This cause comes before the Court for consideration of Plaintiff Mariam Malone Colette Martinez's ("Plaintiff") Motion for Leave to Proceed In Forma Pauperis (Doc. No. 2), filed on July 21, 2011. United States Magistrate Judge David A. Baker submitted a Report and Recommendation ("R & R") (Doc. No. 5) recommending that Plaintiff's Motion be denied and Plaintiff's complaint (Doc. No. 1) be dismissed with prejudice. For reasons discussed blow, the Court agrees with the Magistrate Judge's ultimate disposition of the case in that Plaintiff's Motion for Leave to Proceed In Forma Pauperis is denied and her complaint is dismissed with prejudice.
Plaintiff filed a complaint against several Defendants, including two Orlando Police Officers, Young C. Hall ("Hall") and Anna Arriage ("Arriage"),*fn1 and an Assistant City Attorney for the City of Orlando, Martha Lee Lombardy ("Lombardy"). (Doc. No. 1 at 1). The Complaint alleges several counts, including "hostage taking" in violation of 18 U.S.C. § 1203, "malicious persecution" [sic] and abuse of process in violation of 28 U.S.C § 2680 [sic], and "emotional detriment." (Id. at 3-4). Plaintiff's claims arise out of her arrest on August 29, 2008 following her non-payment of a cab fee and subsequent 9 days spent in jail.*fn2 (Id. at 1). Plaintiff now seeks "compensatory restitution, for punitive damages" in the sum of $3 million. (Id. at 5).
Though her complaint is largely incomprehensible, Plaintiff alleges in that pleading that she attempted to pay for a cab ride with an American Express Pre-Paid Credit Card that was subsequently declined. (Id. at 1). Plaintiff states that when approached by "the arresting officer," she presented a copy of the two credit cards and receipts showing the cards contained sufficient funds. Id. Plaintiff claims that Hall and Arriage refused to accept the "funds," and told her to "beg" for money. (Id. at 2). Plaintiff states that she refused to "beg" for money because she had proof that she possessed "funds." (Id.). Plaintiff alleges that she was then arrested illegally and confined for 9 days. (Id. at 1-2). Plaintiff further alleges that because of the arrest, she lost 9 days of "legal moral pay." (Id. at 2). The Complaint alleges that the arrest amounted to hostage taking. (Id.). Plaintiff apparently bases her claim against Lombardy on the belief that Lombardy was responsible for Case No. 6:09-cv-802-Orl-28DAB being dismissed. (Id. at 4). Plaintiff claims that Lombardy lied to this Court when Lombardy stated that she could not contact Plaintiff and that Plaintiff refused to give an address in Tampa. (Id.).
In recommending that the undersigned judge deny Plaintiff's motion and dismiss Plaintiff's claim with prejudice, the Magistrate Judge noted in the R&R that Plaintiff has alleged the same set of facts in prior cases filed in this Court. (Doc. No. 5 at 3). See Case Nos. 6:09-cv-802-Orl-28DAB (complaint dismissed without prejudice); 6:09-cv-2080-Orl-22GJK (dismissal with prejudice); and 6:09-cv-1723-Orl-22GJK (dismissal with prejudice). As the Magistrate Judge also noted in the R&R, Plaintiff incorporates Case No. 09-cv-802 into her instant complaint. (Doc. No. 5) (referring to Doc. No. 1). In 9-802, Plaintiff sued Hall, Arriage and several other Defendants alleging several counts, including false arrest, false imprisonment, and malicious prosecution pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. (Doc. No. 12 in 9-802). Ultimately, 9-802 was dismissed without prejudice for failure to prosecute. (Doc. No. 71 in 9-802). In Case No. 09-cv-2080, Plaintiff sued only Hall for violation of her Fourth Amendment rights. (Doc. No. 1 in 9-2080). Because 9-2080 stemmed from the same set of facts as those forming the basis for Plaintiff's claims in 9-802, the Court dismissed 9-2080 with prejudice. (Doc. No. 7 in 9-2080). In Case No. 09-cv-1723, Plaintiff did not sue any of the Defendants named in the instant case, but this Court held that Plaintiff did not present an actionable federal claim and that sua sponte dismissal was warranted. (Doc. No. 17 in 9-1723). This Court also noted that the claims in 9-1723 were the exact claims raised in 9-802. (Id.).
In the R&R in the present case, the Magistrate Judge stated that the Court may dismiss a case or refuse to permit it to continue without payment of fees if the Court determines that the action is "frivolous or malicious." (Doc. No. 5 at 1) (citing 28 U.S.C. § 1915(e)(2)). The Magistrate Judge also stated that a district court may dismiss a complaint under Section 1915 on grounds of frivolousness if an affirmative defense would defeat the action. (Doc. No. 5 at 2) (citing Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 640, n.2 (11th Cir. 1990)). The Magistrate Judge identified res judicata and collateral estoppel as affirmative defenses that would justify dismissal of a claim as frivolous. (Doc. No. 5 at 3) (citing Clark, 915 F.2d at 641). The Magistrate Judge then found that res judicata and collateral estoppel act as affirmative defenses justifying dismissal of Plaintiff's instant claims. (Doc. No. 5 at 3).
A. Jurisdiction to Review the Magistrate's R&R
In response to the Magistrate's R&R, Plaintiff filed a "Motion to Appeal" (Doc. No. 7) seeking to "appeal the issue to the 11th Judicial Circuit Court of Appeals." (Id. at 1). Document Number 7 was docketed as a Notice of Interlocutory Appeal pursuant to 28 U.S.C. § 1291. The clerk treated it as a direct appeal to the Eleventh Circuit and transmitted an initial appeal package to that Court.
1. Direct Appeal Under 28 U.S.C. § 1291
To the extent that Document Number 7 is construed as a direct appeal, the appeal was premature and did not divest the Court of jurisdiction over the case. In Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998), the Court of Appeals for the Eleventh Circuit held that because a magistrate's report and recommendation had not been adopted by the district court at the time a notice of appeal was filed, the report and recommendation was not final and appealable. Id. at 1273. Thus, the Court dismissed the appeal for lack of jurisdiction. Id. Furthermore, a premature notice of appeal does not divest a district court of jurisdiction over a case. United States v. Kapelushnik, 306 F.3d 1090, 1094 (11th Cir. 2002) (citing United States v. Hitchmon, 602 F.2d 689 (5th Cir. 1979) (en banc)*fn3 , superseded by statute on other grounds as recognized in United States v. Martinez, 763 F.2d 1297, 1308, n.11 (11th Cir. 1985)).
Therefore, because the Court had not adopted the Magistrate's R&R (Doc. No. 5) before Plaintiff filed a Motion to Appeal (Doc. No. 7) the R&R, the Motion to Appeal was premature as a direct appeal and did not divest the Court of jurisdiction over the case.
Consistent with this approach, on October 24, 2011, the Eleventh Circuit dismissed the appeal for lack of ...