United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
plaintiff Bryan Richard Howard is a prisoner in the custody
of the Federal Bureau of Prisons, currently housed at the
Oxford Federal Correctional Institution (FCI-Oxford) and
formerly housed at the United States Penitentiary in
Leavenworth, Kansas (USP-Leavenworth). Howard is proceeding
on Eighth Amendment claims against defendants Rodgers,
Wettlauffer, Leonhard, Crooks, and Maurelli related to
Howard's sexual assault at USP-Leavenworth. Now
defendants have moved to dismiss Howard's claims pursuant
to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) or,
alternatively, to transfer this case to the United States
District Court for the District of Kansas pursuant to 28
U.S.C. § 1404. Dkt. 22. Because venue is improper here,
I will transfer Howard's case to Kansas.
discussed Howard's allegations in previous orders.
See Dkt. 10 and Dkt. 12. For purposes of
defendants' motion to dismiss, it suffices to say that
Howard alleges that a guard at USP-Leavenworth, defendant
Rodgers, sexually assaulted him, and that the remaining
defendants failed to protect Howard. All underlying events
took place as USP-Leavenworth.
contend that this court may not exercise personal
jurisdiction over them because they do not have sufficient
contacts with Wisconsin. They also contend that venue is not
proper here. On a motion to dismiss for lack of personal
jurisdiction, the court accepts all well-pleaded factual
allegations in the plaintiff's complaint as true and
resolves any factual disputes in his favor. Felland v.
Clifton, 682 F.3d 665, 672 (7th Cir. 2012).
plaintiff, Howard must prove that this court may exercise
personal jurisdiction over defendants. RAR, Inc. v.
Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.
1997). Here, in response to defendants' motion, Howard
bears the burden of making a prime facie showing of personal
jurisdiction. Purdue Research Found. v.
Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.
2003). In § 1983 suits, “personal jurisdiction
issues are resolved under the laws of the state where the
forum is located.” Kinslow v. Pullara, 538
F.3d 687, 690 (7th Cir. 2008). In short, personal
jurisdiction depends on whether defendants fall within the
state's jurisdictional statute and “have sufficient
‘minimum contacts' with [Wisconsin] such that the
maintenance of the suit ‘does not offend traditional
notions of fair play and substantial justice.'”
Tamburo v. Dworkin, 601 F.3d 693, 700-01 (7th Cir.
2010) (quoting Int'l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)).
not spend time discussing the more nuanced aspects of
personal jurisdiction here because Howard does not allege
any facts that indicate that this court may exercise
personal jurisdiction over defendants. Howard has not alleged
any facts that indicate that defendants have had contacts
with Wisconsin that “directly relate to the challenged
conduct or transaction, ” i.e., specific personal
jurisdiction, id. at 702, or that defendants have
made continuous and systematic contacts with or are
“essentially at home” in Wisconsin, i.e., general
personal jurisdiction, see, e.g., Abelesz v. OTP
Bank, 692 F.3d 638, 654 (7th Cir. 2012). According to
defendants, they all live and work in Kansas, and none have
stepped foot in Wisconsin since long before the alleged
assault took place, if at all. They do not own or lease any
real or personal property in Wisconsin. They do not maintain
Wisconsin telephone numbers or mailing addresses. They have
no ties to Wisconsin sufficient to establish this court's
personal jurisdiction over them, general or specific. And
Howard offers no reason to conclude otherwise. The fact that
Howard was transferred to Wisconsin since the underlying
events at Leavenworth occurred does not change the analysis.
See, e.g., Hoeller v. Village of
Barrington, 619 F. App'x 534, 535 (7th Cir. 2015)
(“The only supposed contact between the village and
Wisconsin that [plaintiff] (belatedly) identifies is his move
to Wisconsin and his letter to the village saying he had
moved there. But his ‘unilateral activity'
of moving to the forum state or contacting a non-resident
defendant from there does not satisfy the requirement that
the village have contact with the forum
state.”). Accordingly, I could dismiss Howard's
claims for lack of personal jurisdiction, pursuant to Rule
similar reasons, I could dismiss Howard's claims for
improper venue, pursuant to Rule 12(b)(3). A civil action is
properly venued 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 (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). The Western District of Wisconsin
does not satisfy any of these options: none of the defendants
reside here; none of the underlying events occurred here;
and, regardless of the personal jurisdiction issue, it is not
the case that no other district would be a proper
venue (in fact, defendants concede that the District of
Kansas is an appropriate venue). Venue is not proper here.
under 28 U.S.C. § 1406(a), “[t]he district court
of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” Although
this court may not exercise personal jurisdiction over
defendants, it may still transfer the case if in the interest
of justice. Cote v. Wadel, 796 F.2d 981, 985 (7th
Cir. 1986) (“And under 1404(a) as under 1406(a), the
transferring court need not have personal jurisdiction over
the defendants.”). I have already determined that
Howard has stated Eighth Amendment claims against defendants,
and defendants concede that venue is proper in the ...