UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Hall

v. Civil No. 08-cv-465-SM

Kevin Clark

REPORT AND RECOMMENDATION

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

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

false testimony against Hall at a criminal trial. 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, whether this Court has

jurisdiction over this matter, and whether the complaint seeks

monetary relief from a defendant who is immune from such relief. 

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

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

construes pro se pleadings liberally, however inartfully pleaded. 

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

Kevin Hall was charged with causing damage to his cell at

the Cheshire County House of Correction (“CCHC”) during his

detention there in 2004 and 2005. In support of the criminal

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142 U.S.C. § 1983 states, in relevant part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress. . . .

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charge against Hall, Kevin Clark, a corrections officer at the

CCHC, provided an affidavit to the prosecutor, and provided

testimony at trial. Hall states that Clark’s testimony

demonstrated that Clark was involved in a conspiracy with other

CCHC officials to have Hall wrongfully convicted and incarcerated

by intentionally providing false testimony against Hall.

Discussion

I. Federal Claim Under 42 U.S.C. § 1983

A government official may be held personally liable under 42

U.S.C. § 1983 if, acting under color of state law, the official

caused the deprivation of a federal constitutional or statutory

right. Kentucky v. Graham, 473 U.S. 159, 166 (1985).1 Hall

claims that the defendant is a person who was acting under color

of state law when he violated his constitutional rights. 

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Accordingly, Hall’s federal civil rights claim against Clark

arises under § 1983. 

“[W]itnesses are absolutely immune from damages liability

based on their testimony.” Briscoe v. LaHue, 460 U.S. 325, 326

(1983); see Young v. Knox County Deputy, 68 F.3d 455, *1 (1995)

(following Briscoe in finding no ability to recover damages in a

§ 1983 action from a witness who allegedly provided false

testimony). Accordingly, Hall’s claim for damages against Clark

for falsely testifying against him is barred, and I recommend

that it be dismissed.

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

relying on the existence of diversity jurisdiction in this matter

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 

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citizen of New York, and the amount alleged to be 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. Contrary to

Hall's assertions, however, his current incarceration in New York

does not establish his domicile for purposes of obtaining

diversity jurisdiction in this Court. “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

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

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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 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. 

Because 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

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

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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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