United States District Court, W.D. Louisiana, Alexandria Division
ORDER OF TRANSFER
H.L. Perez-Montes United States Magistrate Judge
the Court is a Complaint (Doc. 1) filed under Bivens v.
Six Unknown Agents of the Federal Bureau of
Narcotics or 28 U.S.C. § 2241, and several
motions (Docs. 3, 4, 5) filed by pro se Plaintiff Vaughn
Johnson (“Johnson”) (#A096335944). Johnson filed
suit in the United States District Court for the Southern
District of Florida, which transferred the case to this
Court. (Doc. 8). At the time of filing, Johnson was an
immigration detainee in the custody of the Department of
Homeland Security/U.S. Immigration and Customs Enforcement
(“DHS/ICE”) incarcerated at the Etowah County
Detention Center in Gadsden, Alabama. (Doc. 1).
§ 2241 jurisdiction is lacking and venue under
Bivens is improper in this Court, Johnson's case
should be TRANSFERRED to the United States District Court for
the Northern District of Alabama.
was convicted of making a false statement on a passport
application in violation of 18 U.S.C. § 1542. (No.
6:10-cr-238, M.D. Fla.). While on supervised release, Johnson
again made a false statement on a passport application. (No.
6:15-cr-003, M.D. Fla.). Johnson was also convicted in the
United States Virgin Islands of wire fraud. Johnson v.
Immigration & Customs Enf't, 13-cv-080, 2014 WL
1912355 (S.D. Ga. May 12, 2014).
was ordered removed from the United States. When he filed his
Complaint in the Southern District of Florida, Johnson was in
DHS/ICE custody at the Etowah County Detention Center in
Gadsden, Alabama. (Doc. 1, pp. 76-77). Some time before April
26, 2019, Johnson was transferred from Alabama to Louisiana
and removed from the United States. (1:19-cv-152, Doc. 22).
On May 23, 2019, the Southern District of Florida issued an
Order of Transfer to this Court. (Doc. 8). The transfer was
premised on an understanding that Johnson was incarcerated in
Louisiana. (Doc. 8).
Law and Analysis
labels his Complaint as one under Bivens, but he
also challenges his custody and removal. Jurisdiction over a
§ 2241 petition is determined at the time an action is
filed. See Lee v. Wetzel, 244 F.3d 370, 373-375 (5th
Cir. 2001). Jurisdiction over a habeas petition is not
destroyed by the transfer of the petitioner and accompanying
custodial change. See Griffin v. Ebbert, 751 F.3d
288, 290 (5th Cir. 2014); 28 U.S.C. §2241(a); see
also Ex parte Mitsuye Endo, 323 U.S. 283, 306-07 (1944)
(“[P]ower ‘to grant writs of habeas corpus for
the purpose of an inquiry into the cause of restraint of
liberty'… may be in no way impaired or defeated by
the removal of the prisoner from the territorial jurisdiction
of the District Court.”); Rumsfeld v. Padilla,
542 U.S. 426, 441 (2004) (when the Government moves a habeas
petitioner after she properly files a petition naming her
immediate custodian, the District Court retains jurisdiction
and may direct the writ to any respondent within its
jurisdiction who has legal authority to effectuate the
prisoner's release, citing Endo); Prevatte
v. Gunja, 167 Fed.Appx. 39, 42 (10th Cir. 2006),
cert. den., 549 U.S. 1118 (2007); Mujahid v.
Daniels, 413 F.3d 991, 994 (9th Cir. 2005), cert.
den., 547 U.S. 1149 (2006); Lee, 244 F.3d at
375 n. 5; Santillanes v. United States Parole
Commission, 754 F.2d 887, 888 (10th Cir. 1985);
Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990);
Sweat v. White, 829 F.2d 1121, *1 (4th Cir. 1987);
Weeks v. Wyrick, 638 F.2d 690, 692 (8th Cir. 1981);
McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir.
1978), cert. den., 439 U.S. 1077 (1979); Bishop
v. Medical Superintendent of Ionia State Hospital, 377
F.2d 467, 468 (6th Cir. 1967); see also Linares v.
Department of Homeland Security, 2015 WL 1138508, *1 at
n.1 (N.D. Ala. 2015); Olson v. English, 2015 WL
151022 (N.D. Fla. 2015); Dotson v. U.S., 2013 WL
1786568, *1 at n. 1 (S.D. Ga. 2013), report and
recommendation adopted, 2013 WL 1786559 (S.D. Ga. 2013);
Garcia-Flores v. U.S., 2012 WL 6045916, *6 (S.D.
Ala. 2012), report and recommendation adopted, 2012
WL 6048938 (S.D. Ala. 2012); Elcock v. Streiff, 554
F.Supp.2d 1279, 1282 (S.D. Ala. 2008); Saho v.
Streiff, 2008 WL 2622823, *3 (S.D. Ala. 2008); Felix
v. Streiff, 2008 WL 7117651, *1 (S.D. Ala. 2008);
Jian Bin Tang v. Gonzales, 2006 WL 3628061, *1 (N.D.
Fla. 2006) Hanna v. Pettiford, 2006 WL 2223996, *2
(N.D. Fla. 2006).
Eleventh Circuit has agreed with the other circuits. See
Diaz v. U.S., 580 Fed.Appx. 716, 717 (11th Cir. 2014)
(where Diaz was incarcerated in Kentucky when he filed his
§ 2241 petition in the Southern District of Florida, and
was transferred to South Carolina, the Florida court lacked
jurisdiction to review his petition); U.S. v. Means,
572 Fed.Appx. 793 (11th Cir. 2014) (where Means was
incarcerated in Kentucky when he filed his § 2241
petition in Alabama, the Alabama court lacked jurisdiction to
consider the petition); U.S. v. Tubby, 546 Fed.Appx.
869, 874 n. 6 (11th Cir. 2013) (Tubby was incarcerated in
Texas when he filed his § 2241 petition in Florida, so
the Florida court lacked jurisdiction to review it);
Garcia v. Warden, 470 Fed.Appx. 735, 736 (11th Cir.
2012) (Garcia was incarcerated in the Southern District of
Florida when he filed his § 2241 petition there, but the
petition was incorrectly construed as a § 2255 petition
and transferred to the Northern District of Florida, which
did not have jurisdiction over Garcia's § 2241
petition); Westine v. Scott, 356 Fed.Appx. 254, 255
(11th Cir. 2009) (Westine was required to file his §
2241 petition in the juridical district where he was
incarcerated); U.S. v. Nickson, 521 Fed.Appx. 867,
869 (11th Cir. 2013), cert. den., 135 S.Ct. 386 (U.S. 2014)
(“A § 2241 petition must be brought in the
district in which the inmate is incarcerated.”).
venue for a Bivens claim is determined by 28 U.S.C.
§ 1391(b), which provides: “A civil action wherein
jurisdiction is not founded solely on diversity of
citizenship may . . . be brought only in (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.” Stafford v.
Briggs, 444 U.S. 527, 544 (1980).
named are DHS/ICE officials and Etowah County Sheriff
Jonathan Horton. None of the defendants are located in this
judicial district. Moreover, Johnson was not in DHS/ICE
custody in Louisiana at the time of filing or at the time of
whether construed under § 2241 or Bivens,
jurisdiction and venue are not proper in this Court. Because
Johnson was in custody in the United States District Court
for the Northern District of Alabama at the time of filing;
and Sheriff Horton is located in that judicial district; and
noting that Johnson has a current and nearly identical
Bivens action pending in that judicial district
(4:18-cv-2114) against the same Defendants, Johnson's
case should be TRANSFERRED to the United States District
Court for the Northern District of Alabama.