throbber
Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 1 of 14 PageID #: 190
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF SOUTH DAKOTA
`SOUTHERN DIVISION
`
`
`
`
`4:23-CV-04084-KES
`
`
`ORDER GRANTING PLAINTIFF’S
`MOTION TO PROCEED WITHOUT
`PREPAYMENT OF FEES, DENYING
`PLAINTIFF’S MOTION TO APPOINT
`COUNSEL, AND 1915 SCREENING
`FOR DISMISSAL
`
`
`LINDA LEE LADEAUX,
`
`
`Plaintiff,
`
`vs.
`
`
`
`JL PROPERTY MANAGEMENT; JOSH
`UTTERBACK; METASTONE
`PROPERTIES; EAST RIVER LEGAL
`SERVICES; SIOUX FALLS HOUSING
`AND REDEVELOPMENT COMMISSION;
`DEPARTMENT OF HOUSING AND
`URBAN DEVELOPMENT;
`MIDWESTERN MECHANICAL, INC.;
`LLOYD COMPANIES, INC.; ANIMAL
`CONTROL,
`
`
`Defendants.
`
`
`Plaintiff, Linda Lee LaDeaux, filed a pro se lawsuit. Docket 1. LaDeaux
`
`moves for leave to proceed in forma pauperis and provided her financial
`
`affidavit. Docket 2. She moves for the court to appoint counsel. Docket 3.
`
`I.
`
`Motion for Leave to Proceed in Forma Pauperis
`
`A federal court may authorize the commencement of any lawsuit without
`
`prepayment of fees when an applicant submits an affidavit stating he or she is
`
`unable to pay the costs of the lawsuit. 28 U.S.C. § 1915(a)(1). “[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). But in
`
`forma pauperis status is a privilege, not a right. Williams v. McKenzie, 834 F.2d
`
`

`

`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 2 of 14 PageID #: 191
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`152, 154 (8th Cir. 1987). Determining whether an applicant is sufficiently
`
`impoverished to qualify to proceed in forma pauperis under § 1915 is
`
`committed to the sound discretion of the district court. Cross v. Gen. Motors
`
`Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). After review of LaDeaux’s financial
`
`affidavit, the court finds that she has insufficient funds to pay the filing fee.
`
`Thus, LaDeaux’s motion for leave to proceed without prepayment of fees
`
`(Docket 2) is granted. This court now screens LaDeaux’s complaint.
`
`II.
`
`28 U.S.C. § 1915 Screening
`
`A.
`
`Factual Background
`
`The facts alleged in LaDeaux’s complaint are: Josh Utterback committed
`
`fraud against her when she rented housing property from him. Docket 1 at 4.
`
`Utterback managed Metastone Properties, LLC, from which LaDeaux rented
`
`housing. Id. LaDeaux’s monthly rent was $800 per month. Docket 1-1 at 18. As
`
`a participant in the Housing Choice Voucher program, the Sioux Falls Housing
`
`and Redevelopment Commission paid $538 per month toward LaDeaux’s rent,
`
`and she was responsible for the balance of $262 per month. Id. The Rosebud
`
`Sioux Tribe Emergency Rental Assistance program made a $3,735 payment to
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`“Metastone Properties LLC Josh Utterback” on March 22, 2022, for payment of
`
`LaDeaux’s portion of her rent. Id. at 2, 18. LaDeaux alleges that she did not
`
`receive credit for the $3,735 payment made by the Rosebud Sioux Tribe and
`
`was wrongfully evicted as a result. Id. at 18; Docket 1 at 4. LaDeaux asserts
`
`that Utterback committed fraud when he received the check for her rent from
`
`the Rosebud Sioux Tribe Emergency Rental Assistance program but did not
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`
`
`2
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 3 of 14 PageID #: 192
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`credit her account for the rental assistance. Docket 1 at 4; Docket 1-1 at 18.
