Younger v. Fleming

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $63 within twenty-one (21) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is fo r an original proceeding. IT IS HEREBY ORDERED that plaintiff must show cause, no later twenty-one (21) days from the date of this Order, why this action should not be dismissed for lack of jurisdiction. IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action without further proceedings. Signed by District Judge John A. Ross on 11/30/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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LOUIS YOUNGER,
Plaintiff,
v.
LAWRENCE J. FLEMING,
Defendant,

No. 4:16-CV-1559 JAR

MEMORANDUM AND ORDER

Plaintiff, a prisoner, seeks leave to proceed in forma pauperis in this civil action under
state law for breach of contract. Having reviewed plaintiffs financial information, the Court
assesses a partial initial filing fee of $63, which is twenty percent of his average monthly deposit.

See 28 U.S.C. § 1915(b). Additionally, plaintiff must show cause why this action should not be
dismissed for lack of jurisdiction.
Plaintiff is incarcerated at FCI Terre Haute, in Terra Haute, Indiana. On September 12,
1996, plaintiff was convicted in this Court of distribution of methamphetamine. United States v.

Younger, No. 4:96-CR-98 CEJ. The Court sentenced him to life imprisonment. Defendant
represented plaintiff in the case and on appeal, United States v. Younger, No. 97-1024 (8th Cir.).
Plaintiff sues defendant, his former defense attorney, for breach of contract, invoking
diversity jurisdiction. He says he resides in Indiana and defendant resides in Missouri. He
alleges that defendant took money from him to "perfect an appeal" in this Court but did not
provide any services in exchange for the money.

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The Court notes that defendant was disbarred with regard to these and other activities on
October 28, 2014. In re Fleming, No. SC94203 (Mo. bane).

Under Rule 12(h)(3) of the Federal Rules of Civil Procedure, the Court is required to
review new cases and dismiss them if jurisdiction is lacking. "Federal courts are courts of
limited jurisdiction.

The requirement that jurisdiction be established as a threshold matter

springs from the nature and limits of the judicial power of the United States and is inflexible and
without exception." Kessler v. Nat'/ Enterprises, Inc., 347 F.3d 1076, 1081 (8th Cir. 2003)
(quotation marks omitted).
"It has long been held that, for purposes of determining diversity of citizenship, the

controlling consideration is the domicile of the individual.

With respect to the domicile of

prisoners, the traditional rule is that a prisoner does not acquire a new domicile when he is
incarcerated in a different state; instead, he retains the domicile he had prior to his
incarceration." Jones v. Radican, 552 F.2d 249, 250 (8th Cir. 1977) (citations omitted).
The Court takes judicial notice of state courts' public records. See Levy v. Ohl,. 477 F.3d ,
988, 991 (8th Cir. 2007). On December 30, 2015, plaintiff sued defendant for breach of contract
in state court. Younger v. Fleming, No. 15SL-CC04464 (St. Louis County). In his verified
complaint, plaintiff stated he ''was and is a citizen of the State of Missouri, and the United States.
Plaintiff is presently incarcerated in the Federal Bureau of Prisons (BOP), at Terre Haute,
Indiana." On June 17, 2016, the court dismissed the action, without prejudice, for failure to
prosecute. On July 15, 2016, plaintiff moved to set aside the judgment. He attached a second
verified complaint along with the motion. In the second verified complaint, he reasserts that he
"was and is a citizen of the State of Missouri . . ." Id. Plaintiff's motion to set aside remains
pending as of this date.

Plaintiff's state complaint concerns the same transactions and

occurrences that are the basis of the case at hand.

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It appears that diversity jurisdiction does not exist. Plaintiff has sworn twice to the state

court that he is a citizen of the State of Missouri. And the rule regarding diversity jurisdiction
with respect to prisoners presumes that plaintiff is a Missouri citizen. As a result, the Court will
order plaintiff to show cause why this action should not be dismissed for lack of jurisdiction.
Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.

IT IS FURTHER ORDERED that the plaintiff must pay an initial filing fee of $63
within twenty-one (21) days of the date of this Order.

Plaintiff is instructed to make his

remittance payable to "Clerk, United States District Court," and to include upon it: (1) his name;
(2) his prison registration number; (3) the case number; and (4) that the remittance is for an
original proceeding.

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IT IS HEREBY ORDERED that plaintiff must show cause, no later twenty-one (21)
days from the date of this Order, why this action should not be dismissed for lack of jurisdiction.

IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court
will dismiss this action without further proceedings.
Dated this 30th day of November, 2016.

A. ROSS
ED STATES DISTRICT JUDGE

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Prisoners must pay the full amount of the $350 filing fee. After payment of the initial partial
filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding
month's income credited to the prisoner's account. The agency having custody of the prisoner
will deduct the payments and forward them to the Court each time the amount in the account
exceeds $10. 28 U.S.C. § 1915(b)(2).

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