Banzhof v. Sessions et al

Filing 3

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/10/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT BANZHOF,

:
CIVIL ACTION NO. 3:17-1797

Plaintiff

:
(JUDGE MANNION)

v.

:

JEFFERSON B. SESSIONS, III,
Attorney General of the
United States, et al.,
Defendants

:
:
:

MEMORANDUM
On October 4, 2017, the plaintiff, a citizen of Pennsylvania residing in
Pequea, Lancaster County, Pennsylvania, filed the instant action against
Jefferson B. Sessions, III, Attorney General of the United States; Thomas E.
Brandon, Acting Director of the Bureau of Alcohol, Tobacco, Firearms and
Explosives; and Charles A. Hamilton, Acting Sheriff of Lancaster County.
(Doc. 1). In his filing, the plaintiff alleges that he “intends to purchase and
possess a firearm for self-defense within his own home and for other lawful
purposes, but is prevented from doing so only by Defendants’ enforcement of
[18 U.S.C. §922(g)(1)]”.
Specifically, the plaintiff alleges that “[he] is over the age of 21, is not
under indictment, has never been convicted of a felony or misdemeanor crime
of domestic violence, is not a fugitive from justice, is not an unlawful user of or

addicted to any controlled substance, has not been adjudicated a mental
defective or been committed to a mental institution, has not been discharged
from the Armed Forces under dishonorable conditions, has never renounced
his citizenship, nor has he ever been the subject of a restraining order relating
to an intimate partner 1.”
On September 28, 1973, the plaintiff alleges that he was convicted in the
Lancaster County Court of Common Pleas of one count of 18 Pa.C.S.
§3921(a), Theft by Unlawful Taking or Disposition, a misdemeanor of the first
degree, which is punishable by a maximum term of imprisonment for five
years. See 18 Pa.C.S. §1104(1). The plaintiff alleges that he entered a plea of
guilty and was sentenced to one year of probation. Since that 1973 conviction,
the plaintiff alleges that he has not been arrested or convicted for any other
offense. The plaintiff alleges, however, that he is prohibited from possessing a
firearm under 18 U.S.C. §922(g)(1) and 18 U.S.C. §921(20)(B) because his

1

The court notes that the exhibit attached to the plaintiff’s complaint is a
Weapons or Evidence Receipt from a Protection from Abuse, (“PFA”), case,
wherein a number of weapons are listed as having been confiscated from the
plaintiff. A search of the Lancaster County Court website revealed that PFA
proceedings were brought against the plaintiff and that the plaintiff appeared
at hearings on October 21, 2015, November 24, 2015, and August 9, 2016 in
relation to those proceedings. See Harting v. Banzhof, CI-15-8983. The
outcome of those proceedings is unknown.

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misdemeanor conviction was punishable by imprisonment for a term
exceeding two years. As a result of his misdemeanor conviction, the plaintiff
alleges that he has had several firearms confiscated by defendant Hamilton.
Absent the defendants’ enforcement of §922(g)(1), the plaintiff alleges that he
would not be prohibited under United States law from possessing a firearm
and alleges that he is not prohibited from possessing a firearm under
Pennsylvania State law.
In his complaint, the plaintiff alleges that he desires and intends to
possess firearms for self-defense, but that he has refrained from doing so
because he fears arrest, prosecution, incarceration, and fine under §922(g)(1).
The plaintiff alleges that §922(g)(1) unconstitutionally deprives him of his
Second Amendment right to bear arms. He is therefore seeking declaratory
and injunctive relief which would allow him to possess a firearm and which
would order the return of any firearms seized from him by defendant Hamilton
or, in the alternative, transferring those firearms to his sister, Jeanne Grove.
Upon review, the plaintiff alleges that “[v]enue is proper in this court . . .
as a substantial part of the events and omissions giving rise to the claim
occurred in this judicial district, and the Plaintiff resides in this judicial district.”
The events which give rise to this claim, however, occurred in Lancaster
County. Moreover, the plaintiff resides in Lancaster County. Lancaster County
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is located in the Eastern District of Pennsylvania, not the Middle District of
Pennsylvania.
“A District Court is granted discretion to sua sponte transfer cases by 28
U.S.C. §1404(a), which provides in relevant part that ‘[f]or the convenience of
parties and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have been
brought.’” Wright v. Pa. DOC, 2015 WL 401685, *2 (W.D.Pa. Jan. 28, 2015)
(citations omitted). Section 1406(a) provides “[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.” “Section 1406, . . . , applies where the
original venue is improper and provides for either transfer or dismissal of the
case.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). Since
original venue in the instant case is improper in this court, the court will
transfer this case to the proper venue under § 1406(a).
According to the Third Circuit, §1406(a)’s “transfer provision is designed
to preserve claims that rigid application of dismissal rules may bar.” Lafferty v.
St. Riel, 495 F.3d 72, 79 (3d Cir. 2007) (citing Goldlawr, Inc. v. Heiman, 369
U.S. 463, 465–66, (1962) (Supreme Court stressed that federal district courts
may transfer, as opposed to dismissing, cases that plaintiffs originally
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commenced in an improper forum)). Moreover, Ҥ1406(a) transfers do not
require that prejudice should result from filing an action in an improper forum if
the initial filing was made in good faith.” Id. Additionally, “the filing itself of a
lawsuit, even in an improper forum, shows the proper diligence on the part of
the plaintiff which such statutes of limitation were intended to insure and toll[s]
whatever statutes of limitation would otherwise apply.” Id. (citing Goldlawr, 369
U.S. at 466–67).
Here, the court finds that the interest of justice would best be served by
transferring the instant action to the Eastern District of Pennsylvania where
venue is proper. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 10, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-1797-01.docx

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