s contacts still must be




       1
         Lowery v. Estelle, 533 F.2d 265, 267 (5th Cir. 1976) (reviewing a dismissal for
improper venue for abuse of discretion); Lindsey v. U.S.R.R. Ret. Bd., 101 F.3d 444, 445 (5th
Cir. 1996) (stating that dismissals for ineffective service of process are reviewed for abuse of
discretion) (internal citation omitted).
       2
           28 U.S.C. § 1391(b).

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substantial.3 We agree with the district court that the Western District of
Louisiana does not satisfy this standard.             The events giving rise to this
complaint, namely McClintock’s detention and arrest, occurred solely in the
Middle District, and thus, no events, let alone a “substantial part of the events”
occurred in the Western District.
       McClintock, however, insists that venue is proper because (1) she was
asked by a student at her current school in the Western District about the
altercation and (2) she continues to experience apprehension regarding the
presence of resource officers at her new school. We disagree with the contention
that these events are sufficient to establish venue. Venue cannot be based solely
on the presence of a third party who is aware of the events underlying a
plaintiff’s claim, particularly when the information was, as here, reported in a
newspaper. Venue also cannot lie simply because a plaintiff continues to
experience the psychological effects of an injury in a particular place. Thus, the
district court was correct to conclude that venue is improper.
                                            III
       If a district court where suit is filed determines that venue is improper, it
has discretion to either dismiss the suit, or “if it be in the interest of justice,
transfer such case to any district or division in which it could have been
brought.”4 Generally, when dismissing for improper venue, a district court does
so without prejudice to filing of the suit in an appropriate district.5 In the

       3
        David D. Siegel, Commentary on 1988 and 1990 Revisions of Section 1391, in 28
U.S.C.A. § 1391 (2006).
       4
           28 U.S.C. § 1406(a).
       5
        See Lowery, 533 F.2d at 267 (dismissing solely on the grounds of improper venue, and
noting that in such a case, dismissal is “of course without prejudice to the filing by [the

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instant case, however, the district court dismissed McClintock’s complaint with
prejudice, because it concluded that in addition to venue being improper,
McClintock’s claims would almost certainly be barred due to the expiration of
the relevant prescriptive period.
       McClintock alleges causes of action under 42 U.S.C. § 1983 and state tort
law. With regard to § 1983 claims, federal courts borrow the limitations period
from state “tort action[s] for the recovery of damages for personal injuries.”6 In
Louisiana, the prescriptive period for tort actions is one year.7 Thus, McClintock
had one year from the date of the events in question to file this lawsuit.
Specifically, the suit had to be filed by December 16, 2006.
       McClintock initiated her action in the Western District of Louisiana on
November 28, 2006. However, Louisiana Civil Code article 3462 provides:
       Prescription is interrupted when . . . the obligee commences action
       against the obligor, in a court of competent jurisdiction and venue.
       If action is commenced in an incompetent court, or in an improper
       venue, prescription is interrupted only as to a defendant served with
       process within the prescriptive period.8

       We have expressly held that this provision governs the determination of
whether the prescriptive period has expired for suits filed in federal court based




plaintiff] of his action in an appropriate district”).
       6
         Wilson v. Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds,
Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5114, as recognized in Jones
v. R.R. Donnelley & Sons Co., 541 U.S. 369, 378-84 (2004); see also Caine v. Hardy, 943 F.2d
1406, 1411 (5th Cir. 1991).
       7
           LA. CIV. CODE art. 3492 (Westlaw 2008).
       8
           LA. CIV. CODE art. 3462 (Westlaw 2008).

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on diversity, as well as those based on § 1983 claims.9 Under article 3492, since
McClintock initiated her suit in an improper venue, her claims are time-barred
unless she served process on the defendants before December 16, 2006. It is
undisputed that McClintock did not achieve proper service of process on the
Board until May 3, 2007.           Thus, the prescription period has expired and
McClintock’s claims are time-barred. Because re-filing in a court with proper
venue would be futile, the district court did not abuse its discretion in dismissing
the suit with prejudice.10
                                              IV
       Since we conclude that the prescription period has expired, we need not
address whether McClintock’s service of process was sufficient under Rule 4(m)
of the Federal Rules of Civil Procedure.
                                      *        *       *
       For the reasons discussed above, the judgment of the district court is
AFFIRMED.




       9
         Calhoun v. Ford, 625 F.2d 576, 577 (5th Cir. 1980) (holding that prescription periods
in diversity suits are governed by Louisiana law, under which the running of the period is not
tolled by filing suit in an improper venue until the defendant is actually served with process);
Checki v. Webb, 785 F.2d 534, 536-37 (5th Cir. 1986) (holding that article 3462, rather than
Federal Rule of Civil Procedure 3, governs the prescription period running on a § 1983 claim,
and that thus, the period is not tolled by filing in an improper venue until process is served).
       10
           See Crase v. Astroworld, Inc., 941 F.2d 265, 267 (5th Cir. 1991) (finding that the
district court did not abuse its discretion in dismissing—rather than transferring—the
plaintiff’s lawsuit for improper venue since the claims were time-barred).

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