United States District Court, M.D. Florida, Jacksonville Division
REPORT AND RECOMMENDATION 
R. KLINDT, United States Magistrate Judge
cause is before the Court on the Application to Proceed in
District Court Without Prepaying Fees or Costs (Long Form)
(Doc. No. 2), filed August 30, 2017, that the Court construes
as a Motion to Proceed In Forma Pauperis
(“Motion”). Upon review of the file, the
undersigned recommends that the case be dismissed for
frivolity and failure to state a claim on which relief may be
initiated this action pro se on August 30, 2017 by
filing a Complaint (Doc. No. 1). On September 28, 2017,
Plaintiff filed a document titled “Reminder” that
the Court construed as a Notice (Doc. No. 4). On November 9,
2017, the undersigned entered an Order (Doc. No. 5;
“Order”), taking the Motion under advisement.
Observing that the Complaint appeared subject to dismissal
for frivolity and failure to state a viable claim upon which
relief may be granted, the undersigned directed Plaintiff to
file an Amended Complaint by November 30, 2017;
alternatively, Plaintiff was directed to pay the filing fee
by November 30, 2017. See Order at 1, 6. On November
21, 2017, Plaintiff filed his Amended Complaint (Doc. No. 6;
“Am. Compl” or “Amended Complaint”).
Plaintiff, however, has failed to cure the deficiencies
initially identified in the Order. See Order at 4.
may, upon a finding of indigency, authorize the commencement
of an action without requiring the prepayment of costs, fees,
or security. 28 U.S.C. § 1915. The Court's decision
to grant in forma pauperis status is discretionary.
See Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.
1983); Lane v. Fort Walton Beach Hous. Auth., 518 F.
App'x 904, 915 n.11 (11th Cir. 2013) (citation omitted).
While a litigant need not show she is “absolutely
destitute” to qualify for pauper status under §
1915, a litigant does need to show an inability “to pay
for the court fees and costs, and to support and provide
necessities for himself and his dependents.”
Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305,
1307 (11th Cir. 2004); see also Lane, 518 F.
App'x at 915 (citation omitted).
receiving an application to proceed in forma
pauperis must dismiss the case sua sponte if it
determines that the action “(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.” 28 U.S.C. §
1915(e)(2)(B). “In addition, a district court may
sua sponte consider subject matter jurisdiction at
any stage in the litigation and must dismiss a complaint if
it concludes that subject matter jurisdiction is
lacking.” Jackson v. Farmers Ins. Group/Fire Ins.
Exch., 391 F. App'x 854, 856 (11th Cir. 2010)
(unpublished) (citations omitted).
respect to frivolity, the United States Supreme Court has
observed that “a litigant whose filing fees and court
costs are assumed by the public . . . lacks an economic
incentive to refrain from filing frivolous, malicious, or
repetitive lawsuits.” Neitzke v. Williams, 490
U.S. 319, 324 (1989). A complaint filed in forma
pauperis that fails to state a claim under Rule
12(b)(6), Federal Rules of Civil Procedure
(“Rule(s)”), is not automatically frivolous.
Id. at 328. Instead, a court will dismiss a claim
based on frivolity pursuant to § 1915 when the claim
lacks arguable merit in either law or fact. Id. at
325; Mitchell v. Brown & Williamson Tobacco
Corp., 294 F.3d 1309, 1315 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001)). Accordingly, § 1915 requires dismissal when: (1)
the legal theories advanced are “indisputably
meritless, ” Nietzke, 490 U.S. at 327; (2) the
claims rely on factual allegations that are “clearly
baseless, ” Denton v. Hernandez, 504 U.S. 25,
32 (1992); or (3) when it appears that the plaintiff has
little or no chance of success, Bilal, 251 F.3d at
1349 (citation omitted).
respect to whether a complaint “fails to state a claim
on which relief may be granted, ” §
1915(e)(2)(B)(ii) mirrors the language of Rule 12(b)(6), so
courts apply the same standard in both contexts. Mitchell
v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997);
see also Alba, 517 F.3d at 1252 (citation omitted).
“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 Atl. 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. Id. (quotation and
citation omitted). Moreover, a complaint must “contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory.” Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)
(internal quotation and citation omitted).
se pleadings are held to a less strict standard than
pleadings filed by lawyers and thus are construed
liberally.” Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir. 2008) (citing Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998)).
Nevertheless, a court is under no duty to
“re-write” a plaintiff's complaint to find a
claim. Peterson v. Atlanta Hous. Auth., 998 F.2d
904, 912 (11th Cir. 1993).
it appears Plaintiff may be financially unable to pay the
filing fee, see Mo t i on at 1-5, a review of the
Amended Complaint reveals that it is subject to dismissal for
frivolity and failure to state a claim on which relief may be
Amended Complaint, Plaintiff states that “[t]his is
[his] final[ ] complaint asking for a greyhound ticket now to
[T]allahassee[, F]lorida, just next door, w[h]ere [he] can
reinstate both [his] cases that got dropped a few months
ago.” Am. Compl. at 2. He alleges he “put an order
of protection out on [Defendant] with the [C]lerk of the
[C]ircuit [C]ourt [D]uval [C]ounty . . . [on] October 30,
2017, ” but that it was denied. Id. Plaintiff
[On] November 7, 2017, I wrote a statement on events that
happen[ed] while in the [C]ity of Jacksonville to the
[Sheriff's Office]. Deputy Sheriff M.D. Richardson read
my statement and said [he] underst[ood] but [did not]
consider it a police report. I just wanted it on ...