Barbero v. Davidson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

THERESA MARIE BARBERO, )

)

Plaintiff, )

)

v. ) No. 4:19-cv-02697-PLC

)

WILHOIT PROPERTIES, INC., et al., )

)

Defendants, )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Theresa Marie Barbero for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion and the financial information submitted in support, the Court finds

that it should be granted. See 28 U.S.C. § 1915(a)(1). Additionally, for the reasons discussed

below, the Court will direct plaintiff to show cause why this case should not be dismissed for lack

of subject matter jurisdiction. The Court also addresses Plaintiff’s motion to appoint counsel.

(Docket No. 3).

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a pro se litigant who brings this civil action against defendants Wilhoit

Properties, Inc., Robert Davidson, Sandra Heidelberg, and Ami Poole. She asserts that this Court

has jurisdiction based on Fair Housing Act violations pursuant to 42 U.S.C. § 3601, and civil rights

violations pursuant to 42 U.S.C. § 13603. (Docket No. 1 at 3).

Plaintiff states that her first contact with Wilhoit Properties was on October 9, 2018.

(Docket No. 1 at 5). She does not describe the nature of that contact. Plaintiff goes on to state that

Wilhoit Properties’ leasing manager, Ami Poole, “slowly processed” her rental application. Poole

also checked her credit twice: once on November 27, 2018, and again on December 27, 2018.

In the first week of November 2018, plaintiff received her first HUD voucher. She states

that she had four months to use it, and that it would expire on February 28, 2019.

Plaintiff “moved into Wilhoit’s property [on] January 2, 2019.” Fifteen days later, she

claims she was “forced to break the lease.” Plaintiff explains that she had to break the lease because

she was not able to get internet. She also asserts that people were “spying” on her, complaining

about her emotional support animal, and smoking within a few feet of her and her dog, even though

smoking was prohibited. Plaintiff alleges that she was “bullied” and that “Ami Poole denied it,

lied about it[,] and refused to help me or protect me.”

After plaintiff broke her lease, she states that Wilhoit Properties “stole” her deposit and

refused a refund. Wilhoit also “retaliated” by mailing plaintiff a “threatening letter…trying to steal

an additional $1,500.” Plaintiff states that Wilhoit Properties threatened to send her to collections

if she did not pay them in fourteen days. However, plaintiff insists that she did not owe them

money, but that Wilhoit Properties owed her money.

Plaintiff states that she has “exhausted all avenues” trying to get Wilhoit Properties to

refund her money. She claims she has suffered mentally and physically due to Wilhoit Properties’

gross negligence. She also states she has had to incur credit card debt paying for hotels. Finally,

plaintiff notes that her HUD voucher expired before she was able to use it.

Plaintiff states that her moving costs have been $2,530, that her HUD voucher was for

$12,600, and that she has spent $10,000 on hotels. (Docket No. 1 at 4). She tallies her actual

damages at $25,000, and calculates her mental anguish and trauma as three times that amount.

(Docket No. 1 at 6). Thus, she is seeking $75,000 in damages. Plaintiff also wants her “rights

restored along with housing provided.” (Docket No. 1 at 5).

Discussion

Plaintiff alleges that after she was forced to break a lease with Wilhoit Properties, Wilhoit

Properties refused to refund her deposit and sought additional money from her. She also complains

about the slow processing of her rental application, the fact that her credit was checked twice, and

about not being protected from bullying. From the face of the complaint it does not appear that the

Court has subject matter jurisdiction over this action. Thus, for the reasons discussed below,

plaintiff will be directed to show cause why her case should not be dismissed pursuant to Fed. R.

Civ. P. 12(h)(3).

A. Subject Matter Jurisdiction

Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.

LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). “Federal courts are not courts of

general jurisdiction; they have only the power that is authorized by Article III of the Constitution

and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“Federal courts are

courts of limited jurisdiction, possessing only that power authorized by Constitution and statute”).

