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Perry v. Mercy Housing

December 21, 2011

PERRY
v.
MERCY HOUSING



Name of Assigned Judge Sitting Judge if or Magistrate Judge Blanche M. Manning Other than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT:

Mr. Perry's motion for leave to proceed in forma pauperis [#4] is granted, his motion for appointment of counsel [#5] is denied, and his complaint is dismissed for lack of jurisdiction pursuant to 28 U.S.C. § 1915(e)(2)(B). The clerk is directed to enter a Rule 58 judgment and to terminate this case from the court's docket.

# [ For further details see text below.] Docketing to Mail Notices.

STATEMENT

Pro se plaintiff Terrence Perry seeks leave to proceed in forma pauperis. This court has the power to screen complaints filed by all litigants prior to service, regardless of their fee status, and must dismiss a complaint if it fails to state a claim or the court lacks jurisdiction. 28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake , 196 F.3d 778, 783 (7th Cir. 1999). Because Mr. Perry is proceeding pro se, the court has construed his filings liberally.

With respect to his fee status, the motion for leave to proceed in forma pauperis is granted as Mr. Perry has established that he is financially eligible for this relief. Mr. Perry also requests that the court appoint counsel. Civil litigants do not have a right, either constitutional or statutory, to counsel. Zarnes v. Rhodes , 64 F.3d 285,288 (7th Cir. 1995). The court may nevertheless, in the exercise of its discretion, request counsel to represent indigents in appropriate cases. Id . A litigant who seeks appointment of counsel must first, as a threshold matter, make a reasonable attempt to secure private counsel. Id . If a litigant satisfies this burden, the court should consider the following nonexhaustive list of factors: "(1) the merits of the plaintiff's claims; (2) whether the plaintiff can investigate crucial facts; (3) whether trained counsel will better expose the truth; (4) the plaintiff's ability to present the case; and (5) the complexity of the relevant legal issues." Id . In essence, this inquiry boils down to the simple question, "given the difficulty of the case, [does] the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel [make] a difference in the outcome?" Id . The court finds that Mr. Perry sufficiently articulated the facts that form the basis of his claims and, therefore, in the exercise of its discretion, denies the motion for appointment of counsel.

The court thus turns to the allegations in the complaint. Mr. Perry alleges that he resides at the South Loop Apartments, 1521 South Wabash Street, Chicago, which is managed by Mercy Housing. Mercy Housing appears to be a non-profit organization that develops, finances, and operates affordable housing and supportive programs. Mr. Perry's complaint focuses on three areas. First, he asserts that his lease was violated when unspecified people entered his apartment without permission. Those people engaged in "potential theft and or planted criminal materials particularly illegal substances -- illegal firearms." Complaint at ¶ 7. In response to the inquiry on the complaint form stating "Plaintiff was charged with one or more crimes, specifically: [fill in the blank]," Mr. Perry responded, "None!" Id . at ¶ 8. He also alleges that Tyra Young, Percie Wilkens, and Head Janitor Joe (all presumably Mercy Housing employees) entered his unit and "moved things around." Id . at ¶ 10.

Second, Mr. Perry contends that the building management are liable for conspiracy because they eavesdropped on him and had other tenants do so. It also engaged in "sabotage of functional units" and failed to render services. Id . at ¶ 8.

Third, Mr. Perry asserts that he was the victim of discrimination based on his sexual orientation because other tenants inquired about his sexual orientation. He also alleges that after he complained about the inquiries, Mercy Housing staff threatened to have him evicted.

Jurisdiction

Mr. Perry filed suit in a federal court. A federal court has jurisdiction ( i.e. , power) to consider disputes based on state law between citizens of different states where the amount at issue exceeds $75,000. 28 U.S.C. § 1331. This kind of jurisdiction is inapplicable as it appears that Mr. Perry and at least one defendant are Illinois citizens. The court also may consider disputes arising under federal law. 28 U.S.C. § 1331. The court must, therefore, determine whether the complaint sets forth any colorable federal claims.

Discussion

The court first considers Mr. Perry's claim that Mercy Housing employees entered his apartment without his permission. The Fourth Amendment to the United States Constitution governs searches. The Seventh Circuit has held that, "[t]he Fourth Amendment's purpose is to protect citizens against unreasonable searches and seizures by the government. It does not apply, however, to searches or seizures performed by private individuals." United States v. Ginglen , 467 F.3d 1071, 1074 (7th Cir. 2006), citing Camara v. Mun. Court of City & County of S.F. , 387 U.S. 523, 528 (1967) and United States v. Jacobsen , 466 U.S. 109, 113 (1984). A search performed by a private individual may be actionable under the Fourth Amendment if that individual was acting as a government "instrument or agent." Id . This test is satisfied if "the government knew of and acquiesced in the intrusive conduct and whether the private party's purpose in conducting the search was to assist law enforcement ...


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