Opinion
Civil Action 23-0030
05-05-2023
JAMES MOSLEY, Plaintiff, v. BANK OF AMERICA, et al., Defendants.
ORDER
HODGE, KELLEY B., J.
AND NOW, this 4th day of May, 2023, upon consideration of Plaintiff James Mosley's Motion for Leave to Proceed In Forma Pauperis (ECF No. 1), pro se Complaint (ECF No. 2), and Motion to Appoint Counsel (ECF No. 3), IT IS ORDERED that:
1. Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.
2. The Complaint is DEEMED filed.
3. The Clerk of Court is DIRECTED to correct the spelling of Defendant Kenneth Bemah's last name which is spelled incorrectly on the docket as “Bennett”.
4. The Complaint is DISMISSED for the reasons in the Court's Memorandum as follows:
a. Mosley's claims brought pursuant to 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
b. Mosley's claims brought pursuant to 42 U.S.C. § 1981 are DISMISSED WITHOUT PREJUDICE for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
c. Mosley's state law claims are DISMISSED WITHOUT PRJEUDICE for lack of subject matter jurisdiction.
5. Mosley may file an amended complaint within thirty (30) days of the date of this Order. Any amended complaint must identify all defendants in the caption of the amended complaint in addition to identifying them in the body of the third amended complaint and shall state the basis for Mosley's claims against each defendant. The amended complaint shall also state the basis for this Court's jurisdiction. The amended complaint shall be a complete document that does not rely on the initial Complaint or other papers filed in this case to state a claim. When drafting his amended complaint, Mosley should be mindful of the Court's reasons for dismissing the claims in his initial Complaint as explained in the Court's Memorandum. Upon the filing of an amended complaint, the Clerk shall not make service until so ORDERED by the Court.
6. Mosley's Motion to Appoint Counsel (ECF No. 3) is DENIED WITHOUT PREJUDICE.
7. The Clerk of Court is DIRECTED to send Mosley a blank copy of this Court's current standard form to be used by a self-represented litigant filing a civil action bearing the above-captioned civil action number. Mosley may use this form to file his amended complaint if he chooses to do so.
8. If Mosley does not wish to amend and instead intends to stand on his Complaint as originally pled, he may file a notice with the Court within thirty (30) days of the date of this Order stating that intent, at which time the Court will issue a final order dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall include the civil action number for this case.
9. If Mosley fails to file any response to this Order, the Court will conclude that Mosley intends to stand on his initial Complaint and will issue a final order dismissing this case. See Weber, 939 F.3d at 239-40 (explaining that a plaintiff's intent to stand on his complaint may be inferred from inaction after issuance of an order directing him to take action to cure a defective complaint).
BY THE COURT: