United States District Court, N.D. Florida, Tallahassee Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
November 28, 2017, the pro se Plaintiff submitted another
civil complaint, ECF No. 1, and a motion seeking leave to
proceed in forma pauperis, ECF No. 2. This is the third case
Plaintiff has initiated in four months against this same
Defendant. Nevertheless, good cause having been shown
in the motion, Plaintiff is granted in forma pauperis status.
The Clerk of Court shall file Plaintiff's complaint
without requiring payment of the filing fee.
notice is taken that this case is Plaintiff's sixth
lawsuit which seeks to challenge the foreclosure of her
property in January 2010. Most recently, Plaintiff filed her
fourth case (case number 4:17cv352-MW/CAS) on August 7, 2017.
That case was dismissed on August 22, 2017, because it failed
to state a claim and was barred by the doctrine of collateral
estoppel. ECF No. 6 of that case.
fifth case (case number 4:17cv395-MW/CAS) was dismissed just
last month. The basis for this case is the same as she has
brought previously, and her factual allegations are no
greater. Plaintiff lacks any clear statement of fact showing
statutory violations. Thus, this case, like her prior two
cases, fails to state a claim.
is no need to detail Plaintiff's prior cases as that was
sufficiently outlined in the Report and Recommendation, ECF
No. 4, entered in case number 4:17cv352. The basic facts were
also stated in the Report and Recommendation, ECF No. 4,
entered in Plaintiff's most recently dismissed case, case
number 4:17cv395. Plaintiff previously filed case number
4:15cv491-RH/CAS against, among others, Bank of America, and
alleged discrimination and a violation of the Fair Housing
Act. The case was dismissed for failure to state a claim
because Plaintiff “alleged no facts plausibly
suggesting she [had] suffered discrimination of any
kind.” ECF No. 11 at 2 of that case.
then filed case number 4:16cv212-RH/EMT. Again, Plaintiff
brought the same claims premised on the same basic facts
against the same Defendant, Bank of America. The case was
dismissed as barred by the doctrine of res judicata. ECF Nos.
13, 15 of case # 4:16cv212.
third case (case number 4:16cv773-RH/CAS) was also against
Bank of America. It, too, was dismissed as barred by res
noted above, Plaintiff's fourth case was dismissed
because it failed to state a claim and was barred by the
doctrine of collateral estoppel. ECF Nos. 6-7 of case #
4:17cv352-MW/CAS. Although res judicata was the basis for
dismissal of Plaintiff's second and third cases, it was
not appropriate in dismissing the fourth case because
Plaintiff named the Bank of New York Mellon as a Defendant
whereas her prior cases named the Bank of America as the
Defendant. This case, however, is again brought against the
same party as was named in Plaintiff's fourth and fifth
cases. It's based on the same events and asserts the same
claims, cursory as they may be. Thus, this case is barred by
the doctrine of res judicata.
stated in the Report and Recommendation entered in case
number 4:17cv395, “Plaintiff cannot continue filing
cases based on the events from 2010.” ECF No. 4 at 4.
Plaintiff has “had multiple bites at the apple, and
indeed, the apple is bitten down to the core.”
Spinelli v. Capital One Bank, No.
8:08-CV-132-T-33EAJ, 2010 WL 11475480, at *2 (M.D. Fla. Mar.
15, 2010). Plaintiff is cautioned to cease, or face
sanctions. Six dismissals are more than sufficient notice to
Plaintiff that her claims are frivolous.
case should be dismissed, and this recommendation is made sua
sponte. Doing so “is fully consistent with the policies
underlying res judicata: it is not based solely on the
defendant's interest in avoiding the burdens of twice
defending a suit, but is also based on the avoidance of
unnecessary judicial waste.” United States v. Sioux
Nation, 448 U.S. 371, 432, 100 S.Ct. 2716, 65 L.Ed.2d
844 (1980) (Rehnquist, J., dissenting) (citations omitted)
(quoted in Arizona v. California, 530 U.S. 392, 412,
120 S.Ct. 2304, 2318, 147 L.Ed.2d 374, supplemented, 531 U.S.
1, 121 S.Ct. 292, 148 L.Ed.2d 1 (2000)). Nevertheless, this
Report and Recommendation gives notice to Plaintiff and an
opportunity to be heard prior to dismissal. Plaintiff's
objections, if any, must be timely filed.
it is ORDERED:
1. Plaintiff's motion for in forma pauperis status, ECF
No. 2, is GRANTED.
2. The Clerk of Court shall file the complaint without
requiring payment of the filing fee.