LeFlore v. Mcnair et al

Filing 4

ORDER re 2 MOTION to Proceed in forma pauperis filed by John LeFlore. Plaintiffs original pleading, quoted above, does not properly state a claim or even state facts from which some cognizable claim over which this court has jurisdiction might be conceivably pieced together. Accordingly, the Motion to Proceed IFP 2 is held in abeyance. Further, because of Plaintiffs pro se status, the court will permit him leave to file a motion to amend the original pleading with a proposed amended pleading attached. The motion to amend must be filed within (21) twenty-one of the date of this Order. Signed by Magistrate Judge Jane M. Virden on 4/13/18.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JOHN LEFLORE

PLAINTIFF

VS.

CIVIL ACTION NO.: 4:18-CV-87-SA-JMV

JAMEKA MCNAIR
MARSHALL FISHER
JOHN DAVIS
CATHY SYKES

DEFENDANTS

Order Holding in Abeyance Motion to Proceed in forma pauperis

This matter is before the Court on the pro se Plaintiff, John Leflore’s, Motion for Leave to
Proceed In Forma Pauperis “IFP”. Doc. #2. Because the Court, as explained hereafter, finds that
the original pleading in this matter is frivolous and fails to either assert a jurisdictional basis for
this court to entertain the case or to otherwise state a cause of action under Fed. R. Civ. Pro.
12(b)(6), the motion to proceed IFP will be held in abeyance for a period of (21) twenty-one days
from the date hereof to allow Plaintiff an opportunity to successfully move to amend the original
pleading so as to state a non-frivolous and cognizable cause of action over which this court has
jurisdiction.
Background
On April 9, 2018, the pro se Plaintiff filed an initial pleading in this case asserting claims
of civil rights violations against the Defendants. In connection therewith, Plaintiff has also filed a
motion to proceed IFP.
In support of the motion, the Plaintiff asserts that he is entitled to relief in the amount of
$100,000, but, despite diligent effort, the undersigned can discern no coherent fact pattern, let

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alone a viable legal premise, upon which to found jurisdiction or any claim for relief. By way of
explanation, the court has incorporated herein the totality of the narrative of Plaintiff’s initial
pleading:

Doc. #1 at 3-4.
Law and Analysis
Federal Rules of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 8 states that a civil complaint “must contain . . . a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro.
8(a)(2). The Supreme Court has interpreted the “short and plain statement requirement to mean
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that the complaint must provide the defendant [with] fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 335 U.S. 41, 47 (1957)).
When considering whether the complaint is sufficient to state a claim under Rule 12(b)(6),
the court must accept as true all of the factual allegations contained in the complaint, viewing them
in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court, further, acknowledges its
obligation to liberally construe the pleadings of a lay person, like the plaintiff, when they are
proceeding in a case without benefit of counsel. Haines v. Kerner, 404 U.S. 519 (1972). However,
even then, “we disregard a complaint's unsupported legal conclusions, for a formulaic recitation
of the elements of a cause of action will not suffice to state a plausible claim. Rather, a complaint
must allege enough factual matter… to suggest the elements required for a claim.” Electrostim
Med. Servs. v. Health Care Serv. Corp., 614 F. App'x 731, 736 (5th Cir. 2015)(emphasis
added)(citation omitted)(quotation marks omitted)(quoting Iqbal, 556 U.S. at 678 and Twombly,
550 U.S. at 556).
Further, pursuant to 28 U.S.C. § 1915(e), should a plaintiff proceed in forma pauperis with
a complaint that is frivolous or that fails to state a claim upon which relief can be granted, the court
must dismiss the complaint. 28 U.S.C. § 1915(e)(2)(B). The court may deny leave to proceed in
forma pauperis if it determines “from the face of the proposed complaint that the action is frivolous
or without merit.” Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987).
In the instant case, no viable claim is suggested by the sparse facts alleged.

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Federal Rules of Civil Procedure 12(b)(1)
Courts also have a duty to examine their own jurisdiction, and are required to dismiss, sua
sponte, any action over which they lack jurisdiction. Insurance Corp. of Ireland, Ltd. V.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982); Fed.R.Civ.P. 12(h)(3).
In light of the Plaintiff’s pro se status, he is instructed that, in order to bring suit in federal
court, a case must satisfy the requirements for subject matter jurisdiction. Subject matter
jurisdiction can primarily be established in two ways.
First, the case can arise under the Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. This first type of subject matter jurisdiction is called “Federal Question
Jurisdiction.”
Second, the case may be brought in federal court if it involves more than $75,000 in
controversy and all plaintiffs are citizens of different states than all defendants. 28 U.S.C. § 1332.
This second type of subject matter jurisdiction is called “Diversity Jurisdiction.”
In the body of the complaint, Plaintiff makes only the following vague references to the
U.S. Constitution: “first amendment right of freedom of association and freedom of assembly, and
the Fifth Amendment nor be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation,” and “equal protection
of rights” with no discernible facts offered in support thereof.
Consequently, it does not appear from the complaint that the court has federal question
jurisdiction.
Further, because the citizenship of the parties cannot be determined from the pleading, the
court is unable to determine whether diversity jurisdiction exists. Without either type of subject
matter jurisdiction, this court cannot hear the Plaintiff’s case.

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Leave to Amend
When a plaintiff's complaint suffers from a pleading deficiency, the court should generally
give the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing
the action with prejudice. Erinle v. City of Houston, 2011 WL 1884065, at *2 (S.D. Tex. May 17,
2011); see, Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
Cir. 2002).
However, a Plaintiff should be denied leave to amend a complaint if the court determines
that “the proposed change clearly is frivolous or advances a claim or defense that is legally
insufficient on its face.” 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1487 (2d ed. 1990); see also, Ayers v. Johnson, 247 F. App'x 534, 535 (5th Cir.
2007) (unpublished) (per curiam) (“‘[A] district court acts within its discretion when dismissing a
motion to amend that is frivolous or futile.’” (quoting Martin's Herend Imports, Inc. v. Diamond
& Gem Trading U.S. of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999))).
The Plaintiff’s Complaint
As noted above, and as is clearly demonstrated from the language of Plaintiff’s original
pleading, quoted above, does not properly state a claim or even state facts from which some
cognizable claim over which this court has jurisdiction might be conceivably pieced together.
Accordingly, the Motion to Proceed IFP [2] is held in abeyance.
Further, because of Plaintiff’s pro se status, the court will permit him leave to file a motion
to amend the original pleading with a proposed amended pleading attached. The motion to amend
must be filed within (21) twenty-one of the date of this Order.
Finally, the Plaintiff is forewarned, however, that if the proposed amended complaint itself
fails to support federal jurisdiction and/or otherwise state a claim, the undersigned will recommend

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to the district judge that the motion to proceed IFP [2] be denied and the case be dismissed with
prejudice.
Conclusion
For the foregoing reasons, the court:
1. Holds in abeyance Plaintiff’s Motion for Leave to Proceed IFP [2]; and
2. Permits Plaintiff leave to move to amend by filing a motion to amend with a copy of
the proposed amended complaint attached within 21 days of the date of this order.
If the leave to amend is not thereafter granted, the undersigned will recommend to the
district judge that this case be dismissed with prejudice for the reasons set forth herein.

SO ORDERED, this, the 13th day of April, 2018.

/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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