Opinion
7:19-CV-159-WLS-TQL
07-07-2020
WASEEM DAKER, Plaintiff, v. E. LEE DAVIS, et al., Defendants.
RECOMMENDATION OF DISMISSAL
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Presently pending before the Court are an Amended Complaint (ECF No. 11) and Objections (ECF Nos. 9, 10) filed by pro se Plaintiff Waseem Daker. In the Eleventh Circuit, “[a]n amended complaint supersedes the initial complaint unless the amended complaint ‘specifically refers to or adopts' the initial complaint.” Schreane v. Middlebrooks, 522 Fed.Appx. 845, 847-48 (11th Cir. 2013) (quoting Varnes v. Local 91, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982)). Additional factual allegations contained in an objection to a recommendation of dismissal can also be construed as amendments to a complaint. See, e.g., Newsome v. Chatham Cnty. Det. Ctr., 256 Fed.Appx. 342, 344 (11th Cir. 2007) (per curiam) (holding that district court should have construed additional factual allegations in plaintiff's objection to recommendation of dismissal as a motion to amend the complaint and granted it). Accordingly, the undersigned WITHDRAWS the Order and Recommendation dated January 30, 2020 (ECF No. 4) and enters the following Recommendation in its place, considering the facts in the Amended Complaint and Plaintiff's Objections. It is again RECOMMENDED that Plaintiff's claims be DISMISSED without prejudice.
Plaintiff has the right to amend his Complaint once as a matter of course. See Fed. R. Civ. P. 15(a).
PRELIMINARY SCREENING
I. Standard of Review
The Prison Litigation Reform Act (“PLRA”) obligates the district courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Factual Allegations
According to the Amended Complaint, on August 6, 2019, Plaintiff sent Defendant Valdosta State University (“VSU”) a request under Georgia's Open Records Act (“ORA”), O.C.G.A. §§ 50-18-70 et seq., seeking “[a] copy of all songs in rotation or on the playlist or in the song bank for the Valdosta State University radio station, WVVS, 90.9 FM, the ‘Voice of Valdosta State.'” Am. Compl. 5, ECF No. 11. On August 9, 2019, Defendant Davis, the chief legal affairs officer of VSU, responded that he anticipated providing a response to Plaintiff by August 16, 2019. Id. On that date, Defendant Davis provided Plaintiff with copies of the current playlists for WVVS and further advised Plaintiff, “‘It appears that you have requested copies of the song audio files themselves. These songs are protected under copyrights held be [sic] their respective owners, and we are not at liberty to make copies of them. The audio files can be made available for inspection by pre-arrangement with this office.'” Id. (alteration in original).
On August 21, 2019, Plaintiff sent another ORA request to Defendant Davis and VSU claiming that the song audio files were not exempt from disclosure for at least five reasons: (1) many of the songs were not actually copyrighted; (2) even if the songs were copyrighted, the ORA did not have a specific exemption for the copyrighted audio files at issue; (3) that the requested songs had been publicly released and were therefore not exempt from disclosure pursuant to O.C.G.A. § 50-18-72(a)(35); (4) that federal copyright law would not protect the audio files from copying because of the “fair use” doctrine; and (5) that because Plaintiff was incarcerated, in-person inspection of the audio files at issue could not serve as an adequate substitute for duplication of the files. Id. at 6-8.
On August 23, 2019, Defendant Davis again responded to Plaintiff, reiterating his position that the “‘audio files of songs played on WVVS[] are subject to federal copyright'” and thus VSU was “not at liberty to provide [Plaintiff] a copy of these and will not do so.'” Id. at 8. Plaintiff then filed the above-captioned action, contending that Defendants' refusal to provide him with copies of the requested songs violated his rights under the First and Fourteenth Amendments to the United States Constitution and his statutory rights under the ORA. Plaintiff seeks declaratory relief and injunctive relief; civil penalties under the ORA; nominal, compensatory, and punitive damages; costs; and “other such relief that the court deems necessary or appropriate” as a result of these alleged violations. Id. at 11-14.
