United States District Court, D. Maryland
SAVINO BRAXTON, Plaintiff.
ARCANGELO M. TUMINELLI, Defendant.
K. Bredar Chief Judge.
Braxton, a federal inmate currently confined at the Federal
Correctional Institution in Fort Dix, New Jersey, filed this
complaint, as supplemented, along with Motions to Proceed in
Forma Pauperis. Because he appears indigent, the Motions (ECF
2 & 6) shall be granted. Braxton brings this
case against his former defense attorney. Arcangelo M.
Tuminelli for conduct undertaken during the prosecution of
United Slates v. Braxton, Criminal No. JKB-09-478
(D. Md.). ECF 1. Braxton invokes this court's
diversity jurisdiction under 28 U.S.C. § 1332 and raises
several state tort claims. Id. at 2, 10-18. He also
invokes this court's federal question jurisdiction under
28 U.S.C. § 1331 by indicating the case is filed
pursuant to 42 U.S.C. § 1983 and by alleging
constitutional violations. Id. at 2. 19.
Braxton's federal prosecution, the question of the drug
quantity arose. ECF 1 at p. 4. Braxton claims that at his
initial sentencing Tuminelli represented to the sentencing
court that the drugs had been reweighed and found to be one
kilogram or more, in line with the representation provided by
the Government. ECF 1 at p. 5. Braxton's guilty plea was
vacated on appeal. Id. at pp. 6-7. At his retrial.
Braxton again pursued the drug weight discrepancy
(id., at 7) and sought to have Tuminclli testify
regarding the reweighing of the drugs to demonstrate that he
had always challenged the drug quantity and that the weight
of the drugs remained uncertain. Id. Prior to
testifying. Tuminelli emailed the prosecutor and advised that
the drugs had not been reweighed as represented by him to the
Court at sentencing." Id. at p. 8. As a result, the
trial court refused to allow Tuminelli to testify on
Braxton's behalf regarding the alleged drug weight
discrepancy. Id. The prosecutor argued during
closing that, as the drugs were not reweighed. there was no
discrepancy in their weight. Id.
courts are courts of limited jurisdiction and "may not
exercise jurisdiction absent a statutory basis."
Exxon Mobil Corp. v. Allaputtah Servs., Inc., 545
U.S. 546. 552 (2005). They "have an independent
obligation to determine whether subject-matter jurisdiction
exists, even when no party challenges it." Hertz
Corp. v. Friend, 559 U.S. 77, 94 (2010). Moreover, under
the provisions of 28 U.S.C. § 1915(e)(2). a case shall
be dismissed at any time if the court determines that (A) the
allegation of poverty is untrue; or (B) the action or appeal
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
core, a civil rights action under 42 U.S.C. § 1983 is
directed to unlawful conduct under color of law. See
Owens v. Baltimore Slate's Attorney Office, 767 F.3d
379 (4th Cir. 2014). Section 1983 of Title 42. United States
Code, provides, in 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
1983 "Ms not itself a source of substantive rights.'
but merely provides "a method for vindicating federal
rights elsewhere conferred.'" Albright v.
Oliver, 510 U.S. 266. 271 (1994) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)).
civil rights claim against Tuminelli is subject to dismissal.
Defense attorneys do not act under color of state law even if
they are appointed by the court. See Deas v. Potts,
547 F.2d 800, 800 (4th Cir. 1976): see also Hall v.
Quillen, 631 F.2d 1154. 1155-56 (4th Cir. 1980).
an attorney who conspires with a government official to
violate constitutional rights does act under color of state
law. evidence of the conspiracy is required. See Tower v.
Glover, 467 U.S. 914. 920 (1984): Phillips v.
Mashhurn, 746 F.2d 782. 785 (11th Cir. 1984) (holding
plaintiff must make more than naked assertion of conspiracy).
Here, generously construing Braxton's complaint, he has
done nothing more than make conditional claims concerning a
conspiracy. Such conclusional allegations are insufficient.
In light of the foregoing. Braxton's civil rights claim
against Tuminelli is dismissed pursuant to 28 U.S.C.§
far as Braxton invokes this court's diversity
jurisdiction, his claim is also subject to dismissal.
Diversity jurisdiction applies "where the matter in
controversy exceeds the sum or value of $75, 000. exclusive
of interest and costs, and is between . . . citizens of
different States." 28 U.S.C. § 1332(a)(1). Braxton
seeks damages in the amount of $2, 000, 000, see ECF
I at p. 23, which satisfies the amount-in-controversy
requirement. However, the Court's concern centers on
whether the citizenship of the parties is diverse.
prisoner's domicile for purposes of diversity
jurisdiction is presumed to be where he was domiciled prior
to his incarceration. Jones v. Hadican, 552 F.2d
549, 250-51 (8th Cir. 1977); Roberts v. Morchower,
956 F.2d 1163 (4th Cir. 1998) (Table). In order to rebut the
presumption, the plaintiff must "show truly exceptional
circumstances" and "introduce more than
Jones, 552 F.2d at 251 (quoting Slifel v.
Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973)). At this
stage of the proceedings, Braxton "must allege facts
sufficient to raise a substantial question about [his]
intention to acquire a new domicile." Id.:
Roberts, 956 F.2d at 1163. This he has failed to do. To
the contrary, Braxton acknowledges in his initial complaint
that "At all times relevant to this action. Plaintiff
was a long time resident and domicilary [sic] of
Baltimore City." ECF 1 at p. 1; ECF 4 at p. 1. Other
than indicating he is currently incarcerated in Fort Dix. New
Jersey, Braxton provides no other representations regarding
his domicile. Thus, the presumption that his domicile is
Baltimore, Maryland, remains. Tuminelli is also domiciled in
Maryland. As such, Braxton has failed to demonstrate
diversity of citizenship between himself and the defendant.
separate Order, which follows, the complaint shall be