United States District Court, E.D. New York
October 8, 2004.
GARY POUCHER, Plaintiff,
INTERCOUNTY APPLIANCE CORP. Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Gary Poucher ("plaintiff" or "Poucher") commenced this action
based on violations of 42 U.S.C. § 1983, accompanied by an
application to proceed in forma pauperis. For the reasons
stated below, the application is granted and the complaint is
dismissed with prejudice.
The plaintiff, who is incarcerated at a prison in California,
filed his complaint, using a Clerk's Office prisoner civil rights
42 U.S.C. § 1983 form. He alleges that on June 22, 1998, while
employed at Roel Transport, Inc., he delivered 80 standard size
refrigerators from a manufacturer in Virginia to the premises of
defendant Inter County Appliance Corporation in Commack, New
York. Plaintiff states that there was nobody available to unload
the merchandise, and that an office clerk informed him "that he
would have to unload the truck himself. If not he [the office
clerk] would refuse the truck, and force him [the plaintiff] to
wait until next week. . . ."
Plaintiff further alleges that after unloading 80 refrigerators
by himself, he suffered severe and permanent injuries as a result
of the defendant's negligence. Plaintiff attached Exhibit "B" to
the complaint, which consists of a verified complaint against the
same defendant, that he filed in the Supreme Court, County of
Nassau. In this complaint, the plaintiff alleges, inter alia,
that the defendant failed to provide adequate and proper
equipment for work that the plaintiff performed.
The plaintiff seeks $2,000,000 in monetary damages.
A. In Forma Pauperis Application
Upon review of the plaintiff's declaration in support of his
application to proceed in forma pauperis, the Court
concludes that the plaintiff's financial status qualifies him to
commence this action without prepayment of the filing fees. See
28 U.S.C. § 1915(a)(1). Therefore, the plaintiff's request to
proceed in forma pauperis is granted.
B. 42 U.S.C. § 1983
It is well-settled that the Court is required to read the
plaintiff's pro se complaint liberally. See Hughes v.
Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980);
Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652,
92 S. Ct. 594 (1972). The Court is further required to liberally
construe a pro se plaintiff's papers "`to raise the strongest
arguments that they suggest.'" Soto v. Walker, 44 F.3d 169, 173
(2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1990)). Further, at this stage of the proceedings, the Court
assumes the truth of the allegations in the complaint. See
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50,
106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Koppel v. 4987
Corp., 167 F.3d 125, 127 (2d Cir. 1999).
Section 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
42 U.S.C. § 1983.
Thus, to state a claim under Section 1983, a plaintiff must
allege facts showing that the defendant acted under color of a
state "statute, ordinance, regulation, custom or usage."
42 U.S.C. § 1983. In general, private parties are not liable. See
Rendell-Baker v. Kohn, 457 U.S. 830, 838-42, 73 L. Ed. 2d 418,
102 S. Ct. 2764 (1982). Here, the complaint fails to allege that
the defendant acted as a state actor and that it acted under
color of state "statute, ordinance, regulation, custom or usage."
Furthermore, it is well settled that claims under Section 1983
must be commenced within three years of the alleged violation.
See Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir.
1999) (stating that three years is the statute of limitations for
a New York based Section 1983 cause of action); Okure v. Owens,
816 F.2d 45, 49 (2d Cir. 1987) (stating the same). In this case,
it appears that the plaintiff's claims arose out of events that
occurred in 1998. The complaint was filed on September 14, 2004.
Thus, the complaint is untimely as a matter of law. See Pino
v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995) (stating that a sua
sponte dismissal is "appropriate if it appears from the face of
the complaint that the action is barred . . . by the statute of
limitations"). Accordingly, the Section 1983 cause of action in
the complaint is dismissed with prejudice.
C. 28 U.S.C. § 1332
To the extent that the plaintiff is seeking to bring this
action under 28 U.S.C. § 1332 (diversity of citizenship), based
on the state law claim of negligence, such cause of action is
dismissed without prejudice.
Section 1332 requires that the matter in controversy exceed
$75,000 and that the plaintiff and the defendant are citizens of
different states. 28 U.S.C. § 1332(a)(1).