III. Plaintiff's Claims
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In other words, federal courts are only permitted to hear cases authorized by the Constitution or the laws of the United States. Id. A federal court thus has an obligation to ensure that it has subject matter jurisdiction over each case or controversy that appears before it. See, e.g., Miccosukee Tribe of Indians of Fla. v. Kraus-Anderson Constr. Co., 607 F.3d 1268, 1273 (11th Cir. 2010). If, at any time, the court finds “that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). While Plaintiff should be given notice and an opportunity to respond where the Court intends to dismiss his claims for lack of jurisdiction, an evidentiary hearing is not required. Cf., e.g., Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011) (“When resolving factual disputes underlying a Rule 12(b)(1) motion, a court may consider oral evidence along with written, but an evidentiary hearing is not required.” (internal quotation marks omitted)).
Plaintiff has proffered several different bases for jurisdiction. As discussed in more detail below, however, Plaintiff has not stated an actionable § 1983 claim in this case. If Plaintiff's § 1983 claims are dismissed, Plaintiff has failed to allege facts sufficient to show that this Court has original jurisdiction over his remaining claims, and the Court could not exercise pendent jurisdiction over any of Plaintiff's state-law claims. As such, his Amended Complaint should be dismissed without prejudice.
A. Federal-Question Jurisdiction
1. Section 1983 Claims
Plaintiff first asserts that the Court has federal-question jurisdiction in this case because he has raised claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights and “because Defendants have invoked a federal defense to Plaintiff's state law claims by claiming that some of the requested records at issue in this case are protected by federal copyright law, which Plaintiff disputes.” Am. Compl. 2, ECF No. 11. These claims lack merit.
Plaintiff's § 1983 claims are primarily based on his contention that “Defendants' refusal to provide Plaintiff a copy of each of the 4, 803 songs available in response to his first ORA Request . . . violates his right under the First and Fourteenth Amendments to receive information and ideas.” Am. Compl. 9, ECF No. 11. As a general matter, it is true “that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). This protection prohibits the government from (1) infringing upon private expression; (2) “controlling or penalizing expression which has been singled out by government because of the expression's viewpoint”; and (3) “taking certain actions which impermissibly constrict the flow of information or ideas.” Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033, 1037-38 (Former 5th Cir. 1982) (en banc).
Though Plaintiff bears the burden of showing that the First Amendment applies, see United States v. Gilbert, 920 F.2d 878, 883 (11th Cir. 1991), it is unclear from Plaintiff's allegations how Defendants in this case engaged in any of these prohibited actions. At most, Plaintiff appears to suggest that Defendants' refusal to produce the song files has impermissibly limited his access to the information or ideas contained therein. But numerous courts have held that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control.” Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion); McBurney v. Young, 569 U.S. 221, 232-33 (2013) (“This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“A litigant seeking release of government information under FOIA . . . relies upon a statutory entitlement . . . and not upon his constitutional right to free expression.”); Spottsville v. Barnes, 135 F.Supp.2d 1316, 1323 (N.D.Ga. 2001) (“In short, there is no First Amendment right of access to public information.”); Brooks v. Vallejo City Unified Sch. Dist., No. 2:12-cv-1466-GEB-EFB PS, 2013 WL 943460, at *4 (E.D. Cal. Mar. 11, 2013) (dismissing plaintiff's § 1983 claims based on defendants' alleged violations of California open records act law). Plaintiff's allegations that Defendants have violated his right to receive information and ideas therefore fail to state a cognizable constitutional claim.
Plaintiff also contends that the Georgia ORA creates a liberty interest in the production of the songs in this case, and therefore “Defendants' refusal to provide Plaintiff a copy of each of the 4, 803 songs available in response to his first ORA Request violates his rights under the Fourteenth Amendment Due Process Clause.” Am. Compl. 9-10, ECF No. 11. These allegations also fail to state a cognizable § 1983 claim.
The Supreme Court has identified two different kinds of constitutional protection provided by the Fourteenth Amendment's due process clause: procedural due process and substantive due process. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc). Although Plaintiff does not specify whether he intends to raise a procedural due process claim or a substantive due process claim, he has failed to allege facts sufficient to support either.
