United States District Court, D. South Carolina, Rock Hill Division
John A. Bryant, Jr., Plaintiff,
Taylor B. Stone, Defendant.
Bryan Harwell United States District Judge.
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,
matter comes before the court with the Report and
Recommendation [ECF No. 24] of Magistrate Judge Paige J.
Gossett filed on February 28, 2017. 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.
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. 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
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 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.
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
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.
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
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 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.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.
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,  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
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.
[ECF Nos. 4 & 21] motions to dismiss are DENIED without