F I L E D

United States Court of Appeals

Tenth Circuit

April 24, 2006

Elisabeth A. Shumaker

Clerk of Court

 PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TODD CARLTON SMITH, also

known as Shameka Shemae Shamya,

Plaintiff - Appellant,

v. No. 05-3180

WILLIAM CUMMINGS, Kansas

Department of Corrections, in his

official and individual capacity; RAY

ROBERTS, Kansas Department of

Corrections, in his official and

individual capacity; DON THOMAS,

Kansas Department of Corrections, in

his official and individual capacity; E.

L. RICE, Kansas Department of

Corrections, in his official and

individual capacity; JOHN DOE, as

discovery may provide, in his official

and individual capacity; JANE DOE,

as discovery may provide, in her

official and individual capacity;

STEVEN LAFRINERE, CO-I,

Defendants - Appellees.

TODD CARLTON SMITH, also

known as Shameka Shemae Shamya, 

 Plaintiff - Appellant,

 v.

WILLIAM CUMMINGS, Kansas

No. 05-3262
*After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

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Department of Corrections, in his

official and individual capacity; RAY

ROBERTS, Kansas Department of

Corrections, in his official and

individual capacity; DON THOMAS,

Kansas Department of Corrections, in

his official and individual capacity; E.

L. RICE, Kansas Department of

Corrections, in his official and

individual capacity; STEVEN

LAFRINERE, CO-I,

 Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS*

(D.C. NO. 03-CV-3432-MLB)

Todd Carlton Smith, also known as Shameka Shemae Shamya, pro se.

Ralph J. De Zago, Assistant Attorney General (Phill Kline, Attorney General),

Topeka, Kansas, for Defendants - Appellees.

Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit

Judges.

HARTZ, Circuit Judge.
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Appellant Todd Carlton Smith is serving a life sentence imposed by the

state of Florida. While incarcerated in Florida in 1994, he carried out a contract

killing on a fellow inmate. In June 2002 he was transferred for his own

protection to the Kansas Department of Corrections under the Interstate

Corrections Compact (ICC). Mr. Smith alleges that he received the transfer out

of Florida in settlement of legal claims he had against the Florida Department of

Corrections, but the record does not indicate whether he had expressed a

preference that the transfer be to Kansas. 

In April 2003 Mr. Smith was allegedly assaulted by a fellow prisoner at the

Lansing Correctional Facility in Kansas. He filed suit in the United States

District Court for the District of Kansas, raising civil rights claims under

42 U.S.C. § 1983. He later filed an amended complaint adding state-law claims

under the Kansas Tort Claims Act (KTCA). The district court disposed of the

§ 1983 claims by entering a default judgment against one defendant and granting

summary judgment in favor of the others. It then dismissed the KTCA claims for

lack of jurisdiction. On appeal Mr. Smith challenges the grant of summary

judgment, the denial of his damages request against the defaulted defendant, the

failure to order the state to pay the default award, and the dismissal of his KTCA

claims. He also contends that the district judge was biased against him. We have

jurisdiction under 28 U.S.C. § 1291. We affirm the judgment on the § 1983
1The record does not reveal what “callouts” are. See Searles v. Van Bebber,

251 F.3d 869, 872 n.1 (10th Cir. 2001) (assuming that “the term refers to the list

(continued...)

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claims, but reverse the dismissal of the KTCA claims and remand for further

proceedings concerning Mr. Smith’s domicile to determine whether the court has

diversity jurisdiction. 

I. BACKGROUND

Mr. Smith’s claims are predicated on the following allegations: On

April 18, 2003, Steven Lafrinere, a prison guard at Lansing, entered Mr. Smith’s

cell and directed him to another inmate’s cell. That inmate forced Mr. Smith to

engage in homosexual acts in retaliation for Mr. Smith’s earlier murder of a

fellow inmate in Florida who was a member of the Folk Nation, a national

alliance of gangs. Two nights later the incident repeated itself. Mr. Lafrinere’s

employment at Lansing ended on April 27, 2003. On May 7, 2003, Mr. Smith

reported the sexual assaults and asked to be placed in protective custody. While

in protective custody he revealed Mr. Lafrinere’s involvement in the assaults. 