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`Because of this fraud, LaDeaux lost her Housing Choice Voucher. Docket 1 at
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`4; Docket 1-1 at 18.
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`Other concerns LaDeaux raises about Utterback’s housing management
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`is that (1) he did not put grab bars in her bathroom, (2) she did not receive
`
`keys to the property until March 26, 2022, and (3) he did not notify tenants of
`
`JL Properties until June 2022, but the complaint does not state the purpose or
`
`significance of the notice. Docket 1 at 4. She asserts that she faced health risks
`
`while a tenant in Metastone Properties that relate back to 2010. Id. at 1.
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`Metastone would ask her to move instead of fixing any health code violations.
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`Id. at 4. LaDeaux attaches to her complaint a copy of JL Property
`
`Management’s Property Management Agreement, see Docket 1-1 at 27–31, and
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`her lease agreement with Metastone Properties, see id. at 37–58.
`
`In her civil cover sheet (JS 44), LaDeaux alleges that she has causes of
`
`action under the False Claims Act, Americans with Disabilities Act, and the
`
`civil rights provisions. Id. at 6. But the civil cover sheet is not a pleading and
`
`cannot supplement the pleadings to establish subject-matter jurisdiction. The
`
`civil cover sheet specifically provides that “the information contained herein
`
`neither replace[s] nor supplement[s] the filing and service of pleadings or other
`
`papers as required by law[.]” Id.; see also Favors v. Coughlin, 877 F.2d 219, 220
`
`(2d Cir. 1989) (per curiam) (“The civil cover sheet, of course, is merely an
`
`administrative aid to the court clerk, and is therefore not typically considered
`
`part of a litigant’s pleading papers.”); Fed. R. Civ. P. 7 (defining pleading to
`
`
`
`3
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`

`

`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 4 of 14 PageID #: 193
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`include the complaint but not the civil cover sheet). The court gives LaDeaux
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`the benefit of the doubt by construing her complaint to assert causes of action
`
`under these theories.
`
`In her complaint, LaDeaux alleges state-law claims against Utterback
`
`and Metastone for slander, defamation of character, deceit, and fraud. Docket
`
`1 at 1. She sues Animal Control due to unsanitary conditions because her
`
`upstairs neighbors’ dog was deceased. Id. at 3. LaDeaux sues Sioux Falls
`
`Housing and East River Legal Services because they “did nothing to help” her.
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`Id. at 4. The complaint does not state what claims are brought against JL
`
`Properties, Department of Housing and Urban Development, Midwestern
`
`Mechanical, and Lloyd Companies. See id.
`
`
`
`LaDeaux seeks money damages for an unspecified amount. Id. at 5. She
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`claims she is entitled to damages for her constant moving since 2010
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`“[b]ecause [the] owners neglect their dwellings” and she “[g]ot sick from
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`dwellings.” Id. She moves to set aside the state court order of eviction and
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`seeks damages caused by deceit, acts constituting deceit, and fraud against
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`her as an individual. Id. at 4.
`
`B.
`
` Legal Background
`
`When a district court determines a plaintiff is financially eligible to
`
`proceed in forma pauperis under 28 U.S.C. § 1915(a), the court must then
`
`determine whether the complaint should be dismissed under 28 U.S.C.
`
`§ 1915(e)(2)(B). See Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir.
`
`1982) (per curiam); see also Key v. Does, 217 F. Supp. 3d 1006, 1007 (E.D.
`
`
`
`4
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 5 of 14 PageID #: 194
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`Ark. 2016). The court must dismiss a complaint if it “(i) is frivolous or
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`malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
`
`monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
`
`§ 1915(e)(2)(B).
`
`A court when screening under § 1915 must assume as true all facts well
`
`pleaded in the complaint. Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th
`
`Cir. 1995). Pro se and civil rights complaints must be liberally construed.