It is well-established that a prisoner does not acquire a new
domicile when he is incarcerated in a state different from his
previous domicile. Instead, the prisoner retains his
preincarceration domicile. See 15 James Wm. Moore et al.,
Moore's Federal Practice ¶ 102.37(8)(a) (3d ed. 1999) (collecting
cases). In some jurisdictions, the rule that prisoners retain
their former domicile has taken the form of an irrebuttable
presumption. See id. ¶ 102.37(8)(b). However, in the Second
Circuit, along with three other circuits, the presumption is
rebuttable; thus, although 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. See
Housand v. Heiman, 594 F.2d 923, 925 n. 5 (2d Cir. 1979)
(embracing the practice of "allowing a prisoner to try to show
that he has satisfied the prerequisites for establishing domicile
in his place of incarceration"); see also Sullivan v.
Freeman, 944 F.2d 334, 337 (7th Cir. 1991) ("The presumption is
rebuttable a prisoner might for example decide he wanted to
live in another state when he was released and the federal prison
authorities might therefore assign him to a prison in that state,
and that would be the state of his domicile."); Jones v.
Hadican, 552 F.2d 249, 251 (8th Cir. 1977) ("While retaining the
usually valid presumption that a prisoner retains his
pre-incarceration domicile, [the rebuttable presumption rule] is
sufficiently flexible to allow a prisoner to show truly
exceptional circumstances which would justify a finding that he
has acquired a new domicile at the place of his incarceration.");
Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973) ("We
recognize the importance of considering physical or legal
compulsion in determining whether domicile is gained or lost, but
we limit the application of involuntary presence to its operation
as a presumption ordinarily requiring more than unsubstantiated
declarations to rebut.").
On its face, Poucher's complaint does not adequately allege
diversity of citizenship. 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.
Poucher "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.
According to Exhibit B of the complaint, the plaintiff was a
resident of Nassau County (prior to his incarceration) and the
defendant was a domestic corporation incorporated under the laws
of New York. Because the plaintiff and the defendant are citizens
of New York, there is no diversity of citizenship. See
Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir.
1990). Accordingly, diversity jurisdiction does not exist.
D. Leave to Amend
In accordance with the Second Circuit's preference for
adjudication of cases on the merits, and that Court's holding
that a district court abuses its discretion when it dismisses a
complaint, but does not grant leave to amend, see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988), the Court grants the
plaintiff leave to amend his complaint within thirty days from
the date of this Order. The amended complaint shall correct the
pleading deficiencies discussed in this opinion. In the event
that the complaint is not filed within thirty days, this action
will be dismissed with prejudice.
Based upon the foregoing, it is hereby
ORDERED, that plaintiff's request to proceed in forma
pauperis is granted; and it is further
ORDERED, that the agency holding the plaintiff in custody
calculate the amounts specified in 28 U.S.C. § 1915(b), deduct
those amounts from his prison trust fund account, and disburse
them to the Clerk of the United States District Court for the
Eastern District of New York; and it is further
ORDERED, that the superintendent of the facility in which the
plaintiff is incarcerated forward to the Clerk of the Court a
certified copy of the prisoner's trust fund account for the six
months immediately preceding this order, in accordance with the
plaintiff's previously submitted authorization form; and it is
ORDERED, that the Court sua sponte dismisses the § 1983
claim with prejudice; and it is further
ORDERED that the Court sua sponte dismisses the possible
state-law negligence claim without prejudice; and it is further
ORDERED, that pursuant to Rule 15(a) of the Federal Rules of
Civil Procedure, leave to amend the complaint is granted in order
to remedy the pleading deficiencies discussed herein, provided
that the amended complaint is filed within thirty days from the
date of this Order; and it is further
ORDERED, that if the amended complaint is not submitted
within that time prescribed above, the complaint shall be
dismissed with prejudice, and the Clerk of the Court shall close
this case; and it is further
ORDERED that the Clerk of the Court shall mail a copy of this
Order, together with the plaintiff's authorization, to the
superintendent of the facility in which the plaintiff is
incarcerated and to the plaintiff; and it is further
ORDERED that the Clerk of the Court shall send a copy of this
Order to the plaintiff by regular first class mail and by
certified mail, return receipt requested.
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