David Michael Roberts v. Michael Morchower

956 F.2d 1163, 1992 U.S. App. LEXIS 10572, 1992 WL 42885

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 4, 1992
• Docket: 91-7688
• Status: Unpublished

Opinion

956 F.2d 1163

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
David Michael ROBERTS, Plaintiff-Appellant,
v.
Michael MORCHOWER, Defendant-Appellee.

No. 91-7688.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 21, 1991.
Decided March 4, 1992.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-91-277-3)

David Michael Roberts, appellant pro se.

Samuel Vernon Priddy, III, Douglas Pendleton Rucker, Jr., Frank B. Miller, III, Sands, Anderson, Marks & Miller, Richmond, Va., for appellee.

E.D.Va.

AFFIRMED.

Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

David Michael Roberts brought this action against his attorney, Michael Morchower, seeking redress for emotional distress and monetary damages allegedly suffered as a result of Morchower's alleged malpractice in pursuing Plaintiff's civil rights complaint against Broward County, Florida police.

Morchower is a resident of Virginia. Roberts, although currently incarcerated in New Mexico, stated in his complaint that his home is in Virginia. For diversity jurisdiction purposes, a prisoner's domicile is presumed to be where he was domiciled prior to incarceration. Polakoff v. Henderson, 370 F.Supp. 690 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974). Although this presumption may be rebutted by an inmate's intention to change domicile, see Jones v. Hadican, 552 F.2d 249 (8th Cir.), cert. denied, 431 U.S. 941 (1977), Roberts has not pled such an intent on the face of his complaint. The district court properly dismissed the complaint for lack of jurisdiction under 28 U.S.C. § 1332 (1988), and we affirm.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.