Within a month Mr. Smith informed prison officials that he was not safe even in

protective custody because of the enmity that other Lansing inmates bore towards

him. Specifically, he complained that he and other inmates in protective custody

were forced to pass through the general inmate population when going to medical

“callouts”1

 and other required events. He claimed that he did not feel safe when
1

(...continued)

of inmates who are permitted to attend certain events”). 

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he was exposed to the general prison population on these occasions. On June 9,

2003, Mr. Smith was transferred to the El Dorado Correctional Facility, where he

was placed in long-term segregation. But a few weeks later he asked to be

transferred out of segregation and then requested transfer back to Florida. These

requests were denied. 

Mr. Smith brought this § 1983 action against various prison officials (and

the now-former prison guard, Mr. Lafrinere), claiming violations of his rights

under the Equal Protection Clause, the Eighth Amendment, the Due Process

Clause, the Sixth Amendment, the First Amendment, and the ICC. He sought

compensatory and punitive damages and injunctive relief, including dismissal

from state employment of the defendant prison officials, disciplinary proceedings

against them, their federal prosecution, and his own removal from the custody of

the Kansas Department of Corrections and return to Florida. He further asserted

that he was entitled to relief under the KTCA based on the same alleged

misconduct, stating after his claim against each defendant, 

If this court does not deem the foregoing counts to rise to the level of

being Constitutional violations, plaintiff prays that this court retain

jurisdiction pursuant to Diversity of Citizenship, 28 U.S.C.

§ 1332(a);(1)., as the plaintiff is a citizen of the state of Florida, and

[the defendant] is a citizen of the state of Kansas . . . [the defendant]

was a Kansas state employee, as defined in KS. 75-6102 of the
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Kansas Tort Claims Act. Pursuant to KS. 75-6103, the K.D.O.C. is

liable for damages caused by the negligent or wrongful act or

omission of its employees while acting within the scope of their

employment . . . . 

R. Doc. 8 at 18 (first ellipsis in original); see also id. at 27, 35, 43, 52. He sought

$500,000 in damages from each of the prison officials. The district court ordered

a Martinez report to allow the state prison administration to develop the factual

record at an early stage in the court proceedings. See Martinez v. Aaron, 570 F.2d

317, 319-20 (10th Cir. 1978) (authorizing such reports). After receiving the

report, the district court entered a default judgment against Mr. Lafrinere but

granted summary judgment to the other defendants. The district court dismissed

the claims raised under the KTCA. It reasoned that Mr. Smith was a Kansas

citizen and therefore could not invoke the court’s diversity jurisdiction against the

defendants, who are all Kansas citizens; and it declined to exercise supplemental

jurisdiction under 28 U.S.C. § 1367. 

II. DISCUSSION

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard that should have been used by the district court.” 

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (internal

quotation marks omitted). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and
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that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). 

A. Eighth Amendment Claims

In the district court Mr. Smith raised numerous Eighth Amendment claims,

including claims against various prison officials relating to the alleged assault. 

The district court denied the claims against most of the defendants on the ground

that they were not involved in the assault incidents and there is no vicarious

liability under § 1983. Mr. Smith does not challenge these rulings. He does,

however, raise two Eighth Amendment issues on appeal. First, he contends that

his Eighth Amendment rights were violated by his placement in long-term

segregation for two and a half years. But because he did not raise this claim in

district court, we will not address it. See Simmat v. United States Bureau of

Prisons, 413 F.3d 1225, 1239 (10th Cir. 2005). 

Second, he contends that his Eighth Amendment rights were violated by the

failure of E. L. Rice, a prison official at Lansing, to “ensure that the inmates in

[the] general population were not in the area of [Mr. Smith] when being escorted

to and from the Protective Management Unit.” Aplt. Br. at 16. The district court

properly rejected this claim. “To establish a cognizable Eighth Amendment claim

for failure to protect [an inmate from harm by other inmates], the plaintiff must

show that he is incarcerated under conditions posing a substantial risk of serious
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harm[,] the objective component, and that the prison official was deliberately

indifferent to his safety, the subjective component.” Verdecia v. Adams, 327 F.3d

1171, 1175 (10th Cir. 2003) (internal quotation marks omitted). Mere negligence

does not constitute deliberate indifference; deliberate indifference is equivalent to

recklessness in this context. Id. 

