United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
MIRANDO, UNITED STATES MAGISTRATE JUDGE.
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). The Court recommends this case be
dismissed for the reasons stated herein.
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.
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.
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.
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.
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
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.
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.
Sufficiency of the Complaint
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).
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 “contain either
direct or inferential ...