A substantive due process claim requires an allegation that governmental conduct “shocks the conscience” or “interferes with rights implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987). Where the conduct is prohibited by “an explicit textual source of constitutional protection, ” however, “that Amendment, not the more generalized notion of ‘substantive due process,' must be the guide for analyzing these claims.” Graham v. Connor, 490 U.S. 386, 395 (1989). Even a liberal reading of Plaintiff's Amended Complaint reveals no conscience-shocking conduct by Defendants, and the only rights “implicit in the concept of ordered liberty” mentioned by Plaintiff are his First Amendment rights. Because “defendants' purported actions would not . . . be sufficiently shocking to state due process claims” absent the alleged First Amendment violations, Plaintiff's “substantive due process claim is either subsumed in [his] more particularized allegations, or must fail.” Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005); see also Graham, 490 U.S. at 395. Either way, Plaintiff's substantive due process claims are subject to dismissal.
To the extent Plaintiff is alleging a procedural due process claim, “[a] procedural due process violation is only cognizable under § 1983 ‘when the state refuses to provide a process sufficient to remedy the procedural deprivation.'” Collier v. Conway, 672 Fed.Appx. 950, 952 (11th Cir. 2016) (per curiam) (quoting McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)). The Georgia ORA provides a remedy for alleged noncompliance by permitting the aggrieved party to file a lawsuit “to enforce compliance with the provisions of [the ORA].” O.C.G.A. § 50-18-73(a). Plaintiff does not allege that this remedy is insufficient to vindicate his rights under the ORA; indeed, this action appears to be his attempt to do so. See, e.g., Am. Compl. 12, ECF No. 11 (seeking civil penalties pursuant to O.C.G.A. § 50-18-73 and § 50-18-74). Plaintiff therefore cannot state a procedural due process claim either.
Perhaps more fundamentally, however, what Plaintiff is really saying is that Defendants' alleged refusal to comply with the ORA amounts to an independent constitutional violation. That is not the law. To state a claim for relief under § 1983, a plaintiff must allege that a state actor deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States. Hale, 50 F.3d at 1582. A violation of state law, standing alone, therefore fails to state a claim for federal relief under § 1983. See, e.g., Garvie v. City of Fort Walton Beach, Fla., 366 F.3d 1186, 1191 (11th Cir. 2004) (“[I]n general, allegations that local officials failed to comply with state laws are not federal constitutional claims.”); see also Teems v. Wingfield, No. 5:17-cv-00171-MTT-CHW, 2018 WL 1474610, at *8 (M.D. Ga. Jan. 18, 2018) (finding that prisoner failed to state actionable constitutional claim based on local officials' refusal to respond to ORA request), adopted by 2018 WL 1474542 (M.D. Ga. Mar. 26, 2018). For all these reasons, Plaintiff's § 1983 claims should be dismissed without prejudice, and any such claims cannot serve as a basis for federal question jurisdiction.
2. Assertion of Copyright Defense
Plaintiff also claims that the Court has federal question jurisdiction over his claims because Defendants declined to comply with Plaintiff's ORA request based on federal copyright law, and he anticipates that Defendants will raise this same defense in the presently-pending action. Am. Compl. 2, ECF No. 11. It is clear, however, that “a federal district court's original federal question jurisdiction must be posited upon the plaintiff's pleading of his own case, and not by defendant's response or even plaintiff's anticipation of a federal element in that response.” Bd. of Ed. of City of Atlanta v. Am. Fed'n of State, Cnty. & Mun. Emp., AFL-CIO, 401 F.Supp. 687, 690 (N.D.Ga. 1975); see also Miccosukee Tribe, 607 F.3d at 1273 n.8 (noting that under the “well-pleaded complaint rule, ” a court must look only to the allegations in the complaint to determine whether federal question jurisdiction exists; the court may not consider an affirmative defense that arises under federal law). Thus, Plaintiff's anticipation of Defendants' defenses also fails to serve as a basis for federal question jurisdiction in this case.
