United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motion:
MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS (Doc.
December 7, 2017
it is RECOMMENDED that the motion be
August 1, 2017, Plaintiff filed a Complaint “invok[ing]
the Constitution of the United States of America . . . and
other pertinent laws . . . .” Doc. 1. In the Complaint,
Plaintiff asserted that Defendants, which included her former
employer, were “bound by Federal Employment laws not to
discriminate . . . .” Id. at 2. In the
remainder of the Complaint, Plaintiff recounted certain facts
related to co-workers allegedly speaking Spanish to her, and
alleged that she was discriminated against because she asked
that Florida law be implemented, specifically that English be
deemed the official language. Id. at 3.
tandem with her Complaint, Plaintiff filed motions for the
appointment of counsel and to proceed in forma
pauperis. Docs. 2; 3. The Court denied the appointment
of counsel without prejudice, but allowed Plaintiff to
proceed in forma pauperis. Docs. 6; 7. At the time
of those Orders, the undersigned was unaware of
Plaintiff's history as a vexatious litigator. However,
shortly thereafter, Plaintiff filed a frivolous motion to
disqualify the United States District Judge assigned to this
case. See Doc. 13. United States District Judge
Carlos E. Mendoza entered an Order denying that motion to
disqualify because Plaintiff failed to provide a sufficient
basis for the requested relief or a memorandum of law in
support thereof, and because Plaintiff failed to comply with
the Local Rules of this Court. Doc. 16.
the Court has become aware that this Court has deemed
Plaintiff a vexatious litigant and has required that a United
States magistrate judge review any case filed by Plaintiff.
See In re Riethmiller, 8:12-cv-2516-EAK-TBM, Doc. 3
(M.D. Fla. Nov. 7, 2012). As stated by this Court, Plaintiff
has a long history of filing frivolous cases over which this
Court lacks jurisdiction. See id. Further, as
detailed in a pending motion by Defendant Peopleready
Florida, Inc., Plaintiff has filed dozens of frivolous
lawsuits in other state and federal courts. See Doc.
to the Court's prior Order requiring screening of
Plaintiff's filings, on November 28, 2017, the
undersigned issued a Report recommending that the Complaint
be dismissed, as not approved for filing, because it fails to
comply with Federal Rule of Civil Procedure 8(a). Doc. 28. In
addition, because the undersigned was not aware of the
screening order at the time Plaintiff's motion to proceed
in forma pauperis was granted, the undersigned
recommended that the Court sua sponte reconsider the
Order granting that motion, vacate the Order granting
Plaintiff leave to proceed in forma pauperis, deny
the motion to proceed in forma pauperis, dismiss the
Complaint, and direct the Clerk of Court to close this case.
Id. That Report and Recommendation remains pending.
addition to the foregoing, on October 23, 2017, Plaintiff
filed a notice of interlocutory appeal seeking to appeal
Judge Mendoza's Order denying Plaintiff's motion to
disqualify. Doc. 27. In that notice, Plaintiff makes
unsupported and rambling allegations in relation to Judge
Mendoza - and other state court judges unrelated to this case
- that, frankly, are mostly incoherent. See Doc. 27.
November 24, 2017, it appears that Plaintiff filed a motion
to appeal in forma pauperis before the Court of
Appeals as to her notice of interlocutory appeal. Doc. 32.
That motion was forwarded to this Court and docketed on
December 7, 2017, and is now before the undersigned for the
issuance of a Report and Recommendation. Id.
appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good
faith.” 28 U.S.C. § 1915(a)(3) (italics added);
see also Fed. R. App. P. 24(a)(3). “Whether an
appeal is taken in good faith is a matter within the
discretion of the trial court.” Busch v. Cty. of
Volusia, 189 F.R.D. 687, 692 (M.D. Fla. 1999) (citing
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331 (1948)). Good faith in this context must be judged by an
objective standard. Busch, 189 F.R.D. at 691. A
party does not proceed in good faith when he seeks to advance
a frivolous claim or argument. See Coppedge v. United
States, 369 U.S. 438, 445 (1962). A claim or argument is
frivolous when it appears the factual allegations are clearly
baseless or the legal theories are indisputably meritless.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989);
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.
1993). Or, stated another way, an informa
pauperis action is frivolous and, thus, not brought in
good faith, if ...