United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE COMPLAINT FOR LACK
OF SUBJECT MATTER JURISDICTION
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
December 13, 2019, the Court issued an order in this matter
requiring plaintiff to show cause why the Court should not
dismiss the complaint for lack of subject matter
This matter is presently before the Court on the Court's
own review of the complaint. In June 2009, plaintiff was
sentenced to a 262-month term of imprisonment after pleading
guilty to charges of wire fraud, securities fraud, and
obstruction of justice. See U.S. v. Custable, No.
1:05cr-00340 (N.D. Ill.). At that time, plaintiff apparently
was a resident of Illinois. In September 2019, plaintiff
commenced the instant action against his former wife, who is
also a resident of Illinois. Plaintiff asserts that this
Court has diversity jurisdiction because he “is a
resident of the State of Michigan and Zaborski is a resident
of the State of Illinois.” Compl. at 1.
The Court doubts that plaintiff is a resident of Michigan.
Although he claims to be serving his sentence at the Federal
Correctional Institution in Milan, Michigan, a prison inmate
generally is deemed to be a resident of the state where he
resided at the time of sentencing, not the state where he
happens to be transported subsequently in order to serve his
sentence. See 13E C. Wright & A. Miller, Federal
Practice and Procedure § 3618 (2009). It therefore
appears that diversity jurisdiction is absent, as both
plaintiff and defendant are residents of Illinois.
IT IS ORDERED that plaintiff show cause within fourteen days
of the date of this order why the Court should not dismiss
the complaint for lack of subject matter jurisdiction.
response to this order, plaintiff has submitted an affidavit
in which he avers, in relevant part:
1) I have been incarcerated since 2005, nearly 15 years of
incarceration in which nearly 11 of the 15 years being at
Milan Correctional Institution.
2) During the last two plus years, I have earned two
Associates Degrees at Jackson Colleg[e]. The tuition for the
college was paid for by Pell Grant in which it asks which
state we are from. I was told that we are from the State of
Michigan due to our state of incarceration. I had given the
address of Milan Correctional Institution, P.O. Box 1000,
Milan, MI 48160 as my residence on my Pell Grant application.
The State of Michigan accepted my application as a resident
3) Jackson College is a community college which has entered
into a partnership with Sienna Heights University, a
four-year university located in Michigan. All Jackson College
credits are counted towards a four-year degree at Sienna
4) Upon my release from Milan Correctional Institution, I
plan to continue to reside in Michigan and attend Sienna
Heights University. See (Unaudited Transcript Correspondence
- Exhibit A).
noted in the Court's show-cause order, plaintiff lived
and worked in Illinois prior to being incarcerated, and he is
presently living in Michigan only because he was brought to
this state to serve the remainder of his prison sentence.
There is a “strong presumption” that a prison
inmate maintains his domicile in the state where he resided
prior to being incarcerated. Stifel v. Hopkins, 477
F.2d 1116, 1127 (6th Cir. 1973) (Edwards, J., concurring).
This presumption “ordinarily requir[es] more than
unsubstantiated declarations to rebut.” Id. at
1126. Assuming that plaintiff “plan[s] on remaining in
Michigan upon his release in 2024 to finish his
Bachelor's Degree, ” Pl.'s Resp. at 1, this
does nothing to establish “either the intention to make
his home [in Michigan] indefinitely or the absence
of an intention to make his home elsewhere.”
Stifel, 477 F.2d at 1120 (emphasis added). At most,
plaintiff has shown that he intends to remain in Michigan for
the short period of time that is needed for him to finish his
degree. Plaintiff has made no averments concerning “the
manner in which [he] has ordered his personal and business
transactions, ” id. at 1127, which might lend
support to the suggestion that he intends to reside in
Michigan indefinitely. Plaintiff has identified no
acquaintances, business associates, friends, family members,
employment prospects, real property, or indeed anything at
all that might constitute evidence indicating an intent to
remain in Michigan after obtaining his bachelor's degree
from Sienna Heights University. And, of course, it is
irrelevant that plaintiff “was told that we are from
the State of Michigan due to our state of incarceration,
” as plaintiff's domicile depends on his own
intentions, not on what others may say or believe.
short, plaintiff has not overcome the presumption that he
remains domiciled in Illinois despite his temporary stay in
Michigan. The Court concludes that it lacks diversity
jurisdiction over this matter because plaintiff and defendant
are citizens of the same state. Accordingly, IT IS ORDERED
that the complaint is dismissed pursuant to Fed.R.Civ.P.
12(h)(3) for lack of subject matter jurisdiction.
FURTHER ORDERED that defendant's “motion to file
for special and limited ...