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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KHAMLOR BOULYAPHONH, §

#56156-177 §

Plaintiff, §

§ No. 3:22-cv-01443-D (BT)

v. §

§

KENT W. STARR, et al., §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Khamlor Boulyaphonh, a federal prisoner, has failed to 

establish subject matter jurisdiction exists in this pro se civil action. 

Therefore, the Court should dismiss the case without prejudice. 

Background

Boulyaphonh initiated this action by sending a letter to the Clerk of 

Court for the Northern District of Texas. Compl. (ECF No. 3). His letter 

purports to be a “Notice of Intention to File Civil Suit/Civil Action Filing 

Date Place Holder;” and in it, Boulyaphonh requests, “Please accept this 

motion as me having met the Statute Of Limitation [sic] Requirement of two 

years [sic] time limit to file for civil suit.” Id. He goes on to explain that he 

intends to file a civil lawsuit against his criminal attorney, Kent W. Starr, for 

legal malpractice because Starr made him plead guilty to a crime he did not 

commit. 

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The magistrate judge sent Boulyaphonh an Order and Notice of 

Deficiency (NOD), which ordered him to file a complaint in compliance with 

Federal Rule of Civil Procedure 8(a), pay the filing fee or a proper motion to 

proceed in forma pauperis, and file his pleadings on the appropriate form. 

(ECF No. 5.) The NOD informed Boulyaphonh that failure to respond and 

cure these deficiencies by August 8, 2022, could result in a recommendation 

that his case be dismissed. 

On August 5, Boulyaphonh filed a motion seeking a stay or more time 

to comply with the NOD (ECF No. 8). And on August 6, he filed a form 

complaint with most of the information left blank (ECF No. 7). Boulyaphonh 

did not pay the filing fee or file a motion to proceed in forma pauperis prior 

to the August 8 deadline. 

On August 10, the magistrate judge issued findings and conclusions, 

recommending that Boulyaphonh’s complaint be dismissed without 

prejudice under Federal Rule of Civil Procedure 41(b). (ECF No. 6.) On 

August 15, the magistrate judge noted that Boulyaphonh conceded he failed 

to comply with the NOD, stated he did not intend to comply with the 

magistrate judge’s instructions for several months, failed to pay the filing 

fee, and his jurisdictional allegations were so deficient it was not clear the 

court had jurisdiction over the case. (ECF No. 10.) The magistrate judge 

denied Boulyaphonh’s request for a stay or an extension of time to comply 

with the NOD. Id.

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On September 6, the District Court determined that although 

dismissal may be appropriate for Boulyaphonh’s failure to pay the filing fee, 

move to proceed in forma pauperis, or otherwise establish subject matter 

jurisdiction, it was not appropriate at that time to dismiss under Rule 41(b). 

(ECF No. 11.) The District Court entered an order of re-reference and 

directed the magistrate judge to proceed with the screening process. Id.

On September 20, Boulyaphonh filed an “Affidavit,” which the 

magistrate judge liberally construes as a second amended complaint (ECF 

No. 12). In this operative pleading, Boulyaphonh generally alleges that Starr 

committed legal malpractice when he represented him in a federal criminal 

case filed in August 2017. Boulyaphonh has still not paid the $402.00 filing 

fee, nor has he filed a proper motion to proceed in forma pauperis. 

Legal Standards and Analysis

Federal courts have limited subject matter jurisdiction and cannot 

entertain cases unless authorized by the Constitution and legislation. Griffin 

v. Lee, 621 F.3d 380, 388 (5th Cir. 2010); see also Coury v. Prot, 85 F.3d 

244, 248 (5th Cir. 1996). Federal courts are obliged to examine the basis for 

the exercise of federal subject matter jurisdiction. Smith v. Texas Children's

Hosp., 172 F.3d 923, 925 (5th Cir. 1999). A federal district court may 

examine its subject matter jurisdiction over a matter, sua sponte, at any 

time. Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999)

(a court must raise the issue sua sponte if it discovers that it lacks subject 

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matter jurisdiction); see also MCG, Inc. v. Great W. Energy Corp., 896 F.2d 

170, 173 (5th Cir. 1990) (“Federal courts, both trial and appellate, have a 

continuing obligation to examine the basis for their jurisdiction. The issue 

may be raised by parties, or by the court sua sponte, at any time.”). Federal 

Rule of Civil Procedure 12(h)(3) requires that federal courts dismiss an 

action “[i]f the court determines at any time that it lacks subject-matter 

jurisdiction[.]”

Federal district courts have original jurisdiction over two types of 

cases: (1) cases that arise under federal law, generally referred to as “federal 

question jurisdiction,” and (2) cases in which the amount in controversy 

exceeds $ 75,000 and there is complete diversity of citizenship among the 

parties (“diversity jurisdiction”). 28 U.S.C. §§ 1331 (federal question 

jurisdiction) and 1332(a) (diversity jurisdiction); see also Home Depot U. S.

A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019). There is a presumption 

against subject-matter jurisdiction, and it must be rebutted by the party 

filing an action in federal court. See Coury, 85 F.3d at 248. “The party 

seeking to invoke the jurisdiction of the federal court has the burden of 

proving that jurisdiction exists.” Aetna Casualty & Surety Co. v. Hillman, 

796 F.2d 770, 775 (5th Cir. 1986); see also St. Paul Reinsurance Co., Ltd. v.

Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). 

