Velayo v. Key Management Co.

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 1, 2024
• Docket: 24-3033
• Status: Unpublished

Opinion

Appellate Case: 24-3033 Document: 010111041489 Date Filed: 05/01/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 1, 2024 _________________________________ Christopher M. Wolpert Clerk of Court BENJAMIN VELAYO,

Plaintiff - Appellant,

v. No. 24-3033 (D.C. No. 5:24-CV-04006-HLT-ADM) KEY MANAGEMENT CO., (D. Kan.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________

Benjamin Velayo, proceeding pro se, filed a civil action in the United States

District Court for the District of Kansas. He claimed he was “entitled to . . .

$100,000” from “Angie Meister or the Key Management Company” because they

caused him to “almost bec[o]me homeless.” App. at 6-7.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3033 Document: 010111041489 Date Filed: 05/01/2024 Page: 2

The district court granted Mr. Velayo leave to proceed in forma pauperis

(“ifp”). A magistrate judge screened his pro se complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii). She recommended dismissal for failure to allege a basis for

subject matter jurisdiction. Mr. Velayo timely objected. The district court adopted

the magistrate judge’s report and recommendation, dismissed the claim without

prejudice, and closed the case.

Mr. Velayo timely appealed. He argues the district court erred because

Ms. Meister or someone else in the Key Management Company denied his apartment

rental application based on an incorrect statement that he had been previously

evicted. Aplt. Br. at 2. He alleges violations of “the law about unfair housing.” Id.

at 3.

“[W]e review de novo a district court’s sua sponte dismissal pursuant to

28 U.S.C. § 1915(e)(2) in an in forma pauperis proceeding.” Vasquez Arroyo v.

Starks, 589 F.3d 1091, 1094 (10th Cir. 2009). Because Mr. Velayo appears pro se,

we construe his filings liberally but do not serve as his advocate. Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

Mr. Velayo’s complaint fails to allege any basis for jurisdiction, including

diversity or federal question jurisdiction. Mr. Velayo does not claim the parties are

diverse, see 28 U.S.C. § 1332, and he indicated on his form complaint that all parties

are Kansas citizens. Nor does the complaint state a federal question. See id. § 1331.

Although Mr. Velayo checked the box in the form complaint alleging a civil-rights

2 Appellate Case: 24-3033 Document: 010111041489 Date Filed: 05/01/2024 Page: 3

violation, the complaint did not otherwise mention civil rights or reference a

particular federal law.

In his brief to this court, Mr. Velayo alleges violations of “the law about unfair

housing.” Aplt. Br. at 3. But even if that were specific enough to show he alleges a

violation of federal and not state housing law, “[a] federal court’s jurisdiction must

clearly appear from the face of a complaint,” and he raised a violation of housing law

for the first time in his appellate brief. Whitelock v. Leatherman, 460 F.2d 507, 514

(10th Cir. 1972); see Wall v. Tanner Clinic, 691 F. App’x 525, 526 (10th Cir. 2017)

(holding plaintiff failed to allege diversity or federal question jurisdiction on the face

of the complaint).

We affirm the district court’s dismissal.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge