United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the court is Felix Portes's complaint (Doc. No. 1),
asserting that Portes's former attorney, Eduardo
Masferrer, failed to provide him with adequate legal
representation, in violation of Portes's rights under the
federal constitution, and engaged in acts and omissions
giving rise to liability under state common law. The matter
is before the court for preliminary review pursuant to 28
U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
determining whether a pro se pleading states a claim, the
court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content
in the pleading and inferences reasonably drawn therefrom,
taken as true, state a facially plausible claim to relief.
Hernandez- Cuevas v. Taylor, 723 F.3d 91, 102-03
(1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The court may dismiss the complaint upon
preliminary review if the pleading “fails to state a
claim on which relief may be granted, ” or if the court
lacks subject matter jurisdiction. 28 U.S.C. §§
1915(e)(2), 1915A; LR 4.3(d)(2).
damages, plaintiff asserts that Attorney Masferrer failed to
provide him with adequate legal representation in a criminal
matter in the District of New Hampshire, United States v.
Portes, No. 15-cr-148-01-PB (D.N.H.). Portes alleges,
among other things, that Attorney Masferrer: failed to appear
at two pretrial hearings in this court; failed to provide
Portes with a full copy of discovery; failed to adequately
communicate with Portes; represented Portes while operating
under an actual conflict of interest, to Portes's
detriment; and engaged in fraud in executing a contract for
asserts that Attorney Masferrer violated his rights under the
federal constitution. Section 1983 provides a cause of action
where a person acting under color of state law violates the
plaintiff's federal constitutional rights. 42 U.S.C.
§ 1983. Attorney Masferrer was privately retained and is
not a government agent. Nothing in the complaint gives rise
to any inference that he was acting under color of state law
during his representation of Portes. Cf. Polk County v.
Dodson, 454 U.S. 312, 325 (1981) (court-appointed
defense attorneys are not state actors for purposes of §
1983). Accordingly, Portes cannot sustain claims against
Attorney Masferrer that are based on allegations of federal
constitutional violations, and the district judge should
dismiss those federal claims from this action.
State Common Law Claims
extent Portes asserts claims alleging that Attorney
Masferrer's acts and omissions amounted to legal
malpractice, negligence, breach of contract, or otherwise
gave rise to liability under state common law, this court can
exercise original jurisdiction over those claims only to the
extent that the claims fall within the scope of this
court's diversity jurisdiction. See 28 U.S.C. §
1332(a). To properly invoke the court's diversity
jurisdiction, Portes must assert facts establishing, among
other things, that he and Attorney Masferrer are not
domiciled in the same state. See id.
state citizenship, Portes has provided the court with a
Massachusetts address for Attorney Masferrer. Portes is
presently in pretrial detention in New Hampshire. There is a
rebuttable presumption that, for purposes of diversity
jurisdiction determinations, an inmate is domiciled in the
state where he lived and intended to stay before his
incarceration, even if he is currently incarcerated
elsewhere. See Hall v. Curran, 599 F.3d 70, 72 (1st
Cir. 2010). That presumption may be rebutted. See
Id. (relevant factors to be considered by court in
determining whether prisoner has rebutted presumption of
domicile include prisoner's declaration of intentions
regarding his new place of residence, possibility of parole
to new place of residence, his ordering of affairs, and any
other factors that may corroborate claimed state of
Order issued this date, the court has granted Portes leave to
file a motion to amend the complaint by January 6, 2017
rebutting the presumption that he intends to return to
Massachusetts when he is released, and any other evidence
showing that he and Attorney Masferrer are not domiciled in
the same state. If Portes chooses not to file a response to
that Order, this court may recommend that the state law