Andreakos v. Home Depot et al

Filing 7

ORDER adopting 5 --REPORT AND RECOMMENDATIONS; dismissing the complaint; amended complaint due 6/19/2017; denying appointment of counsel. Signed by Judge Steven D. Merryday on 5/12/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EARL ANDREAKOS,
Plaintiff,
v.

CASE NO. 8:17-cv-834-T-23TGW

HOME DEPOT, INC., et al.,
Defendants.
____________________________________/
ORDER
Appearing pro se, Earl Andreakos sues (Doc. 1) Home Depot, Inc., and
Sedgewick, Inc, and moves (Doc. 2) for leave to proceed in forma pauperis. In accord
with 28 U.S.C. § 1915(e)(2)(B)(ii), Magistrate Judge Wilson recommends (Doc. 5)
dismissing the complaint for failure to state a plausible claim and recommends
permitting Andreakos to amend the complaint. Andreakos offers no objection to the
report and recommendation.
DISCUSSION
On August 8, 2014, Andreakos sued Home Depot, “Insurance Co.,” and
“Dave.” Case no. 8:14-cv-1897-JDW-TBM. Because Andreakos failed to pay the
filing fee or provide an affidavit of indigency, a March 2, 2015 order (Doc. 10 in
8:14-cv-1897) dismisses the action without prejudice.
Nearly three years later, Andreakos sues again. Although the complaint in
this action omits a claim, Andreakos’ factual allegations appear to allege negligence
by Home Depot. Andreakos alleges that “Dave,” a Home Depot employee,

“careless[ly]” pushed a cart loaded with plywood into Andreakos’s back. (Doc. 1
at 5–8) The incident allegedly caused “nerve” and “spin[al]” damage, for which
Andreakos requests $100 million. (Doc. 1 at 8–10) Also, Andreakos alleges that the
injury caused “mental suffering,” which purportedly caused Andreakos’
homelessness. (Doc. 1 at 10)
As Magistrate Judge Wilson explains, the complaint suffers from several
defects. First, the complaint omits a jurisdictional statement. Under Rule 8(a),
Federal Rules of Civil Procedure, a plaintiff must include a “short and plain
statement of the grounds for the court’s jurisdiction.” No federal question appears.
To invoke diversity jurisdiction under 28 U.S.C. § 1332, Andreakos must allege each
party’s citizenship, but Andreakos fails to identify his citizenship, Home Depot’s
citizenship, and Sedgewick’s citizenship. Second, Andreakos fails to allege a claim,
for example, negligence against Home Depot. Third, Rule 8(a)(2) requires
Andreakos to allege facts sufficient to state a plausible claim against Sedgewick, but
Andreakos fails to explain Sedgewick’s connection to the alleged incident.
CONCLUSION
Magistrate Judge Wilson’s report and recommendation (Doc. 5) is
ADOPTED, and the complaint is DISMISSED. No later than JUNE 19, 2017,
Andreakos must amend the complaint to remedy the defects identified in this order
and in the magistrate’s report. The failure to timely amend the complaint will result
in the dismissal of this action without further notice.

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Also, Andreakos requests the appointment of a “federal attorney.” (Doc. 1
at 11) But a pro se litigant enjoys no right to an appointed attorney in a civil action.
Although litigating in federal court is difficult, the court cannot assist a party (even a
pro se party) in conducting an action. The plaintiff can contact The Florida Bar for a
list of organizations that provide free or low-cost legal service to an eligible person.
ORDERED in Tampa, Florida, on May 12, 2017.

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