UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HERMAN WILLIAMS, JR.,

Plaintiff-Appellant,

v.

DR. BALOCH; DR. HENRY; MR.

MARTIN,

Defendants-Appellees,

No. 97-6787

and

JOHN DOE, various unidentified

defendants at Odom Correctional

and Brown Creek Correctional,

Defendant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CA-96-576-5-BO)

Submitted: November 18, 1997

Decided: December 22, 1997

Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded with instructions by unpublished per curiam

opinion.

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COUNSEL

Herman Williams, Jr., Appellant Pro Se. Sharon Coull Wilson, Associate Attorney General, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Herman Williams, a North Carolina prisoner, appeals the district

court's grant of summary judgment dismissing his medical malpractice claim. Appellant filed a medical malpractice action in federal

court against various North Carolina prison medical personnel pursuant to 28 U.S.C.A. § 1332 (West 1993 & Supp. 1997). Although

Appellant invoked federal jurisdiction over his state law claim pursuant to § 1332, the district court treated his claim as a civil rights

action under 42 U.S.C.A. § 1983 (West 1997). Because the district

court failed to make a determination whether Appellant properly

invoked federal jurisdiction pursuant to § 1332, we vacate and

remand.

District courts have original jurisdiction over civil actions where

the amount in controversy exceeds $75,000 and is between citizens

of different states. 28 U.S.C.A. § 1332(a)(1) (West 1993 & Supp.

1997). Appellant alleges that he was domiciled in Texas prior to his

incarceration in North Carolina and thus is a citizen of Texas for

diversity purposes. Defendants, citizens of North Carolina, have put

forth no evidence disputing Appellant's allegation that Texas was his

pre-incarceration domicile, but deny the existence of diversity jurisdiction based on Appellant's status as a North Carolina prisoner. The

district court also apparently believed that Appellant's incarceration

in North Carolina precluded him from showing diversity. However,

courts have held that because domicile is a voluntary status, a prisoner

may have as his domicile a state other than the state where he is

imprisoned. See Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir.

1991). Accordingly, we vacate the district court order granting Defendants' motion for summary judgment and remand for a determination

on Appellant's domicile and for the district court to take further

action as its findings warrant. In light of this disposition, Appellant's

motions for a default judgment and for a transcript at the govern-

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ment's expense are denied. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED WITH INSTRUCTIONS

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