Petition for Writ of Certiorari — Sinclair v. Montgomery County

| supreme Court, U.S,

EILED

8 7 * 9 40 | DEC +O apgs

ef Ser OPRNIOL JR,

= CLERK

No.

In The

Supreme Court of the Wnited States

OCTOBER TERM, 1987

CLIFFORD RAY SINCLAIR, Petitioner

Vv.

MONTGOMERY COUNTY, ALABAMA, et al.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BILL BoypD

218 East Louisiana Street

McKinney, Texas 75069

214/542-0191

Attorney for Petitioner

| a . i a = a)

— - , .

af —. - ;

ix a . ae ‘y "

; @ a? ia ; f

foie , T rs =

i mee A :

aM ' 7 4 7

ia Rees :

ee at ee

i

QUESTIONS PRESENTED

1. Whether a Texas plaintiff seeking recovery under 42

U.S.C. § 1983 against the State of Alabama for wrongful

arrests and attempts at extradition through unlawful means,

may maintain a suit in the district of his arrest under the

federal venue statute, 28 U.S.C. § 1391(b), and in light of

this Court’s opinion in Leroy v. Great Western United Corp.,

443 U.S. 173 (1979).

ll

TABLE OF CONTENTS

Page

Onimions Gelow 2... .6 6x05 40cheeeee eee eee 1

drieengmnhs sc oa sas ons hak ae cee 1

Statutory Provisions Involved ..................6. 2

rrr re rrr “4 Nh aK ee oe ae 2

-Reasons for Granting the Petition ................ 4

EP ie td Ae oo 8

pn a re rrr rere rrr ee i ee A-1

Appentic B ... .6 oc csisicss eee B-1

Appendix Cw... 65 ckccecchiaeeee ee ee C-1

ill

TABLE OF AUTHORITIES

Cases

Great Western United Corp. v. Kidwell,

577 F.2d 1256 (5th Cir. 1978), rev'd,

Leroy v. Great Western United Corp.,

Co en

Leroy v. Great Western United Corp.,

ge i, 4, 5, 6

Maney v. Ratcliff, 399 F.Supp. 760

Ne eb dds bee 4dsepwaeewes

Statutes:

Civil Rights Act of 1964, 42 U.S.C.

Ne ee ek ak ye ga beeen i, 4,°

Venue Statute, 28 U.S.C. § 1391(b)

SE aaa ety 65 da One aA peas Ke OAs i, % 45,85

In The

Supreme Court of the United States

OCTOBER TERM, 1987

No.

CLIFFORD RAY SINCLAIR, Petitioner

VU.

MONTGOMERY COUNTY, ALABAMA, et al.*

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner Clifford Ray Sinclair respectfully prays

that a Writ of Certiorari issue to review the Judgment and

Opinion of the United States Court of Appeals for the Fifth

Circuit entered September 11, 1987.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra) is not

reported. The orders of the district court (App. B, infra) was

not accompanied by an opinion.

JURISDICTION

The judgment of the court of appeals (App. C, infra) was

entered on September 11, 1987. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

* The other parties to this case are Respondents Jimmy Harold Evans,

Eleanor I. Brooks, Mac Sim Butler, O. C. Thompson, State of Alabama,

Brian E. Morgan, Alabama Securities Commission and Landon Thomas

Aldrich a/k/a Landon Thomas Aldridge.

2

STATUTORY PROVISIONS INVOLVED

1. Venue Generally, 28 U.S.C. 1391(b) (1977) provides:

A civil action wherein jurisdiction is not founded solely on

diversity of citizenship may be brought only in the judicial

district where all defendants reside, or in which the claim

arose, except as otherwise provided by law.

STATEMENT

1. In the Spring of 1977, Petitioner, Mr. Sinclair began

doing business in Plano, Texas, under the name of Diversi-

fied Financial and Management Services. As a part of the

business, Mr. Sinclair assisted individuals in preparing

applications for loans and submitting those applications to

lending institutions. Mr. Sinclair had a local representative

in Alabama who solicited prospective customers. The local

representative was to locate a person interested in obtaining

a loan, obtain the necessary information and submit the

application to Mr. Sinclair in Plano, Texas. The local

representative collected a small fee in connection with

the services. .

Apparently, during this same time, the local representa-

tive in Alabama solicited the information from prospective

customers and collected the initial fee, but unbeknownst to

Mr. Sinclair failed to forward the information to him.

Thereafter, the District Attorney of Montgomery County,

Alabama, sought and obtained 24 indictments against Mr.

