United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE.
matter is before the court on a Report and Recommendation
(“R&R”) from United States Magistrate Judge
Gwynne Birzer. (Doc. 7.) The R&R recommends dismissal of
all claims asserted by Plaintiff in his complaint. Plaintiff
has filed an objection to the R&R and has also moved to
amend his complaint. (Docs. 9, 12.) For the reasons stated
below, the court DECLINES TO ADOPT the R&R and GRANTS IN
PART Plaintiff's motion to amend.
complaint, Plaintiff alleges that he is bringing several
state law claims against Defendants William Smithback and
Terry Justice due to the transfer of ownership of a house in
Wellington, Kansas. Both Defendants are citizens of Kansas.
Plaintiff is incarcerated in Texas but did not allege his
citizenship in his initial complaint. Plaintiff alleges that
this court has subject matter jurisdiction because the action
involves interstate commerce. Essentially, Plaintiff claims
that he had an interest in his deceased mother's estate,
which includes the real estate in Wellington. Plaintiff
alleges that Defendants demanded that Plaintiff execute a
contract selling his interest. Plaintiff reluctantly signed
the contract but has not been compensated. Plaintiff alleges
that Defendants do not intend to compensate him. Although
Plaintiff did not demand a specific amount in his complaint,
his civil cover sheet states that he seeks damages in the
amount of $36, 000. (Doc. 4.) Judge Birzer recommended
dismissal on the basis that the complaint does not establish
that the parties are diverse and Plaintiff seeks less than
$75, 000. (Doc. 7.)
has filed an objection and a motion to amend. Plaintiff's
motion to amend was filed after Magistrate Judge Birzer
issued the R&R. Due to the filing of the objection which
is handled by the undersigned, Magistrate Judge Birzer has
not considered Plaintiff's motion to amend. Plaintiff
contends in his objection that his amended complaint cures
the jurisdictional defect. Plaintiff's amended complaint
attempts to establish jurisdiction under both federal
question and diversity of citizenship. With respect to
federal question, Plaintiff's amended complaint adds
claims of fraud and embezzlement under 18 U.S.C. § 1962,
in addition to his previously stated state law claims. (Doc.
9, Exh. 1.) However, “criminal statutes do not give
rise to a private cause of action.” Mettlen v.
Kaste, No. 16-CV-4008-DDC-KGG, 2016 WL 5792774, at *3
(D. Kan. Oct. 4, 2016). Therefore, Plaintiff cannot attempt
to cure a defect in subject matter jurisdiction by asserting
claims under criminal statutes.
to diversity jurisdiction, Plaintiff's initial complaint
was defective as it did not identify the citizenship of
Plaintiff and failed to allege an amount in damages above the
statutory requirement. Plaintiff now pleads $150, 000 in
damages, as he seeks $75, 000 from each Defendant. This
allegation is sufficient to meet the minimum amount in the
diversity statute. 28 U.S.C. § 1332. Plaintiff must also
establish that the matter is between citizens of different
states. Defendants are citizens of Kansas. Plaintiff has
alleged in his amended complaint that he is a citizen of
Kansas and a citizen of Texas. Plaintiff alleges that he was
living in Texas prior to his incarceration and that he is
currently incarcerated in Texas. Plaintiff states that after
his release he intends to live in both Kansas and Texas.
evaluating diversity, a party's citizenship is determined
at the time the complaint is filed. Powder River Basin
Res. Council v. Babbitt, 54 F.3d 1477, 1484 (10th Cir.
1995). “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
v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006). Based
on the allegations in the amended complaint, Plaintiff was a
citizen of Texas prior to incarceration. Plaintiff remains
incarcerated in Texas. Therefore, for jurisdictional
purposes, Plaintiff is a citizen of Texas. The fact that
Plaintiff has alleged that he is a citizen of Kansas on the
basis that he intends to reside in Kansas upon his release
does not change Plaintiff's citizenship. In order to
establish a new domicile, Plaintiff must have residence in
the state and an intent to remain. Evans v. Am. Equity
Inv. Life Ins. Co., No. CV 07-2251-KHV, 2007 WL 9724335,
at *1 (D. Kan. July 27, 2007) (citing Crowley v.
Glaze, 710 F.2d 676, 678 (10th Cir. 1983)).
Plaintiff's proposed amended complaint establishes that
this court has jurisdiction under 28 U.S.C. § 1332 as
the parties are diverse. In light of the fact that Plaintiff
is proceeding pro se, and that “pro se parties
generally should be given leave to amend, ” the court
grants Plaintiff's motion to amend (Doc. 9) in part.
Jones v. Bowers, 737 Fed.Appx. 846, 848 (10th Cir.
2018). As a result, the court declines to adopt the report
discussed, Plaintiff's proposed amended complaint
includes claims that cannot be brought in a civil action.
Therefore, the court denies the filing of Plaintiff's
proposed amended complaint in its current form. The court
will grant Plaintiff's motion to amend his complaint.
Plaintiff is to file his amended complaint within 14 days of
being served with this order. Plaintiff's amended
complaint must include the allegations regarding citizenship
and his claims set forth in the initial complaint but exclude
the claims that rely on the criminal statutes. Nothing in
this order is intended to express any opinion on the merits
of Plaintiff's claims or the court's authority to
screen those claims pursuant to 28 U.S.C. § 1915(e)(2),
which the magistrate judge may do once the amended complaint
THEREFORE ORDERED this 3rd day of September 2019, that the
court DECLINES TO ADOPT the Report and Recommendation (Doc.
7) of Magistrate Judge Birzer in light of Plaintiff's
proposed amended complaint. Plaintiff's motion to amend
(Doc. 9) is GRANTED IN PART AND DENIED IN PART. Plaintiff is
to file an amended complaint that is compliant with this
order within 14 days of being served with this order.
 Plaintiff filed what was titled a
“Motion to Amend Complaint.” (Doc. 1.) In his
motion, Plaintiff states that he is filing the motion to
satisfy the concerns with his complaint as set forth in the
R&R. Because this court is to liberally construe a pro se
Plaintiff's filings, the court has treated the motion to
amend as both a motion to ...