The magistrate judge liberally construes Boulyaphonh’s pleadings 

with all possible deference due a pro se litigant. See Erickson v. Pardus, 551 

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U.S. 89, 94 (2007) (pro se pleadings are “to be liberally construed,” and “a 

pro se complaint, however inartfully pleaded, must be held to less stringent 

standards than formal pleadings drafted by lawyers.”) (citing Estelle v. 

Gamble, 429 U.S. 97, 106 (1976)); see also Haines v. Kerner, 404 U.S. 519, 

520-21 (1972) (per curiam) (noting that allegations in a pro se complaint, 

however inartfully pleaded, are held to less stringent standards than form 

pleadings drafted by lawyers); Cf. Fed. R. Civ. P. 8(e) (“Pleadings must be 

construed so as to do justice”). And liberally construed, Boulyaphonh 

appears to allege that his attorney, Starr, committed legal malpractice when 

Starr represented Boulyaphonh in a federal criminal tax case in the Northern 

District of Texas from August 2017 through August 2020. Boulyaphonh 

professes his innocence of any criminal wrongdoing, and he claims that Starr 

defrauded him and forced or tricked him into pleading guilty.1 Boulyaphonh 

estimates that he and his wife and codefendant, Tammy, lost money due to 

Starr’s malpractice. 2d Am. Compl. 6 (ECF No. 12).

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 The Court takes judicial notice of the docket in United States v. 

Boulyaphonh, Case Number 3:17-cr-00450-B-2, in which attorney Kent W. 

Starr served as retained counsel for Boulyaphonh. On February 7, 2020, 

Boulyaphonh pleaded guilty to the following: (1) participating in a Klein 

conspiracy, in violation of 18 U.S.C. § 371 (one count), and (2) making false 

statements on income tax returns, in violation of 26 U.S.C. § 7206(1) (four 

counts). Boulyaphonh was sentenced to a total term of 37 months’ 

imprisonment.

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In the form complaint he submitted on August 12, 2022, Boulyaphonh 

checked the box indicating that federal diversity jurisdiction exists. Am. 

Compl. 3 (ECF No. 7). He alleges that Starr caused him and Tammy to lose 

$120,000 for “case representation” and $7,500 for an “expert.” 2d Am. 

Compl. 6 (ECF No. 12). Boulyaphonh arguably alleges a sufficient amount in 

controversy to satisfy the jurisdictional requirement, but he wholly fails to 

allege that he and Starr are citizens of different states. To the contrary—from 

the facts alleged in his operative pleading—it appears, that Starr and 

Boulyanphonh are both citizens of Texas. That is, Boulyanphonh alleges that 

Starr is a licensed attorney who represented Boulyaphonh in federal court in 

the Northern District of Texas. And, although Boulyaphonh is presently 

incarcerated at the Federal Correctional Institution (FCI) Fort Dix in New 

Jersey—for purposes of diversity jurisdiction—a prisoner is a citizen of the 

state of which he was a citizen before he was sent to prison unless he plans 

to reside elsewhere when he is released, in which event he is a citizen of that 

state. See Ronald Alexander Leblanc Tr. v. Ransom, 276 F. Supp. 2d 647, 

651 (S.D. Tex. 2003) (cting Bontkowski v. Smith, 305 F.3d 757, 763 (7th Cir. 

2002)). Boulyaphonh alleges that before he went to prison, he lived and 

worked in Texas with his wife, Tammy. Boulyaphonh cannot meet his 

burden to establish diversity jurisdiction on these facts. See Kokkonen v. 

Guardian Life Ins. of America, 511 U.S. 375, 377 (1994); see also Pershing, 

L.L.C. v. Kiebach, 819 F.3d 179, 181 (5th Cir. 2016). 

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Likewise, he has not established that this case presents a federal 

question. When determining whether federal question jurisdiction exists, it 

“must be determined by reference to the ‘well pleaded complaint.’” Merrell 

Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (citation 

omitted). This means that the complaint must “raise issues of federal law 

sufficient to support federal question jurisdiction.” Rodriquez v. Pacificare

of Tex., Inc., 980 F.2d 1014, 1017 (5th Cir. 1993). Generally, there is no 

federal question jurisdiction when the plaintiff pleads only a state law cause 

of action. Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 

2008). As discussed, Boulyaphonh’s sole claim is for legal malpractice. 

However, a legal malpractice claim is a state law claim. See Rogers v. 

Zanetti, 518 S.W.3d 394, 400 (Tex. 2017) (a legal malpractice claim in Texas 

requires that “the client must establish that: (1) the lawyer owed a duty of 

care to the client; (2) the lawyer breached that duty; and (3) the lawyer’s 

breach proximately caused damage to the client”). Thus, there is no federal 

question jurisdiction here.

Because it appears that the Court lacks subject matter jurisdiction, 

this action should be dismissed without prejudice to Boulyaphonh raising 

his state law claim in state court. 

Conclusion

For the reasons stated, the Court should DISMISS this case without 

prejudice. 

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SO RECOMMENDED.

November 9, 2022. 

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). To be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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