United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION I. INTRODUCTION AND PROCEDURAL
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE
a civil action which was filed on December 1, 2017, by the
Plaintiff, Freddie Wilson, against the Defendant,
Navient/ECMC Student Loan Providers (“Navient”).
(Doc. 1). In the original Complaint, the Plaintiff alleged
that Navient sent him a notice that his student loan account
was “in collections and the collections fees was [sic]
asses[ed] at $6, 281.98 and there was another fee associated
with this account in the amount of $1, 880.75.” (Doc. 1
at 2). The letter also stated that the Plaintiff's
account was “in arrears to the tune of four years and .
. . is in collections.” (Doc. 1-1 at 2). The Plaintiff
also alleged that
the defendant failed to follow the laws enacted by Congress
and properly serve and call the plaintiff as required by law
and once it failed to follow the law the defendant did not
have the right to charge the plaintiff.”
(Doc. 1 at 2). Wilson then claimed that the Defendant was
liable for deprivation of his Constitutional right to due
process (Count One); “deceptive trade practices”
(Count Two); and defamation (Count Three).
Plaintiff also sought to proceed in forma pauperis
(“IFP”), and continues to do so. (Docs. 5, 10).
When, as here, an IFP affidavit is sufficient on its face to
demonstrate economic eligibility for IFP status, the court
must “first docket the case and then proceed to the
question of whether the asserted claim is
frivolous.” Martinez v. Kristi Kleaners,
Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (quoting
Watson v. Ault, 525 F.2d 886, 891 (11th Cir. 1976)).
“An issue is frivolous when it appears that ‘the
legal theories are indisputably meritless.'”
Ghee v. Retailers Nat. Bank, 271 F. App'x 858,
859 (11th Cir. 2008) (quoting Carroll v. Gross, 984
F.2d 392, 393 (11th Cir. 1993)). In other words, an IFP
action is frivolous “if it is without arguable merit
either in law or fact .... [A]rguable means capable of being
convincingly argued.” Id. at 859-60 (citing
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001), and Sun v. Forrester, 939 F.2d 924, 925 (11th
Cir. 1991)) (internal quotations and citations omitted).
Court conducted a frivolity review and dismissed Count One
with prejudice. (Doc. 16 at 8). It also noted that
“[t]he Complaint, as currently pleaded, is deficient
because jurisdiction [under 28 U.S.C. § 1332] is
the Plaintiff alleges only that he is a
“resident” of the state of Alabama. Furthermore,
[a] prisoner's place of incarceration does not establish
citizenship. Polakoff v. Henderson, 370 F.Supp. 690,
693 (N.D.Ga.), aff'd, 488 F.2d 977 (5th Cir.1974). A
prisoner's citizenship is determined by his domicile
prior to incarceration. Polakoff, 370 F.Supp. at
693; Denlinger v. Brennan, 87 F.3d 214, 216 (7th
Cir.1996) (“A forcible change in a person's state
of residence does not alter his domicile; hence the domicile
of [a] prisoner before he was imprisoned is presumed to
remain his domicile while he is in prison.”); Lima
v. Diaz, No. 95-734-CIV-T-17B, 1995 WL 75922, at *1
(M.D.Fla. Dec.18, 1995).
Jones v. Law Firm of Hill & Ponton, 141
F.Supp.2d 1349, 1355-56 (M.D. Fla. 2001) (Presnell, J.).
Absent an allegation by the Plaintiff that he is a
citizen of any state, jurisdiction has not
been properly pleaded and this Court cannot determine whether
it has jurisdiction. The Plaintiff will be allowed to
amend his Complaint to plead his citizenship. Thereafter, the
Court will reassess whether it has jurisdiction pursuant to
28 U.S.C. § 1332.
(Doc. 16 at 5-6) (footnote omitted) (emphasis in original).
The Court also ordered the Plaintiff to file an amendment to
his Complaint “which states the Plaintiff's state
of citizenship.” (Doc. 16 at 8).
though the Plaintiff alleged jurisdiction based on diversity
of citizenship, the court concluded that his claims
likely “aris[e] under the . . . laws . . . of the
United States, ” making jurisdiction proper under 28
U.S.C. § 1331. (Doc. 16 at 7-8). The Court ordered the
Plaintiff to file and amendment to his Complaint which
1) the exact federal laws and/or regulations which the
Defendant violated; and 2) how the Defendant violated each
law and/or regulation, including: a) the specific conduct
which was in violation of the law and/or regulation; b) the
names of the person or persons who engaged in the conduct
described; and 3) the specific date or dates on which each
instance of the conduct occurred. Furthermore, the amendment
must state: 1) whether his student loan account is actually
in arrears; 2) the date, if any, that it first became in
arrears; and 3) the date when any complained of actions by
the Defendant occurred.
(Doc. 16 at 8). The Plaintiff was also warned:
Should the Plaintiff fail to provide this amendment by
February 2, 2018, his case will be subject to being dismissed
without prejudice pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure for failure to prosecute and/or for