United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
this Court's Memorandum Opinion and Order dismissing
constitutional claims against Keefe Commissary Network
("KCN") and its employee, Lionel Lofland, Plaintiff
Osbaldo Berrios, a prisoner currently incarcerated at Eastern
Correctional Institution in Westover, Maryland, has filed a
Renewed Motion to Amend, ECF No. 40, in which he seeks to
establish diversity jurisdiction over a state law claim
against these Defendants. He has filed six additional motions
in support of that Motion. ECF Nos. 41, 42, 47, 48, 50, and
51. In response, KCN filed memoranda in opposition to the
motions. ECF Nos. 43 and 44. For the reasons set forth below,
Berrios's Renewed Motion to Amend, ECF No. 40, will be
GRANTED, and his remaining motions will be DENIED AS MOOT.
asserts claims arising from a July 8, 2015 assault against
him by Lofland, a KCN employee who was delivering commissary
items purchased by Berrios from KCN when he was an inmate at
the Maryland Correctional Institution Jessup
("MCIJ") in Jessup, Maryland. A dispute arose about
whether Berrios could refuse delivery of certain damaged
items. According to Berrios, Lofland threw items from the
order at Berrios including bottles of hot sauce, Pepsi,
shampoo, and hair conditioner. Berrios has asserted that
these bottles "exploded upon impact" and
"[h]ot sauce went everywhere." Am. Compl. at 2, ECF
No. 27-1. The contents of the hot sauce bottle spilled into
Berrios's eyes and ears, resulting in an ear infection
requiring hospitalization. The remaining items struck him in
the stomach and testicles and caused him "difficulty in
breathing and walking." Id. As relief, Berrios
seeks $5 million in damages.
neither KCN nor Lofland were state actors for purposes of
this incident, this Court granted KCN's Motion to Dismiss
Berrios's original claims brought pursuant to 42 U.S.C.
§ 1983. The Court noted that "Berrios may have
viable state law claims arising from the same set of
facts," but stated that "[a]bsent federal
jurisdiction .. . Berrios may not assert such claims in this
Court." Mem. Op. at 9, ECF No. 35. The Court then
granted Berrios leave to file a motion to amend the complaint
to assert "viable state law claims" based on
diversity jurisdiction. Id. In response to that
directive, Berrios filed the pending motions.
to the Court's instructions, Berrios has not attached a
proposed amended complaint to his Renewed Motion to Amend.
Nevertheless, because the viability of any amended complaint
depends on whether Berrios can establish diversity
jurisdiction for a state law tort claim, the Court considers
Berrios's arguments relating to jurisdiction.
jurisdiction exists where the matter in controversy exceeds
$75, 000 and where the case is between (1) "citizens of
different States"; or (2) "citizens of a State and
citizens or subjects of a foreign state." 28 U.S.C.
1332(a) (2012). To establish diversity jurisdiction, a
plaintiff must show that complete diversity exists between
all plaintiffs and all defendants, meaning that no plaintiff
is a citizen of the same state as any defendant. 28 U.S.C.
§ 1332; Lincoln Prop. Co. v. Roche,
546 U.S. 81, 89 (2005). Thus, the Court must undertake a
determination of the citizenship of all parties to this case.
Diversity of Citizenship
Renewed Motion to Amend, Berrios asserts that he is an
undocumented immigrant from Guatemala. Because he is not a
United States citizen, he is considered a "subject of
a foreign state," not a "citizen of a
State," for purposes of diversity jurisdiction. See
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828
(1989) (stating that "[i]n order to be a citizen of a
State within the meaning of the diversity statute, a natural
person must be both a citizen of the United States
and be domiciled within the State"). Foreign
nationals who are lawful permanent residents of the United
States are effectively treated as citizens of their state of
domicile for purposes of diversity. Under 28 U.S.C. §
1332, "the district courts shall not have original
jurisdiction under this subsection of an action between
citizens of a State and citizens or subjects of a foreign
state who are lawfully admitted for permanent residence in
the United States and are domiciled in the same State."
28 U.S.C. § 1332(a)(2). By its express terms, this
exception does not apply to undocumented immigrants because
they are not "lawfully admitted for permanent
residence." Id. Thus, Berrios must be
considered a citizen of Guatemala, not Maryland, for purposes
of diversity jurisdiction. See, e.g., Assaf v. Trinity
Med. Ctr., 696 F.3d 681, 685 n.l (7th Cir. 2012)
(stating that where the parties had agreed that the plaintiff
was not admitted to the United States as a permanent
resident, the court deemed him to be a citizen of Syria only,
not of his state of residence, Illinois); Collado v.
Cancel, No. 9:10-1870-MBS-RSC, 2010 WL 4038799, at *l-2
(D.S.C. Sept. 3, 2010) (holding that an incarcerated
undocumented prisoner was a citizen of the Dominican Republic
for purposes of diversity jurisdiction, and not of the state
where he was incarcerated or of the state where he lived
prior to being incarcerated), report and recommendation
adopted, No. CA 9:10-1870-MBS, 2010 WL 4038736 (D.S.C.
Oct. 14, 2010).
fact that Berrios is incarcerated in the State of Maryland
does not alter this analysis. Prisoners are presumed to
retain their pre-incarceration domicile, subject to a
demonstration that they have the intent to remain in the
state of incarceration or return to a different state.
See, e.g., Hall v. Curran, 599 F.3d 70, 72 (1st Cir.
2010) (finding that the plaintiffs domicile remained
unchanged because of the failure to rebut the presumption
that the prisoner remained a citizen of his state of domicile
before incarceration); Jones v. Hadican, 552 F.2d
249, 251 (8th Cir. 1977) (same); Stifel v. Hopkins,
477 F.2d 1116, 1119, 1126-27 (6th Cir. 1973) (finding that
the district court should assess the evidence of changed
domicile, including the prisoner's assertion that he
would never return to his prior domicile because of the
particularly heinous nature of his crime, which would subject
him to scorn and hostility in his former community); see
also Roberts v. Morchower, 956 F.2d 1163, 1992 WL 42885,
at *1 (4th Cir. 1992). Such an inquiry, however, is not
warranted where the prisoner is a foreign national not
admitted as a lawful permanent resident. See
Collado, 2010 WL 4038799, at *l-2. Even if such an
analysis were appropriate for undocumented immigrants, there
is no evidence that Berrios has renounced any intention to
return to Guatemala. The Court therefore concludes that for
purposes of diversity jurisdiction, Berrios is a citizen of
Guatemala, not of Maryland or any other state.
noted above, for purposes of diversity jurisdiction, an
individual is a citizen of the state where the person is
domiciled, which requires physical presence coupled with an
intent to make the state a home. See Mississippi Band of
Choctaw Indians v. Holyfield,490 U.S. 30, 48 (1989).
Berrios has alleged that Defendant Lofland is a citizen of
Maryland based on his residence in Glen Burnie, Maryland.
Although Lofland's residence alone is not enough to
establish that he is a citizen of Maryland, Defendants have
offered no evidence or argument to dispute the fact that