Allen v. Don Diva Mag - Ent
Filing
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MEMORANDUM AND ORDER: The Court grants Plaintiffs request to proceed informa pauperis pursuant to 28 U.S.C. § 1915(a) solely for the purpose of this order. The Court finds that it lacks subject matter jurisdiction over Plaintiff's complai nt. Fed. R. Civ. P. 12(h)(3). However, Plaintiff is granted leave to file an amended complaint within 30 days from the entry of this Order that includes a basis for this Court's subject matter jurisdiction, see Order for additional details. So Ordered by Judge William F. Kuntz, II on 12/10/2015. (c/m to pro se) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RUSSELL ALLEN,
Plaintiff,
MEMORANDUM
AND ORDER
15-CV-6331 (WFK)(CLP)
- v. -
DON DIVA MAG-ENT,
Defendant.
~~~~~~~~~~~~~~~~~~·x
WILLIAM F. KUNTZ, II, United States District Judge:
On November 2, 2015, prose Plaintiff Russell Allen ("Allen"), who was convicted and
sentenced in this Court, United States v. Allen, 04-CR-966 (FB), but is incarcerated pursuant to
that sentence in Alabama, filed this libel action against defendant magazine located in New York
alleging a 2007 article defamed him causing serious ramifications for him in prison. Complaint
at 2. He seeks damages. Complaint at 4. The Court grants Plaintiffs request to proceed informa
pauperis pursuant to 28 U.S.C. § 1915(a) solely for the purpose of this order. For the reasons
discussed below, Plaintiff is granted 30 days leave to file an amended complaint.
BACKGROUND
The following facts are drawn from Plaintiffs complaint and its attachments, the
allegations of which are assumed to be true for purposes of this Memorandum and Order. In
2009, Allen was sentenced in this court by the Honorable Frederic Block to a thirty year term for
racketeering; he is currently incarcerated at the Federal Correctional Institution Talladega, in
Talladega, Alabama. He alleges that on September I, 2007, defendant magazine, Don Diva,
printed an article in which Plaintiff was wrongly named as a "rat" for having testified for the
prosecution against Kenneth McGriff, a/k/a, Supreme, "one of the most feared drug lords," in the
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criminal case in this Court in which they were both indicted. Don Diva published a retraction in
2009, but this was after the magazine which, according to Plaintiff, is "a popular read," was
banned from federal prisons around 2008 because of it "reputation for exposing snitches."
Complaint at 2. He states that although the magazine is no longer available in federal facilities,
defendant is still selling the issue of the magazine with the article that defames him. Plaintiff
alleges that he has suffered numerous serious problems over the last eight years because of the
2007 article and its inaccessible retraction including (1) months in solitary confinement to secure
him from death threats from other inmates; (2) loss of financial support from family and friends;
(3) loss of good time credits for "defending himself from attacks over the article labelling him a
rat" resulting in a longer prison term; (4) alienation from family and friends who believe the
article. He states that in 2008, he hired a lawyer to file this libel action in New York state court
who retired without completing Plaintiff's case. ECF No. 1 at 24. Plaintiff seeks to recover
damages in this Court for defendant's libel.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an informa pauperis
action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." However, a court must construe a prose litigant's pleadings liberally. See
Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir. 201 O); Sealed Plaintiff v. Sealed Defendant# 1,
537 F.3d 185, 191-93 (2d Cir. 2008).
A plaintiff, even if proceeding pro se, must establish that the court has subject matter
jurisdiction over the action. Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007); Ally v.
Sukkar, 128 F. App'x 194, 195 (2d Cir. 2005) ("Although we construe a prose plaintiff's
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complaint liberally, a plaintiff attempting to bring a case in federal court must still comply with
the relevant rules of procedural and substantive law, including establishing that the court has
subject matter jurisdiction over the action.") (citations omitted).
Federal courts are courts of limited jurisdiction and may not preside over cases absent
subject matter jurisdiction. Exxon Mobil Corp. v. Allapattah Sers., Inc., 545 U.S. 546, 552
(2005) (noting that plaintiff has the burden of proving by a preponderance of the evidence that
subject matter exists); Frontera Res. Azer. Corp. v. State Oil Co. of Azer. Rep., 582 F.3d 393,
397 (2d Cir. 2009). The requirement of subject matter jurisdiction cannot be waived, United
States v. Cotton, 535 U.S. 625, 630 (2002), and its absence may be raised at any time by a party
or by the court sua sponte. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434(2011)
("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of
their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties
either overlook or elect not to press."). Where a court lacks subject matter jurisdiction, dismissal
is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); see also Fed. R. Civ. P.
12(h)(3).
DISCUSSION
The subject matter jurisdiction of the federal courts is limited to only two circumstances:
when a "federal question" is presented, 28 U.S.C. § 1331, or when the plaintiff and defendant are
of diverse citizenship and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332.
The court does not have subject matter jurisdiction over this complaint under either of these
provisions.