Hunt, the local representative. Mr. Hunt later entered into

an agreement, under which he made complete restitution to

each of the individuals involved in the above 24 counts.

During the May 1978 term of the Montgomery County

Grand Jury, the local District Attorney caused Mr. Sinclair

to be indicted on the same 24 counts. Thereafter, on May 30,

1978, Mr. Sinclair was arrested in the Eastern District of

Texas, without a warrant, and prior to any requisition of

3

Mr. Sinclair by the State of Alabama. The State of Alabama

then requested the Governor of the State of Texas to deliver

Mr. Sinclair to Alabama on or about July 5, 1978. In Sep-

tember of that year, the Governor of the State of Texas held

a hearing on Alabama’s extradition request, at which time

the request was denied.

The State of Alabama made no further attempts to extra-

dite Mr. Sinclair between the end of 1978 and March of

1984. At that time, the Defendants filed a second request for

extradition, but then withdrew that request prior to any

determination being made thereon. Again, in May of 1984,

Alabama filed its third request for extradition, but again,

withdrew that request prior to any judicial determination

made with respect to its sufficiency.

On May 17, 1984, Defendants filed a fourth request for

extradition which resulted in a Governor's warrant being

issued for the arrest of Plaintiff. Mr. Sinclair was arrested,

and thereafter filed his application for a writ of habeas cor-

pus in Rockwall County, Texas. That court issued its final

order ordering Mr. Sinclair discharged. The Defendants

took no further action until May ef 1985, at which time they

caused Mr. Sinclair to be arrested again on the very same

old indictments. Once again, a writ of habeas corpus was

filed and a second judicial determination was made dis-

charging Mr. Sinclair. That court’s final order further

included certain findings which, under the doctrine of res

judicata, would prevent Defendants from continuing to

attempt to extradite Mr. Sinclair.

Despite all of the above, however, Defendants caused

Plaintiff to be arrested again on December 20, 1985, in Dal-

las, Dallas County, Texas on the same old indictments.

As a result of the actions of Defendants, Plaintiff insti-

tuted this suit in the Marshall Division of the Eastern Dis-

trict of Texas seeking relief from Defendant’s actions.

4

2. Petitioner brought this action in the Marshall Division

of the Eastern District of Texas seeking declaratory and

injunctive relief and monetary damages against Respon-

dents for violation of his civil rights as provided by 42

U.S.C. § 1983. Respondents moved to dismiss on the

grounds the court lacked jurisdiction and venue was

improper in the Eastern District of Texas under 28 U.S.C.

section 1391 (b).

The trial court heard Respondent’s motions to transfer

venue and, upon finding that “all relevant actions occurred

in the Middle District of Alabama,” the court issued its

Order (App. B1, infra) transferring this cause to that dis-

trict. Petitioner then filed his Motion for Rehearing, asking

the court to maintain venue in the Eastern District of

Texas. The trial court, upon reconsidering its earlier Order,

did not maintain venue in the Eastern District of Texas,

but, rather, dismissed Petitioner's case.

On appeal, the Fifth Circuit affirmed the decision of the

district court. The sole issue before the appeals court was

whether this Court’s opinion in Leroy v. Great Western

United Corp., 443 U.S. 173 (1979) mandated venue only in

the Middle District of Alabama. In the opinion of the Fifth

Circuit, Leroy was controlling despite various distinguishing

factors between that case and the case at hand. The court

rejected Petitioner’s argument that the apparent risks of

multiple venue locations in Leroy were not present in this

case and held that venue was proper only in Alabama (App.

A, infra).

REASONS FOR GRANTING THE PETITION

This case presents an important question of law concern-

ing the scope of this Court’s opinion in Leroy v. Great West-

ern United Corp., 443 U.S. 173 (1979) and the proper

interpretation of the federal venue statute, 28 U.S.C.

§1391(b). Essentially, if Leroy is held to establish a single

5

location for venue in section 1983 claims and the special

needs of a plaintiff must be disregarded, then for practical

purposes, a new form of “venue gap” is created under

§ 1391 (b).

1. Section 1391(b) provides:

A civil action wherein jurisdiction is not founded

solely on diversity of citizenship may be brought

only in the judicial district where all defendants

reside, or in which the claim arose, except as other-

wise provided by law.

The issue before this Court in Leroy was where a claim

arises for the purposes of § 1391(b). In that case, a Texas

plaintiff filed suit in the Northern District of Texas to have

an Idaho takeover statute declared invalid insofar as it pur-

ported to apply to interstate cash tender offers to purchase

securities traded on a national exchange. Leroy at 175. The

only contact between the state of Idaho and the Northern

District of Texas was that the tender offer was made by the

plaintiff in Dallas, Texas and the offer was delayed by-fail-

ure to comply with the Idaho statute. Jd. at 176-177.