B. Jurisdiction Pursuant to 28 U.S.C. § 1338(a)
Plaintiff also alleges that the Court has jurisdiction pursuant to 28 U.S.C. § 1338(a), which gives the district courts “original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights, and trademarks.” 28 U.S.C. § 1338(a); see Am. Compl. 2, ECF No. 11. Plaintiff does not allege any particular “Act of Congress” under which his claims arise; the only potential basis for this allegation that can be gleaned from the Amended Complaint appears to be Plaintiff's anticipated assertion of Defendants' copyright defense. But the “well-pleaded complaint” rule described in the preceding paragraph applies with equal force in the § 1338 context. “Under the well-pleaded complaint rule, as appropriately adapted to § 1338(a), whether a claim ‘arises under [copyright] law must be determined from what necessarily appears in the plaintiff's statement of his own claim . . ., unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 809 (1988) (internal quotation marks omitted). “Thus, a case raising a federal [copyright law] defense does not, for that reason alone, arise under [copyright] law, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” Id. (internal quotation marks omitted). Accordingly, Plaintiff's assertion that § 1338(a) provides an independent basis for this Court's jurisdiction also fails.
C. Diversity Jurisdiction
Plaintiff next alleges that the Court has diversity jurisdiction in this case pursuant to 28 U.S.C. § 1332(a)(1), which provides the district courts with “original jurisdiction of all civil actions where the amount in controversy exceeds the sum or value of $75,000 . . . and is between . . . citizens of different States[.]” “When a plaintiff files suit in federal court, she must allege facts that, if true, show federal subject matter over her case exists.” Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir. 2013). With respect to diversity jurisdiction, “[t]hose allegations . . . must include the citizenship of each party, so that the court is satisfied that no plaintiff is a citizen of the same state as any defendant.” Id. “A party must plead citizenship distinctly and affirmatively.” Tucker v. Thomasville Toyota, 623 F.Supp.2d 1378, 1380 (M.D. Ga. 2008). An assertion that a party simply “resides” in a particular state is not sufficient to establish state citizenship, or “domicile, ” for diversity purposes. See Travaglio, 735 F.3d at 1267-68. “This is because domicile is not always the same as residence, as a person may reside in one place but be domiciled elsewhere.” Tucker, 623 F.Supp.2d at 1381.
A domicile is a person's “true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.” McCormick v. Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (per curiam) (internal quotation marks and citation omitted). A person's domicile is thus “determined by two elements: (1) physical presence within a state; and (2) the mental intent to make a home there indefinitely.” McDonald v. Equitable Life Ins. Co. of Iowa, 13 F.Supp.2d 1279, 1280-81 (M.D. Ala. 1998). The state in which a person resides is generally presumed to be that person's domicile, and once that person “has established a domicile, he remains a citizen there until he satisfies the mental and physical requirements of domicile in a new state.” Audi Performance & Racing, LLC v. Kasberger, 273 F.Supp.2d 1220, 1226 (M.D. Ala. 2003) (internal quotation marks omitted); see also McDonald, 13 F.Supp.2d at 1281. A prisoner is presumed to retain the domicile he had prior to incarceration. Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga. Aug. 3, 1973), aff'd 488 F.2d 977 (5th Cir. 1974) (affirming “for the reasons stated in the district court's said opinion”).
In this case, Plaintiff concedes that “he resided in Georgia at the time of his arrest.” Objs. 23, Apr. 30, 2020, ECF No. 10. Thus, he is presumed to be a Georgia citizen. Audi, F.Supp.2d at 1226; Polakoff, 370 F.Supp. at 693. But Plaintiff also contends that he was formerly domiciled in Florida and never formed the requisite mental intent to change his place of domicile from Florida to Georgia; he thus argues that he remains “a domiciliary of the State of Florida, ” and diversity jurisdiction is appropriate. See Am. Compl. 3, ECF No. 11. To support his contention that he was a Florida citizen at the time of his arrest, Plaintiff states:
. He resided in Florida continuously from shortly after his birth in 1977 until about 1990;
. His family owned a home, business, and multiple properties in Florida;
. His brothers were born in Florida;
. He became a permanent resident of the United States by obtainifng his “green card” in Florida;
. He went to school in Florida; and
. He and his family have maintained “community ties” via their relationships with extended family and friends, their ownership of property and a business in Florida at some unspecified time, and their “periodic[]” visits to Florida.Objs. 23-24, Apr. 30, 2020, ECF No. 10. Plaintiff further contends that he “and his immediate family always intended to return to Florida, ” that “his parents did in fact return to Florida” after Plaintiff was incarcerated, and that he intends to live with his parents “upon his release from prison.” Id. at 24.