The district court ruled that Mr. Smith had satisfied neither the objective

component nor the subjective component of this test. We agree. Mr. Smith has

not shown that he was incarcerated under conditions posing a serious risk of

harm. He was never assaulted while he was being escorted out of the protective

housing unit. Nor did he present evidence that any inmate had ever been

assaulted in such circumstances. Moreover, prison officials took precautions to

minimize the risk of harm when prisoners were escorted out of the protective

housing unit. These precautions included clearing the area of general-population

inmates when large groups of protective-custody inmates were escorted out of the

unit. And when individual inmates were brought out of protective custody, they

were escorted by at least one prison guard. In light of the lack of evidence that

any prisoner was ever harmed on these occasions, and the evidence of the

precautions taken by prison officials, summary judgment was appropriate on the

ground that there was no substantial risk of harm. Nor has Mr. Smith presented

evidence that prison officials were deliberately indifferent to his safety. On the
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contrary, when officials learned that he was concerned about his safety, they

immediately took steps to protect him. Mr. Smith concedes that prison officials

did not learn of his concerns until he filed a grievance, and the record shows that

he was transferred to El Dorado for his own safety the day after he filed the

grievance. The district court properly granted summary judgment on Mr. Smith’s

Eighth Amendment claims. 

B. ICC Claim

Mr. Smith also appeals the district court’s rejection of his claim under

§ 1983 that he was denied rights granted by the ICC. But we agree with the

district court’s conclusion that violations of the ICC are not violations of federal

law, and therefore are not actionable under § 1983. As we said in Garcia v.

LeMaster, 439 F.3d 1215, 1219 n.7 (10th Cir. 2006), in dismissing a prisoner’s

§ 1983 claim, 

To the extent that [the prisoner] contends [state] officials failed to

abide by the ICC, and to the extent he seeks a declaration that [state]

officials must follow the requirements of the ICC, he also fails to

state a claim upon which relief may be granted. The ICC’s

procedures are a purely local concern and there is no federal interest

absent some constitutional violation in the treatment of these

prisoners. 

(internal quotation marks omitted). 

C. Damages
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Mr. Smith contends that the district court erred in the amount of damages it

awarded him in its default judgment against Mr. Lafrinere. He contends that the

“District Court failed to comply with [Fed. R. Civ. P. 54 (c)], and award

[Mr. Smith] the amount of Damage requested in his complaint against Steven

Lafrinere, in the amount of $12,000,000.” Aplt. Br. at 20. Mr. Smith has

misconstrued the import of Rule 54(c), which establishes a ceiling rather than a

floor on damages. It states, “A judgment by default shall not be different in kind

from or exceed in amount that prayed for in the demand for judgment.” (emphasis

added). Because Rule 54(c) does not mean what Mr. Smith thinks it means and

he has not directed us to any other authority supporting his claim for $12,000,000

in damages, this claim must fail. 

Mr. Smith also argues that the Kansas Department of Corrections must pay

the $6000 damages award. But the department is not a party, so no judgment

could be entered against it. See Russ v. Uppah, 972 F.2d 300, 302 n.4 (10th Cir.

1992). And we need not dwell on his apparent contention that his suit against

Mr. Lafrinere is a suit against him in his official capacity that should be construed

as a suit against the state, because § 1983 does not authorize suits against states. 

See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). 

D. Kansas Tort Claims Act/Diversity Jurisdiction
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For his KTCA claims, Mr. Smith’s complaint invoked the diversity

jurisdiction of the federal district court under 28 U.S.C. § 1332(a)(1). The

district court ruled that because Mr. Smith and the defendants were all Kansas

citizens, the requisite diversity of citizenship was absent. The court then

exercised its discretion not to accept supplemental jurisdiction under 28 U.S.C. §

1367 and dismissed the KTCA claims. Mr. Smith appeals the dismissal, asserting

that as a Florida prisoner he is a citizen of that state, so diversity of citizenship

was present. 

For purposes of federal diversity jurisdiction, an individual’s state

citizenship is equivalent to domicile. Crowley v. Glaze, 710 F.2d 676, 678 (10th

Cir. 1983). To establish domicile in a particular state, a person must be

physically present in the state and intend to remain there. Keys Youth Servs., Inc.

v. Olathe, 248 F.3d 1267, 1272 (10th Cir. 2001). Once domicile is established,

however, the person may depart without necessarily changing his domicile. “To

effect a change in domicile, two things are indispensable: First, residence in a

new domicile, and second, the intention to remain there indefinitely.” Crowley,

710 F.2d at 678. 

Because domicile is a voluntary status, a prisoner is presumed to be a

citizen of the state of which he was a citizen before his incarceration, even if he

is subsequently incarcerated in another state. Sullivan v. Freeman, 944 F.2d 334,
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337 (7th Cir. 1991). See Restatement (Second) Conflict of Laws 2d § 17 cmt. b.