The district court held that venue was improper under

§ 1391(b) and the Fifth Circuit reversed, holding instead

that the injury had occurred in Texas and venue was proper

there. Great Western United Corp. v. Kidwell, 577 F. 2d 1256,

1265-74 (5th Cir. 1978). This Court reversed the Court of

Appeals and held that venue was proper only in the state of

Idaho. Leroy at 185.

In so holding, the Court recognized that “... the purpose

of statutorily specified venue was to protect the defendant

against the risk that a plantiff will select an unfair or incon-

venient place of trial.” Jd. at 183-84. The Court further rec-

ognized that in allowing venue where the claim arose,

Congress intended to close the “venue gap” which existed in

some suits involving multiple defendants and to restrict

6

venue “to the residence of the defendants or to ‘a place

which may be more convenient to the litigants’—i.e., both of

them— ‘or to the witnesses who are to testify in the case.’”

Id. at 185 (citing S. Rep. No. 1752, 89th Cong., 2d Sess. 3

(1966)). From this, the Court reasoned,

In our view, therefore, the broadest interpreta-

tion of the language of § 1391(b) that is even

arguably acceptable is that in the unusual case in

which it is not clear that the claim arose in only

one specific district, a plantiff may choose between

those two (or conceivably even more) districts that

with approximately equal plausibility—in terms of

the availability of witnesses, the accessibility of

other relevant evidence, and the convenience of the

defendant (but not of the plaintiff)—may be

assigned as the locus of the claim.

Id. This Court then concluded that where the only action

taken was in Idaho, by Idaho residents, the bulk of wit-

nesses resided there and where holding otherwise could sub-

ject the defendants to suit in almost any district, venue was

proper only in Idaho. Jd. at 185-87.

2. This Petition does not question the rationale or conclu-

sion of the Leroy decision, but rather, its application to the

choice of venue by a plaintiff who is subjected to direct

injury in his district of residence when the defendant has

acted against him individually. Furthermore, this Petition

questions the propriety and justice of creating a new “venue

gap” within § 1391(b).

2a. Petitioner asserts that Leroy is not controlling when a

defendant acts directly against a particular plaintiff. In

Leroy, the plaintiff sought to hold an Idaho statute generally

unconstitutional through proceedings in a Texas court.

Unlike the facts in Leroy, Petitioner does not challenge the

constitutionality of any Alabama statute but urges that he

was the victim of acts by the State of Alabama directed par-

7

ticularly against him and in violation of his civil rights as

provided by 42 U.S.C. § 1983. See Statement, supra at 2-3.

Furthermore, the districts where the cause of action arose

were limited and within the sole control of the Defendant,

not the Plaintiff. Alabama caused the Petitioner to be

unlawfully arrested in both the Eastern and Northern Dis-

tricts of Texas. Statement, supra at 2-3. While their acts

may have been orchestrated in Alabama, it was clear that

the aid of Texas law enforcement personnel would be

required and that the impact would be upon the plaintiff in

those districts. On these facts, it cannot be argued that the

Eastern District of Texas was an “unfair or inconvenient”

district for suit.

Petitioner urges that his situation and those like it should

be controlled by Maney v. Ratcliff, 399 F.Supp. 760 (E.D.

Wis. 1975). In Maney, a Wisconsin resident brought suit in

the Eastern District of Wisconsin against Louisiana officials

under 42 U.S.C. § 1983 for repeated arrests in that district

and failure to forward extradition papers. Maney at 764-66.

As residents of Baton Rouge, Louisiana, all defendants

moved to dismiss for improper venue. /d. at 764. In overrul-

ing the motion, the district court reasoned that § 1983

claims should be read against the background of tort law

and as such, the claim arises where the injury occurs. /d.

766-67. Furthermore, the ccurt recognized that many of the

operative facts had occurred at the location of arrest. Jd. at

767. As in Maney, Petitioner's cause of action should be

held to arise in the districts of his arrest.

2b. Finally, Petitioner urges that if the Fifth Circuit opin-

ion is correct in holding that venue is proper only in Ala-

bama, a form of “venue gap” is created as to him and

victims like him. Petitioner’s cause of action arises out of

repeated unlawful arrests and attempts to extradite him to

stand trial. Pragmaticaliy, if he is required to pursue his

cause of action in Alabama, he will be put to a difficult

8

choice—either submit himself to Alabama jurisdiction and

authorities for arrest or allow his claim to go unresolved.

