Raymond Damon Smith v. U.S. Dept. of

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2596
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Raymond Damon Smith, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
U.S. Department of Justice; Drug *
Enforcement Administration; John * [UNPUBLISHED]
Does, sued as Does 2-99; Joseph *
Walbran; Thomas Heffelfinger; *
John Ashcroft, *
*
Appellees. *
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Submitted: February 7, 2007
Filed: March 28, 2007
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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Raymond Smith appeals the district court’s dismissal without prejudice of his
Freedom of Information Act (FOIA) claim. On appeal, Smith challenges the district
court’s decision to dismiss rather than transfer his case. See 28 U.S.C. § 1406(a)
(when case is filed in improper venue, district court “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”).
When Smith filed his December 2003 complaint, he was incarcerated in the
Sherburne County Jail in Elk River, Minnesota. The complaint stated that Smith was
a citizen of California, but provided no other information as to Smith’s residency.
Smith later notified the district court that he had been transferred to a federal
correctional facility in Adelanto, California, but again offered no details as to his
permanent residency. The magistrate judge concluded that dismissal rather than
transfer was appropriate because the magistrate judge was unable to discern Smith’s
district of residence, the record did not reveal the location of the documents at issue,
and the court did not wish unilaterally to impose the District of Columbia as a venue
upon Smith. See 5 U.S.C. § 552(a)(4)(B) (venue is proper for FOIA claim in district
where claimant resides, in district where agency records are situated, or in District of
Columbia). In his objections to the magistrate judge’s report, Smith provided a street
address in Los Angeles, California, as his permanent residence address and requested
that the case be transferred to the Central District of California. The district court
summarily adopted the magistrate judge’s report and dismissed the action without
prejudice.
We find it troubling that the district court summarily adopted the
recommendation to dismiss: the recommendation was based primarily on an inability
to determine Smith’s residence or desired venue for transfer, but Smith then provided
in his objections that very information. We therefore remand for the district court to
determine whether transfer to the Central District of California is warranted, given that
the necessary information is now in the record, and that Smith, as a pro se litigant,
made a simple mistake in filing in an improper venue. See Kerobo v. Sw. Clean
Fuels, Corp., 285 F.3d 531, 533 (6th Cir. 2002) (abuse-of-discretion standard of
review).
Accordingly, we reverse and remand for further proceedings.
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