UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Hall

v. Civil No. 08-cv-485-JL

Douglas Ross

REPORT AND RECOMMENDATION

Before the Court is Kevin Hall’s damages action (document

no. 1), alleging that defendant violated his rights by acting to

deprive Hall of his interest in his late mother’s estate. As

Hall is a prisoner, the matter is before me for preliminary

review to determine, among other things, whether the complaint

states any claim upon which relief might be granted. See 28

U.S.C. § 1915A(a); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2)(A).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

Magistrate Judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

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See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

On March 4, 2007, Hall’s mother, Aldona Ross, died suddenly

while Hall was incarcerated. Before Hall was even aware that his

mother was dead, his stepfather, Douglas Ross, presented himself

to the Cheshire County Probate Court as an individual with an

interest in Aldona Ross’ estate, and declared himself to be the

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administrator of the estate. Hall claims that Mr. Ross falsified

documents to the probate court which resulted in the misleading

impression that Hall’s mother’s estate was much smaller than it

actually was, thus diminishing Hall’s rightful share of her

estate. Hall now claims that defendant engaged in these and

other actions to illegally and fraudulently deprive Hall of an

interest in his mother’s estate to which he is entitled.

Discussion

I. 42 U.S.C. § 1983

The United States Constitution “erects no shield against

merely private conduct, however discriminatory or wrongful.” 

Blum v. Yarketsky, 457 U.S. 991, 1002 (1981). A plaintiff

claiming infringement of a constitutional right by an individual

defendant must establish that (i) the defendant deprived

plaintiff of a right secured by the Constitution or laws of the

United States, and (ii) the defendant acted under “color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory of the District of Columbia.” 42 U.S.C. § 1983. In

relation to the second requirement, a private actor can be held

to be a state actor under only three circumstances: “(i) where

there is a sufficiently close nexus between the state and the

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challenged action of the private party so that the action of the

party may be fairly treated as that of the state itself, (ii)

where the private party has exercised powers that are

‘traditionally the exclusive prerogative of the state,’ or (iii)

where the state has exercised coercive power or has provided such

significant encouragement, either overt or covert that the action

of the private party must in law be deemed to be that of the

state.” Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex.

1993) (quoting Blum, 457 U.S. at 1004); see also Jackson v.

Metro. Edison Co., 419 U.S. 345, 357 (1974). 

Hall alleges a deprivation of property without an adequate

opportunity to be heard. To the extent he attempts to raise a

federal civil rights claim, pursuant to 42 U.S.C. § 1983 and this

Court’s federal question jurisdiction, see 28 U.S.C. § 1331, such

a claim would arise under the Fourteenth Amendment to the United

States Constitution. Hall has not stated any facts to allow me

to infer that Mr. Ross was, at any time he is alleged to have

violated Hall’s constitutional rights, acting under color of

state law or could otherwise be considered to be a state actor. 

Accordingly, the federal constitution does not protect Hall from 

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his actions. I recommend therefore that the federal

constitutional claims in this action be dismissed on that basis.

II. State Law Claims

By alleging that he is a citizen of the State of New York

and that his damages exceed $75,000, I presume that Hall is

attempting to bring state law claims here, pursuant to the

diversity jurisdiction of this Court. See 28 U.S.C. § 1332

(establishing the jurisdiction of the federal district courts

over actions based on state law where the parties are of diverse

citizenship and the amount in controversy exceeds $75,000). Hall

alleges that defendant is a citizen of New Hampshire, while he is

a citizen of New York, and that the amount in controversy exceeds

$75,000.

Hall alleges that he is a citizen of New York by virtue of

his present incarceration in a New York prison. “For purposes of

federal diversity jurisdiction, an individual's state citizenship

is equivalent to domicile.” Smith v. Cummings, 445 F.3d 1254,

1259 (10th Cir. 2006) (citing Crowley v. Glaze, 710 F.2d 676, 678

(10th Cir. 1983). “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

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incarcerated in another state.” Smith, 445 F.3d at 1260. Here,

the record suggests that Hall was a citizen of New Hampshire

prior to his incarceration in New York, therefore, he is presumed

to be a citizen of New Hampshire for purposes of establishing

domicile. “The presumption, however, is rebuttable.” Id. If,

for example, a prisoner intends to live in another state upon

release and is assigned to a prison in that state, his domicile

may become that state. See id. Factors to be considered in

determining domicile include the prisoner's declaration of his

intentions and the manner in which he has ordered his personal

and business transactions and any other factors that are relevant

to the corroboration of his statements. Id. Hall has neither

alleged that he intends to live in New York after he is released

nor identified any factors indicating or supporting such an

intent. Consequently, he is presumed to be a resident of New

Hampshire, the state in which he was incarcerated before the New

Hampshire Department of Corrections occasioned his transfer to

New York. 

As the parties in this action are both New Hampshire

residents, they are nondiverse. Hall has therefore failed to

plead diversity jurisdiction under 28 U.S.C. § 1332, and I

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recommend that any state law claim he intended to bring, relying

on the existence of diversity jurisdiction, be dismissed.

Conclusion

For the foregoing reasons, I recommend that this action be

dismissed in its entirety, as Hall has failed to state any claim

upon which relief might be granted. See LR 4.3(d)(2)(A). Any

objections to this report and recommendation must be filed within

ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 24, 2009

cc: Kevin Hall, pro se

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