SEELEY v. SHELL'S

Filing 13

ENTRY Concerning Selected Matters - The request for additional time 11 is granted. Seeley shall have through January 30, 2013, in which to set forth the basis of this court's jurisdiction over his claims. The plaintiff's motion to app oint counsel 12 is denied. The clerk is directed to include a copy of the December 5, 2012, Order along with the plaintiff's copy of this Entry. The plaintiff shall have an additional period of time, through January 30, 2013, in which to pay the initial partial filing of Four Dollars and Zero Cents as previously directed. Signed by Judge Jane Magnus-Stinson on 1/9/2013. (copy to Plaintiff via US Mail) (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

CLARENCE W. SEELEY,
Plaintiff,

v.
SHELL’S,

Defendant.

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No. 1:12-cv-01749-JMS-TAB

Entry Concerning Selected Matters and Directing Further Proceedings
I.
Plaintiff Clarence W. Seeley has sued “Shell’s” based on a theory that the
owner of the Shell Gas Station should be held liable for the actions of a third-shift
employee who allegedly harassed and physically injured Seeley on June 18, 2012.
Seeley was given a period of time to set forth the basis of this court’s
jurisdiction over his claims. In response he asserts that the court has diversity
jurisdiction, but requests additional time to respond. The request for additional
time [11] is granted. Seeley shall have through January 30, 2013, in which to set
forth the basis of this court’s jurisdiction over his claims.
A plaintiff asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332 bears
the burden of setting forth affirmative allegations establishing that this court has
subject matter jurisdiction. See e.g., Ray v. Bird & Son and Asset Realization Co.,
519 F.2d 1081, 1082 (5th Cir.1975); 5 Charles Wright & Arthur Miller, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2D ' 1208, at 101 n.9, 103-04 n.12 (ed. 1990 and
1993 pocket part); 13 B id. ' 3611, at 516-18 & nn. 27-29, ' 3624, at 610 n.20
(ed.1984 and 1993 pocket part). If diversity jurisdiction is alleged the plaintiff must
allege the citizenship of each party. See Denlinger v. Brennan, 87 F.3d 214, 217 (7th
Cir. 1996) (holding that failure to include allegations of citizenship requires
dismissal of complaint based on diversity jurisdiction). In so doing, the plaintiff
should clarify the identity of the defendant, for example does he intend to sue the
owner of a specific Shell service station, the gas station itself, the Shell Oil
Company or another entity?

II.
The plaintiff’s motion to appoint counsel [12] is denied. Pursuant to 28
U.S.C. § 1915(e)(1), courts are empowered only to “request” counsel. Mallard v.
United States District Court, 490 U.S. 296, 300 (1989). “When confronted with a
request . . . for pro bono counsel, the district court is to make the following inquiries:
(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does
the plaintiff appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647,
654-655 (7th Cir. 2007). The court must deny “out of hand” a request for counsel
made without a showing of such effort. Farmer v. Haas, 990 F.2d 319 (7th Cir.), cert.
denied, 114 S. Ct. 438 (1993). The plaintiff’s motion fails to explain what efforts, if
any, he has made to obtain counsel. This failure dooms his request at this time.
III.
The clerk is directed to include a copy of the December 5, 2012, Order along
with the plaintiff’s copy of this Entry. The plaintiff shall have an additional period
of time, through January 30, 2013, in which to pay the initial partial filing of
Four Dollars and Zero Cents as previously directed.
IT IS SO ORDERED.

01/09/2013
Date: __________________
Distribution:

_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Clarence W. Seeley
DOC #142081
Plainfield Correctional Facility
Inmate Mail/Parcels
727 Moon Road
Plainfield, IN 46168

Note to Clerk: Processing this document requires actions in addition to docketing and distribution.