(1988 rev.) (prisoner “highly unlikely” to have state of mind necessary for

domicile in state of imprisonment). In Sullivan the Seventh Circuit held that an

Illinois prisoner’s domicile was Virginia because he lived there before his

imprisonment and planned to return there upon release. 944 F.2d at 337. The

presumption, however, is rebuttable. See id.; Housand v. Heiman, 594 F.2d 923,

925-26 n.5 (2d Cir. 1979); Stifel v. Hopkins, 477 F.2d 1116, 1126-27 (6th Cir.

1973); Jones v. Hadican, 552 F.2d 249, 250-51 (8th Cir. 1977); 15 James Wm.

Moore et al., Moore’s Federal Practice § 102.37[8][b] (3d ed. 1997). If, for

instance, the prisoner decides he wants to live in another state upon release and is

therefore assigned to a prison in that state, his domicile becomes that state. 

Sullivan, 944 F.2d at 337. Factors to be weighed in determining domicile include

the prisoner’s declaration of intentions, “the possibility of parole . . . , the manner

in which [he] has ordered his personal and business transactions, and any other

factors that are relevant to corroboration of [the prisoner’s] statements.” Stifel,

477 F.2d at 1126-27. 

The district court explained as follows its determination that Mr. Smith was

a Kansas citizen: 

[Mr. Smith] consented to being transferred to Kansas. In fact, [he]

asserts that he won the right to be transferred to Kansas as a

settlement for claims he had against the Florida Department of

Corrections. Under those circumstances, the court concludes that
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[Mr. Smith] voluntarily relocated to Kansas; and, given that he is

serving a life sentence, [he] intends to remain in Kansas indefinitely. 

R. Doc. 82 at 19 (Dist. Ct. Order, April 19, 2005). Ordinarily, we would review

for clear error the district court’s factual findings regarding Mr. Smith’s

citizenship. See Aves ex rel. Aves v. Shah, 997 F.2d 762, 766 (10th Cir. 1993). 

Under that standard we would question whether the determination here is

affirmable, given the presumption that Mr. Smith retained his Florida domicile. 

First, it is unclear whether Mr. Smith had specifically requested a transfer to

Kansas in 2002 or was simply seeking any safe haven. A desire to flee the

perilous circumstances of his confinement in Florida makes his decision more like

that of a person living in forced exile, see Stifel, 477 F.2d at 1121, than that of

one who has moved voluntarily. We also note that his waiver of extradition

consenting to confinement in Kansas includes a consent to be returned to Florida

upon the demand of either state. Moreover, the district court apparently

overlooked other evidence of Mr. Smith’s intentions. In 2003 Mr. Smith invoked

the ICC in an effort to return to Florida. And apparently one element of relief

sought in his federal complaint is that he be returned to Florida. 

But we need not resolve whether the district court’s domicile determination

was proper on the present record, because a procedural error requires remand in

any event. The district court failed to afford Mr. Smith an opportunity to rebut

the challenge to the claim of Florida citizenship in his complaint. The defendants
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never raised a challenge to Mr. Smith’s claim. The district court apparently acted

sua sponte and without notice. Because Mr. Smith had no opportunity to respond

to the district court’s concern about his domicile, we reverse the dismissal of the

KTCA claims and remand to the district court for further proceedings to

determine domicile. 

E. Judicial Bias

Finally, Mr. Smith claims that District Judge Monti Belot is biased against

inmates. We reject this claim because he does not cite any evidence in support of

this conclusory allegation. See Gross v. Burggraf Constr. Co., 53 F.3d 1531,

1546 (10th Cir. 1995) (we will not consider on appeal factual allegations in a

brief which are unsupported by citation to the record). 

We REVERSE the district court’s ruling that it did not have diversity

jurisdiction over Mr. Smith’s state-law claims, and REMAND for further

proceedings consistent with this opinion. We AFFIRM the judgment with respect

to the § 1983 claims. We DENY the appellees’ motion to file a supplemental

brief and both motions to strike.