The result is both unjust and a threat to our liberties. The

purposes behind the enactment of § 1983 cannot be fulfilled

when a state is allowed to reach out beyond its borders into

a sister state and cause direct injury to the resident of that

state and, at the same time, prevent a remedy through

threats of prosecution and incarceration. Such a “venue

gap” is certainly as serious as any Congress sought to avoid

when it amended § 1391(b) to allow venue in the district

where the cause of action arose.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ize. (Reh

Bit Bovp, Attorney (/ a

December 1987

A-1

APPENDIX A

Opinion of the United States Court of Appeals

For the Fifth Circuit

No. 86-2694

Entered: September 11, 1987

Before REAVLEY, RANDALL and JOLLY, Circuit Judges.

Reavley, Circuit Judge:*

Clifford Sinclair appeals the dismissal of his suit against

officials of the State of Alabama and Montgomery County,

Alabama, in which he alleged bad faith prosecutions in vio-

lation of 42 U.S.C. § 1983. Sinclair’s sole contention on

appeal is that the court abused its discretion by failing to

retain jurisdiction of this case in the Eastern District of

Texas. We affirm.

Sinclair's petition states that from May 1978 to December

1985 appellees engaged in a conspiracy to violate his civil

rights by repeatedly seeking his extradition from Texas to

Alabama and by causing him to be unlawfully arrested. A

24-count Alabama indictment alleged that Sinclair commit-

ted theft by pretense against several Alabama victims.

Sinclair asserts that he conducted a legitimate business in

Texas assisting individuals to prepare loan applications and

that he had a local representative in Alabama whose job was

to solicit customers, but who actually defrauded them.

Appellees caused Sinclair to be arrested in Texas a number

of times, and made four extradition attempts. On two occa-

sions the Governor of Texas held a hearing on Alabama’s

request, but denied extradition. Even after this, Sinclair was

again arrested at Alabama’s request, but was released on

bail.

* Local Rule 47.5 provides: “The publication of opinions that have no

precedential value and merely decide particular cases on the basis of well-

settled principles of law imposes needless expenses on the public and bur-

dens on the legal profession.” Pursuant to that Rule, the court has

determined that this opinion should not be published.

A-2

Sinclair filed his section 1983 suit in federal district court

for the Eastern District of Texas. The appellees’ response

was a motion to dismiss for improper venue. The court ini-

tially transferred the case to the Middle District of Ala-

bama. Sinclair, however, contended that dismissal is more

appropriate than transfer, and the court granted his motion

for dismissal.

The general venue statute states:

§ 1391. Venue generally

(a) A civil action wherein jurisdiction is founded only

on diversity of citizenship may, except as otherwise pro-

vided by law, be brought only in the judicial district

where all plantiffs or all defendants reside, or in which

the claim arose.

(b) A civil action wherein jurisdiction is not founded

solely on diversity of citizenship may be brought only in

the judicial district where all defendants reside, or in

which the claim arose, except as otherwise provided by

law.

28 U.S.C. § 1391. The instant case consists of a Texas plain-

tiff bringing a federal claim against Alabama defendants.

_Federal jurisdiction is founded both on diversity of citizen-

ship and federal question jurisdiction. Plainly, therefore,

section 1391(b) applies, and Sinclair may bring suit only

where defendants reside or where the claim arose.

Sinclair does not dispute the fact that all the defendants

reside in Alabama. He asserts, however, that the claim arose

in part in the Eastern District of Texas, on the ground that

the initial 1978 arrest occurred there. Sinclair cites Maney v.

Ratcliff, 399 F.Supp. 760 (E.D. Wis. 1975), in which a Wis-

consin plaintiff brought a section 1983 action against vari-

ous public officials of Baton Rouge, Louisiana. Although all

of defendants’ acts occurred in Louisiana, plaintiffs arrests

and detentions occurred in Wisconsin, and the court held

that venue was proper there. The court held that, in a sec-

tion 1983 claim, like a tort action, the rule is “that the claim

or cause of action arises where the injury occurs.” /d. at 767.

A-3

While Ratcliff is indeed apposite and supportive of Sin-

clair’s position, we believe that it was effectively overruled

by the Supreme Court four years after it was issued. In

Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct.

