                                                                                             FILED
                                                                                              JAN 2 5 2010
                            UNITED STATES DISTRICT COURT                                Clerk, u.s. District and
                                                                                          Bankruptcy Courts
                            FOR THE DISTRICT OF COLUMBIA



 Frankie McCoy,

         Plaintiff,

         v.                                         Civil Action No.          10 0142
 Byron H. McCoy,

         Defendant.




                                   MEMORANDUM OPINION

       The plaintiff has filed a pro se complaint and an application to proceed in fonna pauperis.

The Court will grant the application and will dismiss the complaint for lack of jurisdiction.

       The plaintiff has filed a complaint styled as a civil rights complaint under 42 U.S.C.

§ 1983. That statute applies only to persons acting under "color" of state law to deprive a person

of his or her civil rights. 42 U.S.C. § 1983. The complaint, however, involves a dispute between

brothers over their deceased parents' estate. See Compi. at 6. On its face, the complaint does not

state a claim that may be redressed under § 1983. It alleges no facts that even remotely suggest

that the defendant, plaintiffs younger brother, see id., is a state actor or that the defendant

deprived the plaintiff of any "rights, privileges, or immunities secured by the Constitution and

laws" of the United States. 42 U.S.C. § 1983. Therefore, the § 1983 claim will be dismissed

without prejudice for failure to state a claim upon which relief may be granted.

       A plaintiff is required by Rule 8 of the Federal Rules of Civil Procedure to include in the

complaint a "short and plain statement of the grounds for the court's jurisdiction." Fed. R. Civ.

P.8(a). With the dismissal of the § 1983 claim, this court's jurisdiction over this dispute is in
doubt. Unlike state courts of general jurisdiction, such as the Superior Court for the District of

Columbia, this court is a court of limited jurisdiction. A federal district court has jurisdiction in

civil actions arising under the Constitution, laws or treaties of the United States. See 28 U.S.C. §

1331. However, it appears that the dispute between the parties arises under state common law,

not under federal law. Therefore, it does not appear that this court has federal jurisdiction under

28 U.S.C. § 1331.

       A federal district court may have jurisdiction over state common law disputes that arise

between citizens of different states where the amount in controversy exceeds $75,000. See 28

U.S.C. §1332(a). The defendant appears to be a citizen of the District of Columbia, but the

plaintiff, a prisoner confined at the Maryland Correctional Institute in Jessup, Maryland, has not

established that he is not a citizen of the District of Columbia. A prisoner is not presumed to be a

citizen of the state in where he is incarcerated, but rather of the state in which he was domiciled

before he was incarcerated. Jones v. Hadican, 552 F.2d 249, 250-51 (8th Cir. 1977); Sullivan v.

Freeman, 944 F.2d 334,337 (7th Cir. 1991); Smith v. Cummings, 445 F.3d 1254 (lOth Cir.

2006). In addition, the plaintiff has not alleged an amount in controversy. Therefore, the

plaintiff has not established that this court has diversity jurisdiction under § 1332(a).

       Accordingly, the Court will dismiss without prejudice the § 1983 claim for failure to state

a claim upon which relief may be granted, and any implied common law claims for lack of

jurisdiction. A separate order accompanies this memorandum opinion.
