Moler v. Wells

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

ARTHUR FLEMMING MOLER #27271- CASE NO. 2:19-CV-00982 SEC P VERSUS JUDGE JAMES D. CAIN, JR. OFFICER WELLS ET AL MAGISTRATE JUDGE KAY ORDER On January 3, 2021, the Fifth Circuit Court of Appeal issued a “Judgment/Mandate”1 which affirmed in part and vacated in part this Court Judgment adopting the Report and Recommendation of the Magistrate Judge and dismissing this lawsuit with prejudice.2 The Fifth Circuit remanded the case specifically requesting that his Court determine if venue is proper. Venue is proper “in the judicial district where the plaintiff resides.” 28 U.S. C. § 1402(b). Moler states in his complaint that he resided in Forrest City Arkansas, at FCI-FC; however, for purposes of venue, “[o]ne does not change his residence to the prison by virtue of being incarcerated there.” Ellinburg v. Connett¸457 S.2d 240, 241 (5th Cir. 1972) (quoting Cohen v United States, 297 F.2d 760, 774 (9th Cir. 1962)). An incarcerated person resides in the district where he was legally domiciled before his incarceration. Id. As noted by the Fifth Circuit, the record does not reveal where Plaintiff was legally domiciled prior to his incarceration. Accordingly, Doc. 16.

2 Doc. 9.

IT IS ORDERED that Plaintiff file into the record a statement with supporting documentary evidence of his legal domicile prior to his incarceration no later than January 31, 2021.

THUS DONE AND SIGNED in Chambers on this 4th day of January, 2022. . JAMES D. CAIN, TR. C .

UNITED STATES DISTRICT JUDGE Page 2 of 2