Even taking these allegations as true, Plaintiff has not provided the Court with enough “positive evidence” to rebut the presumption that Plaintiff was a Georgia resident at the time he was incarcerated and is thus domiciled in Georgia. McDonald, 13 F.Supp.2d at 1281 (“In determining domicile, a court should consider both positive evidence and presumptions.”). As an initial matter, Plaintiff's assertion that he is a Florida domiciliary is entitled to “little weight” because it is self-serving. See, e.g., Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011) (“Courts generally give little weight to a party's profession of domicile; they do so because these declarations are often self-serving.”). Plaintiff moreover acknowledges that he left Florida thirty years ago when he was approximately thirteen years old, admits that he has lived his entire adult life in Georgia, and offers no facts tending to show that he personally-as opposed to “he and his family”-had formed a specific intention to establish domicile in Florida at any time prior to his incarceration.
At best, Plaintiff suggests that he and his family members may have had a “floating intention” to return to Florida at some unspecified time in the future. But is well-established that this type of “‘floating intention' to return to a former domicile does not prevent the acquisition of a new domicile.” Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983); see also Gilbert v. David, 235 U.S. 561, 570 (1915) (holding that party acquired new domicile when he moved there with his family and purchased a home, owned other real estate there, and spent ten years there without returning to his previous domicile “except for a short time, and then for a temporary purpose”); Gates v. C.I.R., 199 F.2d 291, 294 (10th Cir. 1952) (“If a person has actually removed from one place to another with an intention of remaining in the latter for an indefinite time and as a place of fixed present domicile, such place will be deemed his place of domicile, notwithstanding he may entertain a floating intention to return to his previous domicile at some future time.”); Eastep v. Newman, No. 1:12-cv-102 (WLS), 2013 WL 1721609, at *5 (M.D. Ga. Apr. 22, 2013) (finding that plaintiff's “floating intention or vague desire to relocate” could “not defeat a finding of domicile”). It should also be reemphasized here that even Plaintiff's parents did not act upon this “floating intention” for more than two decades, as they did not relocate to Florida until after Plaintiff's 2010 arrest. Am. Compl. 24, ECF No. 11. Plaintiff has simply not provided the Court with information sufficient to overcome the presumption that he is a citizen of Georgia because he was a Georgia resident at the time of his arrest.
Furthermore, filings in Plaintiff's other cases contain additional objective facts that support the presumption that Plaintiff is a Georgia citizen. “[O]bjective facts” that a court may examine to determine whether domicile has been established in a particular state include, but are not limited to, “home ownership and ownership of other real property . . . [and] location of one's household furnishings.” See Audi, 273 F.Supp.2d at 1226. Plaintiff averred in at least one other case that he owned a home in Lawrenceville, Georgia from October of 2009 until August of 2018 and incorporated a business in Georgia “[p]rior to his arrest in 2010[.]” Pl.'s Resps. To Defs.' Rogs. 2-4, ECF No. 313 in Daker v. Warren, Civil Action No. 1:10-cv-02084-WMR-CMS (N.D.Ga. May 2, 2019). Plaintiff also averred that his home contained valuable household furnishings and personal property, including “a pool table, expensive crystal chandelier, ” CDs, video games, books, “a rare, collectible video game console” worth nearly $15,000, and other electronics. See Compl. 10, 13-14, ECF No. 1 in Daker v. Daker, Civil Action No. 1:19-cv-01636-WMR-CMS (N.D.Ga. Apr. 10, 2019). Thus, Plaintiff's home ownership and the location of his personal property and home furnishings support the presumption that Plaintiff is a Georgia domiciliary.