`
`Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted); see
`
`also Bediako v. Stein Mart, Inc., 35 F.3d 835, 839 (8th Cir. 2004) (citation
`
`omitted). Even with this construction, “a pro se complaint must contain specific
`
`facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th
`
`Cir. 1985) (citation omitted); see also Ellis v City of Minneapolis, 518 F. App’x
`
`502, 504 (8th Cir. 2013) (per curiam) (citation omitted).
`
`A district court has the duty to examine a pro se complaint “to determine
`
`if the allegations provide for relief on any possible theory.” Williams v. Willits,
`
`853 F.2d 586, 588 (8th Cir. 1988) (citing Bramlet v. Wilson, 495 F.2d 714, 716
`
`(8th Cir. 1974)). A complaint “does not need detailed factual allegations . . .
`
`[but] requires more than labels and conclusions, and a formulaic recitation of
`
`the elements of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly, 550
`
`U.S. 544, 555 (2007) (citations omitted). Twombly requires that a complaint’s
`
`“[f]actual allegations must be enough to raise a right to relief above the
`
`speculative level on the assumption that all of the allegations in the complaint
`
`are true[.]” Id. (citation and footnote omitted); see also Abdullah v. Minnesota,
`
`
`
`5
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 6 of 14 PageID #: 195
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`261 F. App’x 926, 927 (8th Cir. 2008) (per curiam) (noting that a “complaint
`
`must contain either direct or inferential allegations respecting all material
`
`elements necessary to sustain recovery under some viable legal theory” (citing
`
`Twombly, 550 U.S. at 554–63)). If a complaint does not contain these bare
`
`essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657,
`
`663–64 (8th Cir. 1985) (citation omitted) (explaining that a district court does
`
`not err when it dismisses a claim based on vague allegations or unsupported
`
`generalizations).
`
`C.
`
`Housing Accommodation
`
`The Americans with Disabilities Act (ADA) prohibits discrimination
`
`against a “qualified individual with a disability[.]” 42 U.S.C. § 12132. A valid
`
`claim under the ADA requires the plaintiff to allege that she has a disability
`
`that is protected by statute and that because of her disability she was denied
`
`“receipt of services or participation in programs or activities provided by a
`
`public entity.” Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (quoting
`
`42 U.S.C. § 12131(2)).
`
`LaDeaux alleges violations of her civil rights for not providing housing
`
`accommodations as required by the ADA. Docket 1 at 6. She does not allege in
`
`her complaint that she has a disability or was denied from participating in a
`
`protected program or activity. Id. The only assertion LaDeaux makes related to
`
`a disability is the failure of Utterback to install grab bars, but she does not
`
`provide any facts asserting that these grab bars were related to a disability. Id.
`
`at 4. LaDeaux does assert that Utterback was associated with a public or
`
`
`
`6
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 7 of 14 PageID #: 196
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`government-funded activity and that she was denied receipt of services or
`
`participation in programs by a public entity, but she does not allege that her
`
`denial of services or participation in programs was due to her disability. See id.
`
`Thus, LeDeaux’s claim regarding housing accommodations fails to state a claim
`
`upon which relief can be granted and is dismissed without prejudice under 28
`
`U.S.C. § 1915(e)(2)(B)(ii).
`
`D.
`
`False Claims Act
`
`LaDeaux asserts a cause of action under the False Claims Act (FCA).
`
`Docket 1 at 6. Under 31 U.S.C. § 3729(a)(1)(A), a person cannot knowingly
`
`present or cause to be presented “a false or fraudulent claim for payment or
`
`approval.” “A prima facie case under § 3729(a)(1)(A) requires that ‘(1) the
`
`defendant made a claim against the United States; (2) the claim was false or
`
`fraudulent; and (3) the defendant knew the claim was false or fraudulent.’ ”
`
`Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1070 (8th Cir. 2016)
`
`(quoting United States v. Basin Elec. Power Coop., 248 F.3d 781, 803 (8th Cir.
`
`2001)). “Pro se plaintiffs may not bring False Claims Act actions.” Marshall v.
