FrankieMcCoy, Plaintiff, 

### v. Byron H. McCoy, Defendant. UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil Action No.

MEMORANDUM OPINION 

# FILED JAN 2 52010 Clerk, 

## u.s. District and Bankruptcy Courts


# 10 0142

The plaintiffhas filed a pro se complaint and an application to proceed in fonna pauperis. The Court will grant the application and will dismiss the complaint for lack of jurisdiction. The plaintiffhas filed a complaint styled as a civil rights complaint under 42 U.S.C. § 

### 1983. That statute applies only to persons acting under "color" ofstate lawto deprive a person ofhis or her civil rights. 42 U.S.C. § 

### 1983. The complaint, however, involves a dispute between brothers over their deceased parents' estate. See 

### Compi. at 6. On its face, the complaint does not state a claim that may be redressed under § 

### 1983. It

### alleges no facts that even remotely suggest that the defendant, plaintiffs younger brother, see id., 

### is a state actor orthat the defendant deprived the plaintiffofany "rights, privileges, or immunities secured by the Constitution and laws" ofthe United States. 42 U.S.C. § 

### 1983. Therefore, the § 

### 1983 claim will be dismissed without prejudice for failure to state a claim upon which reliefmay be granted. A plaintiffis required by Rule 8 ofthe Federal Rules ofCivil Procedure to include inthe complaint a "short and plain statement ofthe grounds for the court'sjurisdiction." Fed. R. 

### Civ. P.8(a). With the dismissal ofthe § 

### 1983 claim, this court'sjurisdiction over this dispute is indoubt. Unlike state courts ofgeneraljurisdiction, such as the Superior Court for the District of Columbia, this court is a court oflimitedjurisdiction. A federal district courthasjurisdiction in civil actions arising under the Constitution, laws ortreaties ofthe United States. See 28 U.S.C. § 1331. However, it appears that the dispute between the parties arises under state common law, not under federal law. Therefore, it does not appear that this court has federaljurisdictionunder 28 U.S.C. 

### § 1331. A federal district court may havejurisdiction over state common law disputes that arise between citizens ofdifferent states where the amount in controversy exceeds $75,000. See 28 U.S.C. §1332(a). The defendant appears to be a citizen ofthe District ofColumbia, butthe plaintiff, a prisoner confined atthe Maryland Correctional Institute inJessup, Maryland, has not established that he is not a citizen ofthe District ofColumbia. A prisoner is not presumed to be a citizen ofthe state in where he is incarcerated, but rather ofthe state in which he was domiciled before he was incarcerated. Jones v. Hadican, 552 F.2d 249, 250-51 (8th Cir. 1977); Sullivan v. Freeman, 944 F.2d 334,337 (7th Cir. 1991); Smith v. Cummings, 445 F.3d 1254 (lOth Cir. 2006). In addition, the plaintiffhas not alleged an amount in controversy. Therefore, the plaintiffhas not established that this courthas diversityjurisdictionunder § 1332(a). Accordingly, the Court will dismiss without prejudice the 

### § 1983 claim for failure to state
a claim upon which reliefmay be granted, and any implied common law claims for lack of jurisdiction. A separate order accompanies this memorandum opinion.