869 F.2d 1496
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Alvin R. CLARK, Plaintiff-Appellant,
STATE OF CALIFORNIA, et al., Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 9, 1989.
Decided Feb. 21, 1989.
Before SCHROEDER, POOLE, and NELSON, Circuit Judges.
Alvin R. Clark appeals pro se the district court's order dismissing for improper venue his 42 U.S.C. Sec. 1983 action against the State of California, Governor Deukmejian, and various state agencies. Clark contends that because the statute of limitations bars him from refiling the action in California, the interest of justice required the Oregon court to transfer the action to California, where venue would have been proper, rather than to dismiss the case.
On January 9, 1986, Clark filed this pro se 42 U.S.C. Sec. 1983 complaint in Oregon, alleging that in 1974 the State of California, Governor Deukmejian, and three state agencies violated his civil rights by revoking his teaching credentials without holding a "judicial tribunal," giving him adequate notice, affording him the right to an attorney, or allowing him to confront witnesses against him.
The defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that the eleventh amendment barred the complaint and that, under 28 U.S.C. Sec. 1391(b), venue in Oregon was not proper because none of the defendants resided in Oregon and the cause of action did not arise there. The district court reached only the venue issue, holding that venue was not proper. The magistrate's report adopted by the district court expressly rejected transfer as an option because Clark had not indicated he wished to litigate this case in California.
On appeal, Clark agrees with the government that venue in Oregon was not proper under 28 U.S.C. Sec. 1391(b). He now argues, however, that "the interest of justice" required the Oregon court to transfer the case to the Eastern District of California, where venue would have been proper, because the statute of limitations now bars him from refiling the action in California. He relies upon 28 U.S.C. Sec. 1406(a), which states that a case filed with improper venue may be transferred rather than dismissed if in the interest of justice. Transfer has been allowed when a claim was otherwise time barred. Burnett v. New York Cent. R.R., 380 U.S. 424, 430 & n. 7 (1965).
We do not agree, however, that the interest of justice requires such a transfer at this stage of this case. Clark was notified by the magistrate's findings that his case was being dismissed for improper venue, that the proper location for his suit was the Eastern District of California, and that transfer was possible. He chose instead to appeal the Oregon district court's venue dismissal to this court.
Moreover, the complaint does not set forth any cause of action on which relief can be granted. Clark's first two claims seek money damages from the state and various state agencies. The eleventh amendment specifically bars such claims. See Edelman v. Jordan, 415 U.S. 652, 678 (1974); Goodisman v. Little, 724 F.2d 818, 820 (9th Cir.1984). Although the eleventh amendment does not preclude suits against officials in their individual capacity, the complaint caption names Governor Deukmejian who was not in office at the time of the alleged wrongdoing and whom Clark has since agreed to strike from the complaint. Although the body of the complaint names certain state officials who were in office at the time Clark's credentials were revoked in 1974, all would have at least qualified immunity and Clark has not stated any facts that would deprive these officials of immunity.
Clark's third cause of action seeks the reinstatement of his teaching credentials. This action is not addressed to the appropriate state officers who could provide such relief. More important, the complaint does not allege, and appellant has never indicated that he remains at the present time otherwise qualified for the teaching credentials revoked in 1974. Even if appellant could show that he was denied due process in 1974, the licensing commission would not thereby be required to issue him teaching credentials.