`
`Wells Fargo & Co., 2021 U.S. Dist. LEXIS 192634, at *2 (E.D. Ark Oct. 6, 2021)
`
`(citing United States v. Onan, 190 F.2d 1, 6–7 (8th Cir. 1951)).
`
`Here, LaDeaux cannot bring a claim under the False Claims Act as a pro
`
`se plaintiff. See Marshall, 2021 U.S. Dist. LEXIS 192634, at *2; Onan, 190 F.2d
`
`at 6–7. Additionally, LaDeaux has not made a claim against the United States.
`
`Thus, LaDeaux’s claim under the False Claims Act is dismissed without
`
`prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
`
`
`
`7
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 8 of 14 PageID #: 197
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`E.
`
`Claims Against Other Defendants
`
`LaDeaux’s complaint names as defendants Sioux Falls Housing, East
`
`River Legal Services, JL Properties, Department of Housing and Urban
`
`Development, Midwestern Mechanical, Lloyd Companies, and Animal Control.
`
`Docket 1 at 3–4. The complaint does not assert any claims against these
`
`defendants or otherwise allege that they were involved with violating LaDeaux’s
`
`constitutional rights or are liable for the state law tort claims alleged in the
`
`complaint. Thus, LaDeaux fails to state a claim upon which relief can be
`
`granted, and the claims against Sioux Falls Housing, East River Legal Services,
`
`JL Properties, Department of Housing and Urban Development, Midwestern
`
`Mechanical, Lloyd Companies, and Animal Control are dismissed without
`
`prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
`
`F.
`
`Subject Matter Jurisdiction
`
`Because federal courts are courts of limited jurisdiction, see Kokkonen v.
`
`Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), the court must
`
`consider whether LaDeaux’s complaint involves a dispute or controversy within
`
`its jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
`
`that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
`
`1.
`
`Diversity of Citizenship
`
`Diversity jurisdiction exists when the parties are completely diverse, and
`
`the amount in controversy exceeds $75,000. 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.” OnePoint Sols., LLC v. Borchert, 486
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`
`
`8
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 9 of 14 PageID #: 198
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`F.3d 342, 346 (8th Cir. 2007) (citation omitted). LaDeaux, the party seeking a
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`federal forum, bears the burden of demonstrating that the parties are citizens
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`of different states. Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992).
`
`LaDeaux is a resident of South Dakota. Docket 1 at 6. While she does not
`
`specify the citizenship of all defendants, LaDeaux provided a South Dakota
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`address for all defendants named in the case and states that the first
`
`defendant is a resident of Minnehaha County. Id. at 2, 6. LaDeaux seeks
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`money damages, but she has not alleged that the amount in controversy
`
`exceeds $75,000. See id at 5. Thus, LaDeaux has not established diversity
`
`jurisdiction.
`
`2.
`
`Federal Question
`
`District courts have jurisdiction to hear “civil actions arising under the
`
`Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
`
`LaDeaux’s federal ADA and False Claims Act claims and other civil rights
`
`violations have been dismissed. A plaintiff must be able to bring a suit under
`
`federal law for the claim to arise under the Constitution, laws, or treaties of the
`
`United States. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). LaDeaux
`
`alleges she had a Housing Choice Voucher from the Sioux Falls Housing and
`
`Redevelopment Commission, which is part of the federal Section 8 Housing
`
`Program. Docket 1-1 at 18; Sioux Falls Hous. & Redevelopment Comm’n,
`
`Section 8 Housing Choice Voucher, https://www.siouxfallshousing.org/housing-
`
`programs/section-8-housing-choice-voucher. When analyzing a Section 8
`
`program claim, the Eighth Circuit has held that “Congress did not intend to
`
`
`
`9
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 10 of 14 PageID #: 199
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`create enforceable rights for individual applicants nor to allow private
`
`enforcement of the Section 8 program.” Hill v. Grp. Three Hous. Dev. Corp., 799
`
`F.2d 385, 394 (8th Cir. 1986). See also Gladney v. Sureluck Homes LLC, 2013
`
`WL 2182797, at *4 (W.D. Mich. May 20, 2013) (stating that “[t]he mere fact that
`
`part of plaintiff’s rent was paid under the federally funded Housing Choice
`
`Voucher Program does not displace state law, which generally governs the
`
`relationship between landlord and tenant, nor does it create a federal claim for
`
`allegedly wrongful eviction.”).
`
`LaDeaux received funding from the Rosebud Sioux Tribe Emergency
`
`Rental Assistance Program (RSTERAP). Docket 1-1 at 2, 18. The RSTERAP
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`appears to be funded under the Consolidated Appropriations Act (CAA) of 2021,
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`15 U.S.C. § 9058a. Several courts have held that rental assistance programs
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`under the CAA do not create a private right of action to establish federal
`
`jurisdiction. See Turner v. Hamilton Cnty. Tr. Ass’n, 2022 WL 1606289, at *4
`
`(S.D. Ind. May 20, 2022) (holding that “there is no private right of action
`
`created, expressly or impliedly, by Congress in the CAA or the CARES ACT”
`
`and a cause of action is necessary for federal question jurisdiction under 28
`
`U.S.C. § 1331); Jasmine v. Gainey, 2022 WL 10662879, at *3 (W.D. Pa. Aug.
`
`11, 2022), report and recommendation adopted, 2022 WL 10516429 (W.D. Pa.
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`Oct. 18, 2022) (holding that the CAA does not create a private cause of action
`
`and “[t]here is no authority to suggest that an alleged misuse of [Emergency
`
`Rental Assistance Program] funds by the [tenants] converts the alleged breach
`
`of an agreement to pay rent into a private cause of action under federal law.”).
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`10
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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 11 of 14 PageID #: 200
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`Several district courts have also held that if federal statutes are
`
`implicated in a breach of contract claim, the claim arises under state law, not
`
`federal law. See Jafari v. Hous. Auth., 2018 U.S. Dist. LEXIS 112660, at *15 (D.
`
`Neb. June 15, 2018), report and recommendation adopted, 2018 U.S. Dist.
`
`LEXIS 111839 (D. Neb. July 5, 2018) (holding that while federal statutes are
`
`implicated, claims about breach of contract for federal funding for housing
`
`arise under state law, not federal law); Cain v. Aradhyula, 2015 WL 5829819,
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`at *2 (E.D. Mo. Oct. 6, 2015) (collecting cases). See also Falzarano v. United
`
`States, 607 F.2d 506, 511 (1st Cir. 1979) (holding that federally subsidized
`
`housing project tenants cannot establish federal jurisdiction under a third-
`
`party beneficiary theory when private defendants were siphoning federal funds
`
`provided for the housing project). While the court is not obligated to follow
`
`decisions from other jurisdictions, the court finds these cases persuasive in
`
`determining whether this court has jurisdiction based on LaDeaux receiving
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`federal funding.
`
`The court by analogy finds that LaDeaux has not established federal
`
`question jurisdiction solely because tribal funds were used as part of her rental
`
`assistance. See Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668,
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`672 (8th Cir. 1986) (holding that a housing authority created by and on behalf
`
`of a tribe was not sufficient for federal question jurisdiction and that “[b]ecause
`
`[a construction company’s] breach of contract claim [against the housing
`
`authority] does not require interpretation of the validity, construction or effect
`
`of federal law, no subject matter jurisdiction over the Housing Authority based
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`
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`11
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`

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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 12 of 14 PageID #: 201
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`on federal question exist[ed]”); All Mission Indian Hous. Auth. v. Magante, 526
`
`F. Supp. 2d 1112, 1115 (S.D. Cal. 2007) (holding that under the Native
`
`American Housing Assistance and Self-Determination Act “a standard landlord-
`
`tenant dispute cannot be said to arise under federal law simply because the
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`landlord is the housing authority for a number of federally-recognized tribes
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`that is charged with using federal funds to provide subsidized housing to tribal
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`members.”).
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`Thus, LaDeaux’s complaint is dismissed without prejudice pursuant to
`
`Federal Rule of Civil Procedure 12(h)(3) due to lack of subject-matter
`
`jurisdiction.1
`
`G.
`
`Rooker-Feldman
`
`LaDeaux moves to set aside and to appeal to the district court from her
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`state court eviction lawsuit. Docket 1 at 4; Docket 1-1 at 14, 32–35.
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`The Rooker-Feldman doctrine bars attempts by parties to undermine state
`
`court decisions. The doctrine recognizes that district courts, with the exception
`
`of habeas corpus petitions, “lack subject matter jurisdiction over challenges to
`
`state court judgments.” Ace Constr. v. City of St. Louis, 263 F.3d 831, 832–33
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`(8th Cir. 2001) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476
`
`(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)). Federal
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`constitutional claims, like claims under 42 U.S.C. § 1983, are “inextricably
`
`
`1 LaDeaux has pleaded state-law claims that may be viable, but it would not be
`appropriate for the federal court to evaluate the merits of the state-law claims
`because the federal court lacks subject-matter jurisdiction. If she has valid
`state-law claims, LaDeaux would need to pursue those claims in state court.
`12
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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 13 of 14 PageID #: 202
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`intertwined” with a state court judgment if the federal claim only succeeds “to
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`the extent that the state court wrongly decided the issue.” Ace Constr., 263
`
`F.3d at 833. The Rooker-Feldman doctrine most often applies in cases where
`
`the individual who lost in state court complains in federal court of injuries
`
`caused by the state court judgment. See Exxon Mobil Corp. v. Saudi Basic
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`Indus. Corp., 544 U.S. 280, 284 (2005). To the extent that LaDeaux requests
`
`monetary damages and an appeal of the judgment and decree in her state
`
`eviction proceeding, that claim is barred by the Rooker-Feldman doctrine.
`
`Thus, it is ORDERED:
`
`1.
`
`2.
`
`3.
`
`4.
`
`That LaDeaux’s motion to proceed in forma pauperis (Docket 2) is
`
`granted.
`
`That LaDeaux’s ADA claim is dismissed without prejudice under 28
`
`U.S.C. § 1915(e)(2)(B)(ii).
`
`That LaDeaux’s claim under the False Claims Act is dismissed
`
`without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
`
`That LaDeaux’s claims for monetary damages and an appeal of the
`
`judgment and decree in her state eviction proceeding are dismissed
`
`without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
`
`5.
`
`That LaDeaux’s claims against Sioux Falls Housing, East River Legal
`
`Services, JL Properties, Department of Housing and Urban
`
`Development, Midwestern Mechanical, Lloyd Companies, and
`
`Animal Control are dismissed without prejudice under 28 U.S.C.
`
`§ 1915(e)(2)(B)(ii).
`
`
`
`13
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`Case 4:23-cv-04084-KES Document 8 Filed 10/17/23 Page 14 of 14 PageID #: 203
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`6.
`
`That LaDeaux’s complaint is dismissed without prejudice pursuant
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`to Federal Rule of Civil Procedure 12(h)(3) due to lack of subject-
`
`matter jurisdiction.
`
`7.
`
`That LaDeaux’s state-law claims of slander, defamation of character,
`
`deceit, fraud, and uninhabitable conditions are dismissed without
`
`prejudice under 28 U.S.C. § 1367(c)(3), without considering the
`
`merits of the claims, because the court lacks subject matter
`
`jurisdiction.
`
`8.
`
`That LaDeaux’s motion for appointment of counsel (Docket 3) is
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`denied as moot.
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`Dated October 17, 2023.
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` BY THE COURT:
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` /s/ Karen E. Schreier
` KAREN E. SCHREIER
` UNITED STATES DISTRICT JUDGE
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`14
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