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Azevedo v. Florida Department of Revenue Child Support Customer Services

United States District Court, M.D. Florida, Orlando Division

November 12, 2017

JOSE PEDRO AZEVEDO, Plaintiff,
v.
FLORIDA DEPARTMENT OF REVENUE CHILD SUPPORT CUSTOMER SERVICES, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion:

         MOTION: AFFIDAVIT OF INDIGENCY (Doc. No. 2)

         FILED: July 17, 2017 THEREON it is RECOMMENDED that the motion be DENIED and Plaintiff be directed to file an amended complaint and a renewed motion to proceed in forma pauperis.

         On July 17, 2017, pro se Plaintiff Jose Pedro Azevedo instituted this action by filing “Notice of Disestablishment of Paternity on the Basis of Sec. 466 42 U.S.C. §666(a)(5)(D)(iii) Fraud and Duress” (the “Complaint”). Doc. No. 1. Plaintiff filed an Affidavit of Indigency on the same day, which is interpreted as a request to proceed without prepaying fees and costs (the “Motion”). Doc. No. 2.

         I. APPLICABLE LAW

         The United States Congress requires the district court to review a civil complaint filed in forma pauperis and dismiss any such complaint that is frivolous, malicious or fails to state a claim. 28 U.S.C. § 1915.[1] The mandatory language of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis. Section 1915(e)(2) provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that --
(A) the allegation of poverty is untrue; or
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

         The Local Rules of the United States District Court for the Middle District of Florida also govern proceedings in forma pauperis. Pursuant to Local Rule 4.07(a), the Clerk dockets, assigns to a judge, and then transmits to the judge cases commenced in forma pauperis. The district court assigns to United States Magistrate Judges the supervision and determination of all civil pretrial proceedings and motions. Local Rule 6.01(c)(18). With respect to any involuntary dismissal or other final order that would be appealable if entered by a district judge, the United States Magistrate Judge may make recommendations to the district judge. Id. The Court may dismiss the case if satisfied that the action is frivolous or malicious under section 1915, or may enter such other orders as shall seem appropriate. Local Rule 4.07(a).

         A. Discretion Under 28 ...


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