Ferrer v. Dailey

Opinion

UNITED STATES COURT OF APPEALS Filed 12/20/96 TENTH CIRCUIT

ANDRES FERRER,

Plaintiff-Appellant, vs. No. 96-3155 (D.C. No. 96-3090-GTV) MICHAEL E. DAILEY, Attorney; (D. Kan.) MICHAEL E. DAILEY & ASSOCIATES, A Missouri Corporation; MICHAEL G. CHRISTENSEN, Assistant U.S. Attorney at Wichita; LEON J. PATTON, Assistant U.S. Attorney at Wichita,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before SEYMOUR, KELLY and LUCERO, Circuit Judges.**

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. Mr. Ferrer, an inmate incarcerated in Springfield, Missouri who appears pro se,

appeals from the dismissal of his action against his former defense attorney, the attorney’s

law firm and two assistant United States attorneys. He also moves for leave to proceed on

appeal without prepayment of costs or fees. 28 U.S. C. § 1915(a). The notice of appeal

in this case was filed April 25, 1996. Mr. Ferrer’s motion was supplemented by a

certified trust fund statement reflecting more than enough money to pay the filing fee and

an authorization for the agency holding him to disburse his funds for payment of our

filing fee. See 28 U.S.C. § 1915(a)(2), (b)(1). Therefore, we GRANT his motion to the

extent that we decide the case now, but direct the clerk to collect the entire filing fee. See

Ballard v. Burrage, 97 F.3d 382 (10th Cir. 1996); In re Procedures Regarding the Prison

Litigation Reform Act and the Antiterrorist and Effective Death Penalty Act, Emergency

General Order at 2 (10th Cir. Oct. 1, 1996) (available on Westlaw, 1996 US Order 96-41)

(“If the prisoner has sufficient funds, the entire filing fee shall be assessed

immediately.”).

Turning to the merits, the complaint in this case is for legal malpractice and civil

conspiracy founded on diversity jurisdiction, 28 U.S.C. § 1332. Perhaps relying on the

motion to proceed in forma pauperis which recites that the nature of this action is one for

“civil rights conspiracy,” R. doc. 1 at 1, the district court analyzed the case as arising

under § 1983. Regardless, the district court’s dismissal of the action must be affirmed.

28 U.S.C. § 1915(e)(2).

-2- Complete diversity is essential for diversity jurisdiction. See Owen Equip. &

Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978). It appears from the complaint that

complete diversity does not exist. For purposes of diversity jurisdiction, when an inmate

has been forcibly incarcerated in another state, the state of citizenship “should be the state

of which he was a citizen before he was sent to prison unless he plans to live elsewhere

when he gets out, in which event it should be that state.” Singletary v. Continental Ill.

Nat’l Bank & Trust Co., 9 F.3d 1237, 1238 (7th Cir. 1993); Sullivan v. Freeman, 944

F.2d 334, 337 (7th Cir. 1991). Given this rule, the allegations in the complaint suggest

that Mr. Ferrer should be considered a citizen of Kansas, although he is incarcerated in

Missouri. His complaint names several Kansas Defendants (as well as Missouri

Defendants), and the Kansas Defendants defeat diversity. Leave to amend to cure the

jurisdictional problem (if it can be cured) would be futile as discussed below..

Briefly, Plaintiff alleges that he was not properly advised concerning the double

jeopardy implications of a civil forfeiture subsequent to a guilty plea and that Defendants

conspired to deprive him of double jeopardy protection. Mr. Ferrer’s theory is no longer

viable. See United States v. Ursery, 116 S. Ct. 2135, 2149 (1996) (in rem civil forfeitures

are not punishment under the Double Jeopardy Clause). Moreover, we agree with the

district court that the prosecutors would be protected by absolute prosecutorial immunity

for their actions in negotiating the plea and an in rem forfeiture agreement with Mr.

Ferrer. See Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993) (“We have not

-3- retreated, however, from the principle that acts undertaken by a prosecutor in preparing

for the initiation of judicial proceedings or for trial, and which occur in the course of his

role as an advocate for the State, are entitled to the protections of absolute immunity.”);

Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990), cert. denied, 499 U.S. 976 (1991).

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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