Dionne v. Shulkin et al

Filing 19

///MEMORANDUM AND ORDER RE 15 Motion to Dismiss. For the reasons set forth in this Memorandum and Order, defendants' motion to dismiss (Doc. No. 15) is granted to the extent that Dionne's claims against Brown and P ons are dismissed without prejudice for lack of venue. Dionne remains free to refile his claims against Brown and Pons in another jurisdiction with venue. The only claim that remains is Dionne's Freedom of Information claim against the VA. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Dionne
v.

Case No. 17-cv-142-PB
Opinion No. 2017 DNH 241

United States Department of
Veterans Affairs, et al.

MEMOANDUM AND ORDER
Paul Dionne is a New Hampshire resident who operates a
website known as “Veterans News Today.”

Dionne hoped to publish

an expose regarding the misuse of property located in Los
Angeles, California by the Veterans Administration (“VA”).

He

alleges that two VA employees, Ann Brown and Christine Pons
violated his First Amendment rights by initially denying him
access to the property to make video recordings.
Dionne filed a complaint in this court on April 14, 2017
naming Brown, Pons, and the Secretary of Veterans Affairs, David
Shulkin as defendants.

Dionne’s claims against Shulkin were

later dismissed and the court construed the complaint to also
assert a Freedom of Information Act claim against the VA.

Thus,

the claims before the court are Dionne’s First Amendment claims

against Brown and Pons and his Freedom of Information Act claim
against the VA.
Defendants have filed a motion to dismiss arguing that the
court lacks both personal jurisdiction and venue over Dionne’s
claims against Brown and Pons.

For the reasons set forth below,

I dismiss those claims without prejudice.

I.

ANALYSIS

The general venue statute, 28 U.S.C. § 1391(b), provides
that venue exists 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 the 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.”
Applying § 1391(b) to the present facts, it is self-evident
that I do not have venue over Dionne’s claims against Brown and
Pons under any of the general venue statute’s three subsections.
Section 1391(b)(1) is inapplicable because Brown and Pons reside

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in California, § 1391(b)(2) does not apply because Dionne’s
claims are based on events or omissions that occurred in
California, and § 1391(b)(3) cannot serve as a basis for venue
because venue exists in the Central District of California,
Western District, where a substantial part of the relevant
events occurred.
28 U.S.C. § 1391(e)(1) authorizes a plaintiff to sue an
officer or employee of the United States for actions taken in an
official capacity in the district where the plaintiff resides,
but this provision does not apply here because Dionne has sued
the defendants for damages in their individual capacities.

See

Stafford v. Briggs, 444 U.S. 527, 544-545 (1980) (holding that §
1391(e) does not apply to claims against government employees
who are sued in an individual capacity).1

II.

CONCLUSION

For the reasons set forth in this Memorandum and Order,
defendants’ motion to dismiss (Doc. No. 15) is granted to the
extent that Dionne’s claims against Brown and Pons are dismissed

Although Dionne also asked the court for an injunction
requiring Brown and Pons to give him access to the property on
either April 17 or 19, it appears that his request for
injunctive relief is moot because defendants voluntarily gave
Dionne access to the property on April 17. Accordingly, venue
cannot be based on Dionne’s claim for injunctive relief. See
Cameron v. Thornburg, 983 F.2d 253, 256-57 (D.C. Cir. 1993).
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without prejudice for lack of venue.

Dionne remains free to

refile his claims against Brown and Pons in another jurisdiction
with venue.

The only claim that remains is Dionne’s Freedom of

Information claim against the VA.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
November 21, 2017
cc:

Paul Dionne, Esq.
Terry Ollila, AUSA

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