2710, 51 L.Ed.2d 464 (1979), the Court discussed the mean-

ing of the words “where the claim arose” as they appear in

section 1391. At issue in Leroy was whether venue was

proper in the Northern District of Texas in a suit challeng-

ing the constitutionality of Idaho’s statutory restrictions on

purchasers of stock. The alleged harm to the prospective

Texas purchasers occurred in Texas, but the actions of the

defendants occurred in Idaho. Construing “the plain lan-

guage of § 1391(b),” the Court stated: “it is absolutely clear

that Congress did not intend to provide for venue at the.

residence of the plaintiff or to give that party an unfettered

choice among a host of different districts. Rather, it

restricted venue either to the residence of the defendants or

to ‘a place which may be more convenient to the litigants’ —

i.e., both of them — ‘or to the witnesses who are to testify in

the case.’ ” Jd. at 185, 99 S.Ct. at 2717 (citations omitted). In

the instant case, convenience favors the Alabama location,

since defendants and witnesses reside there. Section 1391(b)

as interpreted by Leroy clearly yields the result that venue

in this case is proper only in Alabama.

Moreover, Sinclair’s effort to distinguish Leroy is uncon-

vincing. He of course is correct that the facts are distin-

guishable, since that was a securities case and this is a civil

rights case. The facts relevant to a venue determination

nonetheless are similar: actions by government officials

within one state have an alleged impact on a plaintiff in

another state, a proper determination of the merits of the

case requires construction of laws of the defendants’ state,

and the bulk of the evidence and witnesses are located in

defendants’ state. See id. at 185-86, 99 S.Ct. at 2717-18.

Appellant points our attention to the distinguishing fact

that in Leroy, but not here, allowing venue in plaintiff's

state would, be parity of reasoning, mandate allowing venue

“in almost every district in the country.” /d. at 186, 99 S.Ct.

at 2718. Stock purchasers reside everywhere, but Sinclair

has been arrested only in Texas. While we might agree that

A-4

this is a distinguishing fact, it was not the chief ground for -

the Supreme Court’s opinion. As the Court emphasized,

reading section 1391(b) to allow venue in the place of injury

“is inconsistent with the underlying purpose of the provi-

sion, for it would leave the venue decision entirely in the

hands of plaintiffs, rather than making it ‘primarily a mat-

ter of convenience of litigants and witnesses.’ ” Jd. (citation

omitted). The relevant facts in the instant action are suffi-

ciently similar to those in Leroy that the legal principles

guiding a venue determination must be the same.

AFFIRMED.

B-1

APPENDIX B

1. Order of the U.S. District Court for the

Eastern District of Texas

MARSHALL DIVISION

No. M-86-10-CA

Entered: May 16, 1986

ORDER

Before the Court is Defendants’ motion to dismiss and

Plaintiff's response. Defendants seek dismissal of this

action pursuant to F.R.C.P. 12(b) based upon 1) Insuffi-

ciency of process and service of process, 2) lack of personal

jurisdiction, 3) improper venue, and 4) failure to state a

claim upon which relief can be granted.

After hearing and a review of the complaint, motion, and

response, the Court concludes that all of the relevant

actions complained of occurred in the Middle District of

Alabama and it is there that venue is proper. 28 U.S.C.

1404(A). Therefore, the Court ORDERS that the above-cap-

tioned case be transferred to the United States District

Court for the Middle District of Alabama, Northern Divi-

sion. As for Defendants’ other grounds for dismissal, the

Court is of the opinion these matters should await determi-

nation by the Middle District.

SIGNED AND ENTERED this 16th day of May, 1986.

SIGNED

ROBERT M. PARKER

United States District Judge

B-2

2. Order of the U.S. District Court for the

Eastern District of Texas

MARSHALL DIVISION

No. M-86-10-CA

Entered: July 29, 1986

ORDER

Before the Court is Plaintiff's Motion for reconsideration

of the Order of the Court of May 16, 1986, transferring this

case to the Middle District of Alabama, Northern Division.

The Court finds that Plaintiff's Motion is well founded and

sets aside the May 16th Order and now ORDERS that this

case be DISMISSED.

SIGNED AND ENTERED this 29th day of July, 1986.

SIGNED

ROBER® M. PARKER

United States District Judge

C-1

APPENDIX C

Judgment of the United States Court of Appeals

for the Fifth Circuit

No. 86-2694

D.C. Docket No. M86-10CA

Entered: September 11, 1987

CLIFFORD Ray SINCLAIR,

Plaintiff-Appellant,

versus

MONTGOMERY COUNTY, ALABAMA, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

Before REAVLEY, RANDALL AND JOLLY,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

and was taken under submission on briefs on file.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

District Court in this cause is affirmed.

SEPTEMBER 11, 1987

ISSUED AS MANDATE: October 6, 1987.