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Verrier v. Reno

United States District Court, M.D. Florida, Fort Myers Division

November 3, 2017

JOSEPH VERRIER, Plaintiff,
v.
MICHELLE RENO, ROBYNE WEHLE and BRADLEY ROUSKEY, Defendants.

          REPORT AND RECOMMENDATION[1]

          CAROL MIRANDO, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon review of Plaintiff Joseph Verrier's Affidavit of Indigency (Doc. 8), construed as a Motion to Proceed In Forma Pauperis, and Verrier's Motion to Proceed as an Independent Case (Doc. 8).[2] The Court recommends this case be dismissed for the reasons stated herein.

         I. Background

         On April 4, 2017, Verrier filed a Complaint under 42 U.S.C. § 1983 (“Section 1983”) against Defendants Michelle Reno, Robyne Wehle and Bradley Rouskey (collectively, “Defendants”). Doc. 1. Before initiating this lawsuit, Verrier previously filed a similar case (the “Companion Case”) against two other agents of the Florida Department of Corrections (“DOC”), which is pending before Senior United States District Judge John E. Steele. Verrier v. Perrino, No. 2:14-cv-744-FtM-29CM, 2016 WL 4162326, at *1 (M.D. Fla. Aug. 4, 2016). According to the facts of the Companion Case, Verrier is a Sex Offender probationer, who was convicted of child enticement in the State of Wisconsin. Id. The supervision of Verrier's probation was transferred to the State of Florida, and the DOC is currently supervising Verrier's probation. Id. Defendants are employees of the DOC, who are appointed probation supervisors of Verrier. Doc. 1 ¶ 7. Rouskey is a supervisor of Reno. Id. ¶ 48.

         Verrier alleges the following facts in his Complaint: as conditions of his probation, Wisconsin court orders permit him both limited internet access and internet access with agents' approval. Id. ¶ 13. In November 2016, Wehle and Reno did not grant approval for Verrier's internet access. Id. ¶ 16. Wehle also ordered Verrier to disable his email accounts, including his business ones. Id. ¶ 21. Despite Wehle's directives, Verrier sent an email to the Florida Attorney General in December 2016, and Wehle searched Verrier's residence and vehicle in February 2017, but did not find any computer. Id. ¶¶ 22-23. In February 2017, Verrier asked Reno to grant him internet access, which Reno denied. Id. ¶ 36.

         On March 8, 2017, Reno notified Verrier that he did not disable his email accounts as directed, which would be a violation of his probation condition. Id. ¶ 34. Reno informed Verrier that his violation was reported to the State of Wisconsin, and Verrier would not be allowed internet access for the remainder of his probation in Florida. Id. ¶ 24. On March 24, 2017, Reno also ordered Verrier to disable his email accounts within thirty days. Id. ¶ 39. In doing so, Reno showed a document Verrier signed, which allowed the State of Florida to impose any additional probation conditions on Verrier. Id. ¶ 42. Reno further directed Verrier to sign another document that stated, “Florida will apply the condition of no contact with any electronic devices of any kind that can access the internet or any form of social media. No access of any kind for the remainder of supervision while in Florida.” Id. ¶ 43. In addition, Reno and Wehle imposed GPS monitoring as part of Verrier's probation condition. Id. ¶ 46.

         Verrier argues his probation conditions restricting his internet access and electronically monitoring him violate various Florida statutes and the United States Constitution. Id. ¶¶ 49-68. Verrier also asserts Reno's directive to close all his email accounts was a retaliation for his filing of the Companion Case. Id. ¶¶ 69-72. As relief, Verrier seeks that the Court order Defendants to discontinue their GPS monitoring and lift the restriction on his internet access. Id. ¶¶ 73-74. Verrier further asks the Court to issue declaratory judgment that Reno may not direct him to close his email accounts. Id. ¶ 75.

         II. Indigency

         Verrier requests leave to proceed without prepayment of the filing fees and costs pursuant to 28 U.S.C. § 1915. In accordance with 28 U.S.C. § 1915, the Court must first determine that Verrier meets the requirements of indigency and then conduct a sufficiency review of the Complaint (Doc. 1).

         An individual may be allowed to proceed in forma pauperis if he declares in an affidavit that he “is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). When considering a motion filed pursuant to 28 U.S.C. § 1915(a), “[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004). A person need not be “absolutely destitute” or reduce himself to a public charge in order to proceed in forma pauperis; rather “an affidavit will be held sufficient if it represents that the litigant, because of [his] poverty, is unable to pay for the court fees and costs, and to support and provide necessities for [himself] and [his] dependents.” Martinez, 364 F.3d at 1307.

         Here, the Affidavit shows Verrier is qualified to proceed without prepayment of costs in this matter. He is self-employed and has no income. Doc. 2 at 2. Verrier owns a vehicle worth $200 and has earned $1, 000 in the past twelve months. Id. at 3. He makes monthly payments in the total amount of $1, 000 toward his various financial obligations. Id. at 4.

         III. Sufficiency of the Complaint

         Even assuming Verrier meets the financial criteria to proceed in forma pauperis, the Court must proceed to determine the sufficiency of Verrier's claims. Under Section 1915 of Title 28 of the United States Code, the Court shall dismiss an action if the action is deemed frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

         With respect to whether a complaint “fails to state a claim on which relief may be granted, ” section 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of Civil Procedure 12(b)(6), so courts apply the same standard in both contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels and conclusions” or “a formulaic recitation of the elements of a cause of action” that amount to “naked assertions” will not do. Ashcroft, 556 U.S. at 678 (quotations and citation omitted). Instead, a complaint must ‚Äúcontain either direct or inferential ...


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