A federal court has subject matter jurisdiction when a complaint presents a federal
question. 28 U.S.C. § 1331. "The presence or absence of federal-question jurisdiction is
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governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists
only when a federal question is presented on the face of the plaintiffs properly pleaded
complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392(1987). The facts alleged by Plaintiff
in this complaint concerns a state law defamation claim, it does not suggest a violation of the
United States Constitution or any federal laws by the defendant. See Fisher v. Silverstein, 99CV-9657, 2004 WL 1933610, at *5 n. 60 (S.D.N.Y. Aug. 30, 2004) (Scheindlin, J.) ("The
general allegation of the existence of a Federal question is ineffective unless the matters
constituting the claim for relief as set forth in the complaint raise a Federal question.") (citation
omitted). Given the absence of a federal claim, the Court lacks federal question jurisdiction to
adjudicate this case.
Nor does this Court have diversity jurisdiction over this action. A federal court has
subject matter jurisdiction over a state law claim ifthe plaintiff and defendant(s) are citizens of
different states and the amount in controversy exceeds $75,000. 28 U.S.C. §1332. On its face,
the complaint does not adequately allege diversity of citizenship. A prisoner does not acquire a
new domicile when he is incarcerated in a state different from his previous domicile; the prisoner
retains his pre-incarceration domicile. Urena v. Wolfson, 09-CV-1107, 2010 WL 5057208, at
*13 (E.D .N. Y. Dec. 6, 2010) (Matsumoto, J.) ("[A] prisoner's domicile is determined by his preincarceration domicile and does not change if the prisoner is transferred to a facility outside of
that state.").
However, the presumption that a prisoner retains his pre-incarceration domicile is
rebuttable. Housand v. Heiman, 594 F.2d 923, 925 (2d Cir. 1979) (allowing a prisoner to try to
show that he has satisfied the prerequisites for establishing domicile in his place of
incarceration); Poucher v. lntercounty Appliance Corp., 336 F. Supp. 2d 251, 253 (E.D.N. Y.
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2004) ("[A]lthough a prisoner is presumed to retain his former domicile, he can attempt to
demonstrate that he has established a new domicile in his state of incarceration."). This
presumption is rebutted only when a prisoner can show "'truly exceptional circumstances which
would justify a finding that he has acquired a new domicile at the place of his incarceration.'"
Braten v. Kaplan, 07-CV-8498, 2009 WL 614657, *4 (S.D.N.Y. Mar. 10, 2009) (Baer, J.)
(quoting Jones v. Radican, 552 F .2d 249, 251 (8th Cir. 1977)). In order for a prisoner to
establish diversity jurisdiction based on the theory that his place of incarceration is his domicile,
"the complaint must allege facts sufficient to raise a substantial question about the prisoner's
intention to acquire a new domicile." Jones, 552 F.2d at 251.
Here, Plaintiff "does not allege diversity of citizenship nor does he make clear in his
pleadings on what facts a diversity claim could be based." Housand, 594 F.2d at 925. Plaintiff
has provided no facts concerning his pre-incarceration domicile, which appears to be New York,
nor does he allege intent to be domiciled in Alabama, the state of incarceration. Without
allegations of Plaintiffs domicile, the Court cannot find diversity jurisdiction over this action.
Therefore, the Court does not have diversity jurisdiction over Plaintiffs complaint against Don
Diva, which is identified in the complaint as a business located in New York.
Moreover, Plaintiffs claim fails to satisfy the amount in controversy requirement. Lupe
v. Human Affairs Int'/, Inc., 28 F.3d 269, 273 (2d Cir. 1994) ("[T]he party asserting diversity
jurisdiction in federal court has the burden of establishing the existence of the jurisdictional
amount in controversy."); TongkookAm., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d
Cir. 1994) ("A party invoking the jurisdiction of the federal court has the burden of proving that
it appears to a 'reasonable probability' that the claim is in excess of the statutory jurisdictional
amount.").
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CONCLUSION
For the reasons explained above, the Court finds that it lacks subject matter jurisdiction
over Plaintiff's complaint. Fed. R. Civ. P. 12(h)(3). However, Plaintiff is granted leave to file
an amended complaint within 30 days from the entry of this Order that includes a basis for this
Court's subject matter jurisdiction. Plaintiff is advised that any amended complaint he files will
completely replace the original complaint. The amended complaint must be captioned
"Amended Complaint," and shall bear the same docket number as this Order.
All further proceedings shall be stayed until the expiration of the time granted to file an
amended complaint or until an amended complaint is filed, whichever occurs first. If Plaintiff
fails to file an amended complaint, judgment dismissing this action without prejudice to its
refiling in a court of appropriate jurisdiction shall be entered. The Court certifies pursuant to 28
U.S.C. § ! 915(a)(3) that any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
s/William F. Kuntz, II
William F. Kuntz,
United States District J dge
Dated: Brooklyn, New York
December E_, 2015
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