A party's employment is also relevant to determination of domicile. See Audi, 273 F.Supp.2d at 1226. The transcript of Plaintiff's bond hearing in February of 2010 contains the testimony of Plaintiff's brother, who averred that if Plaintiff were released on bond he would be living with his two brothers, his mother, and his father in the home Plaintiff owned in Lawrenceville, Georgia and would be working as the general manager at the furniture store owned by his family. Attach. 1 to Resp. 40-41, ECF No. 4-1 in Daker v. Warren, Civil Action No. 1:10-cv-03815-RWS-ECS (N.D.Ga. Jan. 7, 2011). Plaintiff was also employed at the store before his 2010 arrest, and the store had “been in existence for a decade” at the time of the bond hearing. Id. at 52. It is significant that Plaintiff did not move to Florida after he was released from prison in 2005; instead, he purchased a home in Georgia and chose to work in his family's well-established Georgia furniture store until his 2010 arrest. Plaintiff's employment history thus also supports the presumption that Plaintiff is a Georgia citizen. Overall, these specific facts and objective acts-rather than Plaintiff's “self-serving statements”-show that Plaintiff was domiciled in Georgia at the time he was arrested. See, e.g., Deckers v. Kenneth W. Rose, Inc., 592 F.Supp. 25, 27-28 (M.D. Fla. 1984) (noting that plaintiff's “self-serving statements” that he considered himself a Georgia citizen “must be viewed in light of objective acts indicative of actual intent”).
Plaintiff has also failed to allege facts sufficient for the Court to make a finding that he changed his domicile from Georgia to Florida during his incarceration. “Once a person establishes a domicile, it continues until the person establishes a new domicile.” Audi, 273 F.Supp.2d at 1226 (emphasis in original). To establish a change in domicile, a party must make “[a] concurrent showing of (1) physical presence at the new location with (2) an intention to remain there indefinitely.” McCormick, 293 F.3d at 1257-58 (internal quotation marks and citation omitted). The burden placed on a party trying to show a change of domicile is relatively heavy due to a presumption favoring an established domicile over a new one. See Audi, 273 F.Supp.2d at 1226. As previously noted, Plaintiff alleges that he intends to reside in Florida when he is released from prison. But Plaintiff has not-and cannot-allege he was ever physically present in Florida after he was incarcerated in Georgia in 2010. Absent facts establishing Plaintiff's physical presence in Florida, Plaintiff cannot establish that he changed his domicile to that jurisdiction.
In his Amended Complaint, Plaintiff references a handful of cases that stand for the proposition that an inmate does not automatically acquire a new domicile in the state of his incarceration simply because he has been involuntarily confined there. See Am. Compl. 3, ECF No. 11; see also, e.g., Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972) (per curiam) (“For purposes of the venue statute, ‘One does not change his residence to the prison by virtue of being incarcerated there.'” (citation omitted)); Flanagan v. Shively, 783 F.Supp. 922, 935 (M.D. Pa. 1992) (“An inmate does not become a resident of a state merely by virtue of his incarceration there if he was a resident of another state before his incarceration and there is no indication that he intends to relocate to the state of incarceration upon his release.”), aff'd 980 F.2d. 722 (3d Cir. 1992). These cases are entirely consistent with the finding of the undersigned, above, that Plaintiff must establish both a physical presence in Florida and an intent to remain there indefinitely to establish his domicile in that jurisdiction. Though a prisoner may be physically present in the state of incarceration, he does not necessarily have the intent to change his domicile to that location or to remain there indefinitely. If the prisoner manifests the intent to remain in the state of his incarceration after his release, however, then he can establish both elements required to change his domicile. See, e.g., Stifel v. Hopkins, 477 F.2d 1116, 1124 (6th Cir. 1973) (holding that a “prisoner . . . should not be precluded from showing that he has developed the intention to be domiciled at the place to which he has been forced to remove[, ]” i.e., the place of his incarceration). In this case, Plaintiff's inability to establish a physical presence in Florida while he is incarcerated in Georgia prevents him from changing his domicile to Florida regardless of his purported intent to relocate there if he is released. Plaintiff thus cannot establish diversity jurisdiction in this case.
IV. Conclusion
In accordance with the foregoing, it is RECOMMENDED that Plaintiff's § 1983 claims be DISMISSED without prejudice. With respect to Plaintiff's remaining claims, it is found that Plaintiff has not alleged facts sufficient to show any other basis for the Court's jurisdiction exists in this case. Absent a basis for original jurisdiction in this case, the Court would have no power to exercise supplemental jurisdiction over any of Plaintiff's state law claims. See 28 U.S.C. § 1367(a). Accordingly, it is RECOMMENDED that Plaintiff's Amended Complaint be DISMISSED without prejudice.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable W. Louis Sands, Senior United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED.