UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Richard A. Davidson,

Plaintiff, Case No. 1:18-cv-00344

v. Judge Michael R. Barrett

Gisele Kidwell, et al., 

Defendants.

ORDER 

This matter is before the Court on the Magistrate Judge’s Report and 

Recommendation (“R&R”). (Doc. 4). Proper notice has been given to the parties, 

including notice that they would waive further appeal if they failed to file objections to the 

R&R in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

Plaintiff filed timely objections. (Doc. 5). The Magistrate Judge provided a 

comprehensive review of the record in the R&R and the same will not be repeated herein.

Determinations made by a Magistrate Judge are subject to the review of the district 

court pursuant to 28 U.S.C. § 636(b)(1). With respect to dispositive matters, and when 

the Court receives timely objections to an R&R, the assigned “district judge must 

determine de novo any part of the magistrate judge’s disposition that has been properly 

objected to.” FED. R. CIV. P. 72(b)(3). “The district judge may accept, reject, or modify 

the recommended disposition; receive further evidence; or return the matter to the 

magistrate judge with instructions.” Id.

Plaintiff objects to the Magistrate Judge’s finding that diversity jurisdiction is 

lacking. “[D]iversity of citizenship is assessed at the time the action is filed.” Freeport-
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McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991). Citizenship, for purposes 

of diversity jurisdiction, is determined by the state in which the person is domiciled. Von 

Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990). “To acquire a domicile within a 

particular state, a person must be physically present in the state and must have either the 

intention to make his home there indefinitely or the absence of an intention to make his 

home elsewhere.” Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973). “Most cases 

have uniformly held that incarceration does not change a prisoner's domicile for purposes 

of the diversity statute.” Tucker v. U.S. Bank, N.A., No. 1:13 CV 1260, 2014 WL 1224362, 

at *3 (N.D. Ohio Mar. 24, 2014).

The Magistrate Judge explained that Plaintiff is a prisoner at the Warren 

Correctional Institution (“WCI”) in Lebanon, Ohio and determined he is an Ohio citizen 

based on the information he provided in his Complaint. (Doc. 4 at PageID 40, 43). In his 

objections, Plaintiff alleges that he is a citizen of Kentucky, he does not reside or have a 

residence in Ohio, and the WCI is an institution of slavery that does not constitute his 

residential dwelling for purposes of diversity jurisdiction. (Doc. 5 at PageID 46). Although 

Plaintiff now states that he is a citizen of Kentucky, he provides no other information or 

evidence to support his statement and does not argue that he is domiciled in Kentucky. 

Id. In his Complaint, he listed his address as in Ohio and did not explain or allege that 

his domicile is in Kentucky. (Doc. 3). The Court agrees with the Magistrate Judge that

diversity jurisdiction is lacking.

Plaintiff then objects to the Magistrate Judge’s finding that the Court is without 

federal question jurisdiction. (Doc. 4 at PageID 43). The Magistrate Judge explained that 

she was unable to discern, from the facts that Plaintiff alleged in his Complaint, any 
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federal statutory or constitutional provision that applies to give rise to an actionable claim 

by Plaintiff against the named Defendants. Id. To the extent, Plaintiff alleges that the 

named corporate Defendants permit child pornography on their respective websites and 

asserts that “federal law prohibits any form of media displaying child pornography” (Doc. 

5 at PageID 47), he appears to suggest that those Defendants have violated federal 

criminal law. However, federal criminal statutes are not a basis for federal civil liability. 

See e.g., United States v. Oguaju, 76 F. App’x. 579, 581 (6th Cir. 2003) (affirming district 

court’s dismissal of claim pursuant to 18 U.S.C. §§ 241, 242, as defendant had no private 

right of action under those criminal statutes). Accordingly, the Court denies Plaintiff’s 

request to amend his Complaint (Doc. 5 at PageID 47) and agrees that the Court is 

without federal question jurisdiction.

Finally, Plaintiff objects to the Magistrate Judge’s recommendation that his 

Complaint be dismissed with prejudice. (Doc. 4 at PageID 44). He argues that “[t]his is 

rash” whereas “[d]ismissal without prejudice is understanding and gives the plaintiff his 

day in court to properly address the unlawful acts of the defendants.” (Doc. 5 at PageID 

47). The Court disagrees, particularly in light of Plaintiff’s failure to, once again, provide 

the Court with any evidence establishing jurisdiction.
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In light of the above, and having conducted a de novo review, the Court overrules 

Plaintiff’s objections (Doc. 5) and ACCEPTS and ADOPTS the Magistrate Judge’s Report 

and Recommendation (Doc. 4). Accordingly, Plaintiff’s Complaint is hereby DISMISSED 

with prejudice. Furthermore, pursuant to 28 U.S.C. § 1915(a)(3), this Court certifies 

that, for the foregoing reasons, an appeal of this Order would not be taken in good faith. 

See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).

 IT IS SO ORDERED.

_s/ Michael R. Barrett___________

JUDGE MICHAEL R. BARRETT