United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE
E. SCHREIER UNITED STATES DISTRICT JUDGE
17, 2019, Benjamin Watkins Leigh filed a pro se lawsuit
alleging that defendants Moriarty Rentals, Marilyn McKinney,
and Steve McKinney, harassed him and denied him his civil
right to use the community room and to form a tenant's
union at his elderly living center. Docket 1. On July 10,
2019, Leigh filed a supplement to his original complaint that
added a new defendant, Steven J. Britzman. Docket 5. Leigh
alleges that Britzman violated the Fair Housing Act.
Id. at 1. Leigh also filed a motion for leave to
proceed in forma pauperis and a motion to appoint counsel.
Dockets 2, 3.
is a resident at Heritage Estates II in Brookings, South
Dakota, which is owned by defendant Moriarty Rentals and
managed by defendants Marilyn and Steve McKinney. Docket 1 at
1, 4. Leigh alleges several claims of harassment beginning on
or about January 6, 2019. Id. at 4. Leigh claims
that Marilyn and Steve McKinney bar residents from the
community room, restrict times the community room is open for
meals, remove residents' possessions and food from the
community room, act rudely to visitors, and commit other acts
of “psychological abuse” against residents.
Id. at 3-5; Docket 5. Leigh also alleges that
Britzman endorses these management policies and interferes
with tenants' rights to organize. Docket 5 at 1.
Additionally, Leigh alleges that Moriarty Rentals filed a
three-day notice to quit, signed by Britzman in his role as
Moriarty Rentals' attorney, in order to begin eviction
proceedings on May 24, 2019, after Leigh attempted to form a
tenants' union. Docket 1 at 1, 5, 7; Docket 5 at 9.
federal court may authorize the commencement of suit without
prepayment of fees when an applicant files an affidavit
stating he is unable to pay the costs of the lawsuit. 28
U.S.C. § 1915(a)(1). “Under 28 U.S.C. § 1915,
the decision whether to grant or deny in forma pauperis
status is within the sound discretion of the trial
court.” Cross v. Gen. Motors Corp., 721 F.2d
1152, 1157 (8th Cir. 1983). “[I]n forma pauperis status
does not require a litigant to demonstrate absolute
destitution.” Lee v. McDonald's Corp., 231
F.3d 456, 459 (8th Cir. 2000). The court finds that Leigh
satisfies § 1915 and grants his motion for leave to
proceed in forma pauperis.
Leigh is proceeding pro se, his pleadings must be liberally
construed and his complaint, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers[.]” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation
omitted). But a plaintiff seeking to bring a lawsuit in
federal court must establish that the court has subject
courts are courts of limited jurisdiction[.]”
United States v. Afremov, 611 F.3d 970, 975 (8th
Cir. 2010). A district court “has a special obligation
to consider whether it has subject matter jurisdiction in
every case.” Hart v. United States, 630 F.3d
1085, 1089 (8th Cir. 2011) “This obligation includes
the concomitant responsibility ‘to consider sua
sponte [the court's subject matter] jurisdiction . .
. where . . . [the court] believe[s] that jurisdiction may be
lacking.' ” Id. (alteration in original)
(quoting Clark v. Baka, 593 F.3d 712, 714 (8th Cir.
2010)). Under 28 U.S.C. § 1331, federal district courts
“have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” Under 28 U.S.C. § 1332, federal
district courts “have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum
or value of $75, 000, exclusive of interest and costs, and is
between . . . citizens of different States[.]” Thus,
federal courts have subject matter jurisdiction through
federal question jurisdiction or diversity jurisdiction.
the court will consider whether it has federal question
jurisdiction. Leigh does not raise a federal question.
“[A] suit ‘arises under' federal law
‘only when the plaintiff's statement of his own
cause of action shows that it is based upon [federal
law].' ” Vaden v. Discover Bank, 556 U.S.
49, 60 (2009) (alteration in original) (quoting
Louisville & Nashville R. Co. v. Mottley, 211
U.S. 149, 152 (1908)). In his original complaint, Leigh cites
no federal civil statute for his claim, instead repeating the
nature of suit code for housing and accommodations issues
under civil rights. Docket 1 at 7. In the supplement to his
complaint, Leigh alleges that Britzman endorses
“management policies that violate the Fair Housing
Act.” Docket 5 at 1.
court liberally construes Leigh's complaint and
supplement as a claim under the Fair Housing Act, 42 U.S.C.
§§ 3601-3619, and under the Civil Rights Act, 28
U.S.C. § 1983. The Fair Housing Act allows a claim for
retaliatory evictions that are discriminatory. See
42 U.S.C. § 3617; see also Neudecker v. Boisclair
Corp., 351 F.3d 361, 364 (8th Cir. 2003) (finding that
threats of eviction “sufficiently alleged an adverse
action” to advance past the pleading stage). But Leigh
does not allege discrimination based on a protected class and
cannot bring a claim under the Fair Housing Act.
“[W]here the text and structure of a statute provide no
indication that Congress intends to create new individual
rights, there is no basis for a private suit, whether under
§ 1983 or under an implied right of action.”
Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2003).
Because the Fair Housing Act does not recognize a private
cause of action, he is not provided one by § 1983.
See Id. Thus, Leigh does not raise a federal
the court will consider whether it has diversity
jurisdiction. Diversity jurisdiction “requires an
amount in controversy greater than $75, 000 and complete
diversity of citizenship among the litigants.”
OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 346
(8th Cir. 2007) (citing 28 U.S.C. § 1332(a)).
“Complete diversity of citizenship exists where no
defendant holds citizenship in the same state where any
plaintiff holds citizenship.” Id. Here,
Leigh's claim lacks complete diversity because Leigh and
all defendants are residents of South Dakota. Docket 1 at 2;
Docket 5 at 9. Thus, the claim does not fall under diversity
Leigh's claim does not present a federal question or have
complete diversity, this court does not have jurisdiction to
hear this claim.
that Leigh's motion to proceed in forma pauperis (Docket
2) is granted.
FURTHER ORDERED that Leigh's complaint (Docket 1) is
dismissed without prejudice for lack ...