Bryant v. Stone

Filing 42

ORDER respectfully rejecting the 24 Report and Recommendation and recommitting the matter to the Magistrate Judge for an Order authorizing issuance and service of process. IT IS FURTHER ORDERED that the Defendant's 4 21 motions to dismiss are denied without prejudice with leave to refile. Signed by Honorable R. Bryan Harwell on 6/26/2017. (bgoo)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
John A. Bryant, Jr.,

)
)
Plaintiff,
)
)
v.
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)
Taylor B. Stone,
)
)
Defendant.
)
______________________________)

Civil Action No.: 0:16-cv-3927-RBH

ORDER

Plaintiff, proceeding pro se, brings this legal malpractice action against the criminal defense
lawyer who represented Plaintiff on federal drug charges in Virginia. Plaintiff, previously
incarcerated in Oklahoma, is currently incarcerated at FCC Allenwood in White Deer,
Pennsylvania.1
This matter comes before the court with the Report and Recommendation [ECF No. 24] of
Magistrate Judge Paige J. Gossett filed on February 28, 2017.2 The Magistrate Judge recommended
summary dismissal of Plaintiff’s complaint for lack of subject matter jurisdiction based solely on the
issue of diversity jurisdiction and Plaintiff’s domicile. Plaintiff timely filed objections to the
Magistrate Judge’s Report and Recommendation on May 22, 2017.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.

1

This case was filed in the District of South Carolina because Plaintiff was previously incarcerated

at FCI Edgefield in Edgefield, South Carolina when the case was filed.
2

This matter was referred to Magistrate Judge Gossett pursuant to 28 U.S.C. § 636(b) and Local
Civil Rules 73.02(B)(2).

Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R & R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence of
objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Discussion
The Magistrate Judge recommended summary dismissal based on a lack of subject matter
jurisdiction. Specifically, the Magistrate Judge found that federal question jurisdiction under 28
U.S.C. § 1331 was lacking because the Amended Complaint simply alleged a state law legal
malpractice claim. See Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir. 1996). The Magistrate
Judge also found that diversity jurisdiction was lacking under 28 U.S.C. § 1332 based on Plaintiff’s
domicile prior to his incarceration. Defendant resides in Virginia and Plaintiff resided in Virginia
prior to his incarceration. Thus, the Magistrate Judge found there was not diversity of citizenship.
The Magistrate Judge did not question the amount in controversy as Plaintiff seeks $125,000.00 in
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damages. Plaintiff filed objections to the Magistrate Judge’s Report and Recommendation (R&R)
arguing the requirements of diversity jurisdiction are satisfied because Plaintiff intends to acquire a
new domicile in Georgia with his father when he is released from prison.
For diversity jurisdiction purposes, a prisoner’s domicile is presumed to be where he was
domiciled prior to his incarceration. Jones v. Hadican, 552 F.2d 249, 250–51 (8th Cir.1977);
Roberts v. Morchower, 956 F.2d 1163 (4th Cir. 1992) (Table). To rebut the presumption that he or
she retains the pre-incarceration domicile, a prisoner must “show truly exceptional circumstances”
and “introduce more than ‘unsubstantiated declarations.’” Jones, 552 F.2d at 251 (quoting Stifel v.
Hopkins, 477 F.2d 1116, 1126 (6th Cir.1973)). At the pleading stage, the prisoner “must allege
facts sufficient to raise a substantial question about the prisoner's intention to acquire a new
domicile.” Id.; Roberts, 956 F.2d at 1163.
Plaintiff’s Amended Complaint alleges that his residence at the time of his arrest was located
in Virginia but he plans to relocate to Georgia to care for his ill father when he is released.
[Amended Complaint, ECF No. 18-2 at 2-3]. Plaintiff attached a sworn declaration to his objections
in which states that he has changed his citizenship and domicile to Carrollton, Georgia with his
father. [ECF No. 39-2]. Plaintiff also attached a declaration from his father, John Bryant, Sr.,
confirming Plaintiff’s new domicile and address to be in Carrollton, Georgia.
At this stage of the case, the Court finds that Plaintiff has alleged facts sufficient to raise a
substantial question as to his intent to acquire a new domicile in the state of Georgia. Plaintiff’s
father resides in Georgia and has indicated that Plaintiff will reside with him upon his release from
prison. This is not a situation where an inmate is claiming his state of incarceration as his new
domicile based solely on his own self-serving statements. Plaintiff has alleged exceptional
3

circumstances and offers more than his own unsubstantiated declaration to rebut the presumption
that his domicile remains in Virginia, which was his state of residence prior to his incarceration.3
Plaintiff’s Amended Complaint satisfies the standard set forth in Roberts and should not be
summarily dismissed for lack of subject matter jurisdiction. Accordingly, the Court respectfully
rejects the Magistrate Judge’s R&R and recommits this matter to the Magistrate Judge for an Order
authorizing issuance and service of process.
Although this matter had not been authorized for service, Defendant entered a limited
appearance and filed motions to dismiss [ECF Nos. 4 & 21] challenging personal jurisdiction and
venue among other things. Defendant’s motions to dismiss, which appear to have merit,4 were
prematurely filed as this case has yet to be served. Defendant’s motions to dismiss are denied
without prejudice with permission to refile once Defendant has been served with a Summons and
Amended Complaint.
Conclusion
For the reasons stated above, the Court respectfully rejects the Report and Recommendation
[ECF No. 24] of the Magistrate Judge. This matter is recommitted to the Magistrate Judge for an
Order authorizing issuance and service of process.
Defendant’s [ECF Nos. 4 & 21] motions to dismiss are DENIED without prejudice with
leave to refile.

3

Plaintiff’s argument that his pre-incarceration domicile was North Carolina is without merit and is
contrary to the facts alleged in his Amended Complaint.

4

South Carolina does not appear to have any connection with this matter. Plaintiff has been
transferred to Pennsylvania and Defendant appears to practice law in Richmond, Virginia. It would appear
that after service of process, the matter should probably be transferred to a division in the Eastern District of
Virginia.

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IT IS SO ORDERED.
June 26, 2017
Florence, South Carolina

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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