The presence of subject matter jurisdiction is a threshold requirement that must be assured in every

federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990). See also

Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (“The threshold requirement in every

federal case is jurisdiction and we have admonished the district court to be attentive to a

satisfaction of jurisdictional requirements in all cases”). As such, the issue of subject matter

jurisdiction may be raised at any time, by any party or the court. Gray v. City of Valley Park, Mo.,

567 F.3d 976, 982 (8th Cir. 2009).

Federal courts have subject matter jurisdiction over both federal question cases and

diversity of citizenship cases. See Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian

Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) (finding that subject matter jurisdiction is lacking

if neither diversity of citizenship nor federal question jurisdiction applies); and McLaurin v. Prater,

30 F.3d 982, 984-85 (8th Cir. 1994) (noting that Congress has directed that district courts shall

have jurisdiction in both federal question and diversity cases). Here, plaintiff specifically asserts

federal question jurisdiction. As explained below, however, she has not demonstrated that either

federal question or diversity of citizenship jurisdiction exists.

B. Federal Question Jurisdiction

Federal question jurisdiction gives district courts “original jurisdiction over civil actions

arising under the Constitution, laws, or treaties of the United States.” Griffioen v. Cedar Rapids &

Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015). See also 28 U.S.C. § 1331. Whether a

claim arises under federal law is determined by reference to the “well-pleaded complaint.” Great

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016).

The well-pleaded complaint rule provides that jurisdiction exists only when a federal question is

presented on the face of a plaintiff’s properly pleaded complaint. Markham v. Wertin, 861 F.3d

748, 754 (8th Cir. 2017). See also Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1139

(8th Cir. 2014) (“Under the well-pleaded complaint rule, a federal question must exist on the face

of the plaintiff’s properly pleaded complaint in order to establish federal question subject matter

jurisdiction”). A plaintiff’s complaint must establish “either that federal law creates the cause of

action or that the plaintiff’s right to relief necessarily depends on the resolution of a substantial

question of federal law.” Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998).

Plaintiff contends that the Court has jurisdiction pursuant to 42 U.S.C. § 3601, based on

Fair Housing Act violations, and pursuant to 42 U.S.C. § 13603, based on civil rights violations.

However, the facts contained in plaintiff’s “Statement of Claim” do not support this contention.

“The Fair Housing Act prohibits property owners and municipalities from blocking or

impeding the provision of housing on the basis of race, color, religion, sex, familial status, or

national origin.” Gallagher v. Magner, 619 F.3d 823, 831 (8th Cir. 2010). See also Khan v. City of

Minneapolis, 922 F.3d 872, 873 (8th Cir. 2019) (stating that the FHA is “a federal law that generally

prohibits making unavailable or denying a dwelling because of a person’s race, color, religion,

sex, familial status, or national origin”). A tenant subjected to discrimination in violation of the

FHA can bring a private cause of action for damages. See Neudecker v. Boisclair Corp., 351 F.3d

361, 363 (8th Cir. 2003). However, the party asserting a housing discrimination claim under the

FHA has the initial burden of proving a prima facie case of discrimination by a preponderance of

the evidence. See Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997). Here, none of plaintiff’s

factual statements support an allegation of discrimination on the basis of race, color, religion, sex,

familial status, or national origin.

Meanwhile, 42 U.S.C. § 13603 governs the establishment of criteria for occupancy in

federally assisted housing. Pursuant to 42 U.S.C. § 13601, “[t]he Secretary of Housing and Urban

Development shall require owners of federally assisted housing…as a condition of receiving

housing assistance for such housing, to comply with the procedures and requirements established

under this subchapter.” Here, plaintiff has not alleged that Wilhoit Properties meets the definition

of “federally assisted housing.” See 42 U.S.C. § 13641. She has also failed to provide any facts

demonstrating that Wilhoit Properties failed to comply with any established procedures or

requirements pertaining to federally assisted housing..

