Mengis v. McCorkle et al

Filing 5

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the c omplaint at this time. IT IS FURTHER ORDERED that plaintiff shall show cause within thirty (30) days of the date of this Memorandum and Order why this case should not be dismissed for lack of jurisdiction. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 3 ] is DENIED. IT IS FURTHER ORDERED that plaintiff's request for an injunction and restraining order [ECF No. 4 ] is DENIED. Signed by District Judge E. Richard Webber on 11/25/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BENYAM MENGIS,
Plaintiff,
v.
TIMOTHY “TIM” MCCORKLE, et al.,
Defendants.

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No. 4:14CV01934 ERW

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to proceed in forma
pauperis. The motion will be granted. Additionally, the Court will order plaintiff to show cause
why this action should not be dismissed for lack of jurisdiction.
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint filed in forma
pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. An action is
frivolous if it Alacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319,
328 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose of
vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987),
aff=d 826 F.2d 1059 (4th Cir. 1987). A complaint fails to state a claim if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Complaint
Plaintiff brings claims relating to his renting of an apartment in Butler Hill Apartments.
Plaintiff alleges that defendants failed to make maintenance repairs to his apartment, but repaired
other apartments. Plaintiff further alleges that some of his personal belongings disappeared from
his apartment. Finally, plaintiff claims that he slipped and fell outside of his apartment and
sustained injuries.
Discussion
Plaintiff has failed to state the jurisdictional grounds for filing this action in federal court.
Plaintiff does not set forth any laws or constitutionally-protected rights that defendant allegedly
has violated. See 28 U.S.C. § 1331. Moreover, plaintiff has insufficiently alleged diversity
jurisdiction under 28 U.S.C. § 1332. In order to properly allege diversity jurisdiction, a plaintiff
must allege that the amount in controversy exceeds $75,000 and that the plaintiff and the
defendants are citizens of different states. Here, plaintiff seeks $35,000 in damages from his slip
and fall, $15,000 in punitive damages, and $20,000 in damages for infliction of emotional
distress.
Because plaintiff is pro se, the Court will give plaintiff the opportunity to show cause
why the case should not be dismissed for lack of jurisdiction. Failure to respond to this Order or
failure to show adequate cause will result in the dismissal of this case.
Plaintiff's motion for appointment of counsel will be denied without prejudice at this
time. There is no constitutional or statutory right to appointed counsel in civil cases. Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining whether to
appoint counsel, the Court considers several factors, including (1) whether the plaintiff has
presented non-frivolous allegations supporting his or her prayer for relief; (2) whether the
plaintiff will substantially benefit from the appointment of counsel; (3) whether there is a need to

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further investigate and present the facts related to the plaintiff's allegations; and (4) whether the
factual and legal issues presented by the action are complex. See Johnson v. Williams, 788 F.2d
1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005. After considering these factors, the
Court finds that the facts and legal issues involved in this case are not so complicated that the
appointment of counsel is warranted at this time.
It is unclear what plaintiff is requesting in his request for an injunction and restraining
order. Accordingly, it will be denied at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to
issue upon the complaint at this time.
IT IS FURTHER ORDERED that plaintiff shall show cause within thirty (30) days of
the date of this Memorandum and Order why this case should not be dismissed for lack of
jurisdiction.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [ECF
No. 3] is DENIED.
IT IS FURTHER ORDERED that plaintiff’s request for an injunction and restraining
order [ECF No. 4] is DENIED.
So Ordered this 25th day of November, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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