Wilcox #223862 v. Kalchert #880354

Filing 4

OPINION AND ORDER TRANSFERRING CASE to the Western District of Michigan. Signed by District Judge Judith E. Levy. (DPer) [Transferred from Michigan Eastern on 11/19/2020.]

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Steven J. Wilcox,
Plaintiff,
v.
Joshua Stephen Kalchert,
Defendant.
________________________________/

Case No. 20-12991
Judith E. Levy
United States District Judge
Mag. Judge Kimberly G. Altman

OPINION AND ORDER TRANSFERRING CASE TO
THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MICHIGAN
Plaintiff Steven J. Wilcox filed this pro se complaint against
Defendant Joshua Stephen Kalchert. (ECF No. 1.) Both Plaintiff and
Defendant are inmates at the Alger Correctional Facility (LMF) in
Munising, Michigan. (Id. at PageID.1.)
I.

Background

From September 2019 to April 2020, Plaintiff and Defendant were
cellmates in the protective custody unit at LMF. (Id. at PageID.2.)
Plaintiff has a “medical condition . . . which severely limits the use of his
right arm,” and Defendant was assigned to be his “handicap aide.” (Id.)

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Plaintiff alleges that on December 31, 2019, Defendant drugged, gagged,
bound, sexually assaulted, forcibly tattooed, and physically assaulted
him. (Id. at PageID.3–4.) He asserts that Defendant again sexually
assaulted him on February 14, 2020, during which Defendant twice
choked Plaintiff until he lost consciousness. (Id. at PageID.5.) Finally,
Plaintiff alleges that Defendant violently sexually assaulted him on
March 13, 2020. (Id. at PageID.6.) He explains that these assaults
resulted in mental and physical trauma. (Id. at PageID.4–6.)
Plaintiff now seeks money damages “in excess of $75,000” for each
of his three counts of “sexual assault/battery/intentional infliction of
emotional distress.” (Id.)
II.

Jurisdiction

“[F]ederal courts are courts of limited jurisdiction.” Home Depot
U. S. A., Inc. v. Jackson, ___ U.S. _____, 139 S. Ct. 1743, 1746 (2019)
(quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375,
377 (1994)), reh’g denied, 140 S. Ct. 17 (2019). “In 28 U.S.C. §§ 1331 and
1332(a), Congress granted federal courts jurisdiction over two general
types of cases: cases that ‘aris[e] under’ federal law, § 1331, and cases in
which the amount in controversy exceeds $ 75,000 and there is diversity
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of citizenship among the parties, § 1332(a). These jurisdictional grants
are known as ‘federal-question jurisdiction’ and ‘diversity jurisdiction,’
respectively.” Id.
Plaintiff alleges this Court has diversity jurisdiction over his claims
(See ECF No. 1, PageID.2.) “Diversity of citizenship . . . exists only when
no plaintiff and no defendant are citizens of the same state.” Curry v.
U.S. Bulk Transp., Inc., 462 F.3d 536, 540 (6th Cir. 2006) (quoting
Jerome–Duncan, Inc. v. Auto–By–Tel, L.L.C., 176 F.3d 904, 907 (6th
Cir.1999)). Citizenship depends on a party’s domicile. Prime Rate
Premium Fin. Corp., Inc. v. Larson, 930 F.3d 759, 765 (6th Cir. 2019). In
order to establish a new domicile, an individual must be physically
present in the state and intend to remain their indefinitely (or lack an
intent to make a home elsewhere). Id. “[T]here is a rebuttable
presumption that a prisoner retains his former domicile after
incarceration.” Spencer v. Stork, 513 F. App’x 557, 558 (6th Cir. 2013)
(citing Stifel v. Hopkins, 477 F.2d 1116, 1124 (6th Cir.1973)). “In diversity
cases, the general rule is that the amount claimed by a plaintiff in his
complaint determines the amount in controversy, unless it appears to a
legal certainty that the claim is for less than the jurisdictional amount.”
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Rosen v. Chrysler Corp., 205 F.3d 918, 920–21 (6th Cir. 2000) (citations
omitted).
Plaintiff alleges that Defendant is “a citizen of the state of
Michigan, residing in Oakland County.” (ECF No. 1, PageID.1.) He also
asserts that he is “a citizen of the State of Tennessee, having been
domiciled there prior to his confinement in a Michigan correctional
facility by force of process.” (Id.) Plaintiff further alleges that Defendant’s
assaults led to both physical and mental trauma and seeks to recover
compensatory and punitive damages “in excess of $75,000.00” on each of
his three claims. (Id. at PageID.4–6.)
Accordingly, Plaintiff appears to have sufficiently pleaded both
elements of diversity jurisdiction.
III. Venue
Venue for a civil action is proper in a judicial district where a
substantial part of the events or omissions giving rise to the claim
occurred. 28 U.S.C. § 1391(b)(2). “For the convenience of parties and
witnesses, in the interest of justice, a [federal] district court may transfer
any civil action to any other district . . . where it [could] have been
brought.” 28 U.S.C. § 1404(a). The Court may transfer a case to another
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federal district court on its own motion. See Carver v. Knox Cty., Tenn.,
887 F.2d 1287, 1291 (6th Cir. 1989) (citing 28 U.S.C. § 1404(a)).
This cause of action arose at LMF in Munising, Michigan where
both Plaintiff and Defendant are currently incarcerated. (See ECF No. 1,
PageID.1–6.) Munising is in Alger County, which lies within the
geographical boundaries of the United States District Court for the
Western District of Michigan. See 28 U.S.C. § 102(b)(2). Plaintiff also
indicates in his filing that he intends to call several corrections officers
as witnesses and will seek various records from LMF. (See ECF No. 1,
PageID.8–9.) The Court therefore finds that transferring this case to the
Western District of Michigan is in the interest of justice and will provide
a more convenient forum for the witnesses and parties.
IV.

Conclusion

Accordingly, the Court orders the Clerk of Court to transfer this
case to the United States District Court for the Western District of
Michigan pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 1404(a).
IT IS SO ORDERED.
Dated: November 17, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 17, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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