Plaintiff has not shown that her case implicates any federal statutes, federal treaties, or

provisions of the United States Constitution. Furthermore, plaintiff’s action is not directed against

a federal official, a federal agency, or the federal government itself. Specifically, as discussed

above, her “Statement of Claim” does not show a violation of the Fair Housing Act or a violation

of the criteria for occupancy in federally assisted housing. Therefore, plaintiff has not established

that this Court has federal subject matter jurisdiction over her case.

C. Diversity Jurisdiction

“Under 28 U.S.C. § 1332(a), district courts have original diversity jurisdiction over civil

actions when the matter in controversy exceeds $75,000, without considering interest and costs,

and when the citizenship of each plaintiff is different from the citizenship of each defendant.” Ryan

ex rel. Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). A complaint

making a good faith allegation of the jurisdictional amount is sufficient to confer jurisdiction.

Scottsdale Ins. Co. v. Universal Crop Prot. All., LLC, 620 F.3d 926, 931 (8th Cir. 2010). However,

a “complaint will be dismissed if it appears to a legal certainty that the claim is really for less than

the jurisdictional amount.” Id. See also Kopp v. Kopp, 280 F.3d 883, 884 (8th Cir. 2002). “The

legal certainty standard is met where the legal impossibility of recovery is so certain as virtually

to negative the plaintiff’s good faith in asserting the claim.” Peterson v. The Travelers Indem. Co.,

867 F.3d 992, 995 (8th Cir. 2017).

“Complete diversity of citizenship exists where no defendant holds citizenship in the same

state where any plaintiff holds citizenship.” OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,

346 (8th Cir. 2007). For purposes of diversity, state citizenship requires an individual’s physical

presence in the state coupled with an indefinite intention to remain there. Blakemore v. Missouri

Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir. 1986).

Plaintiff has alleged a jurisdictional amount of $75,000. However, based on the information

contained in the complaint, both plaintiff and defendants are citizens of Missouri, meaning the

parties are not diverse. Therefore, plaintiff has failed to establish that the Court has jurisdiction

pursuant to 28 U.S.C. § 1332.

A. Order to Show Cause

As discussed above, plaintiff has not adequately provided a basis for this Court’s

jurisdiction. If the Court determines at any time that it lacks subject matter jurisdiction, the action

must be dismissed. See Fed. R. Civ. P. 12(h)(3). Therefore, the Court orders plaintiff to show cause

within thirty (30) days after the date of this Order why this case should not be dismissed for lack

of subject matter jurisdiction. Failure to comply with this Order will result in the dismissal of this

action without prejudice and without further notice.

B. Motion to Appoint Counsel

Plaintiff has filed a motion to appoint counsel (Docket No. 3). In civil cases, a pro se litigant

does not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940,

942 (8th Cir. 2013). See also Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that

“[a] pro se litigant has no statutory or constitutional right to have counsel appointed in a civil

case”). Rather, a district court may appoint counsel in a civil case if the court is “convinced that

an indigent plaintiff has stated a non-frivolous claim…and where the nature of the litigation is

such that plaintiff as well as the court will benefit from the assistance of counsel.” Patterson v.

Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an

indigent litigant, a court considers relevant factors such as the complexity of the case, the ability

of the pro se litigant to investigate the facts, the existence of conflicting testimony, and the ability

of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8%

Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that she can adequately present her

claims to the Court. Additionally, plaintiff is being directed to show cause why her complaint

should not be dismissed for lack of subject matter jurisdiction. The Court will entertain future

motions for appointment of counsel as the case progresses and if appropriate.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 3) is DENIED without prejudice at this time.

IT IS FURTHER ORDERED that plaintiff shall show cause in writing and within thirty

(30) days after the date of this Order why this action should not be dismissed for lack of subject

matter jurisdiction.

IT IS FINALLY ORDERED that failure to comply with this Order will result in the

dismissal of this case without prejudice and without further notice.

Plaintiff’s motion to add a new defendant (Docket No. 5) remains pending until the Court

resolves whether it has subject matter jurisdiction over this action.

Witt. Boon

PATRICIA L. COHEN

UNITED STATES MAGISTRATE JUDGE

Dated this 10th day of February, 2020