United States District Court, M.D. Florida, Ocala Division
REPORT AND RECOMMENDATION 
R. LAMMENS UNITED STATES MAGISTRATE JUDGE.
referral, this case is before the Court for consideration of
pro se Plaintiff's motion requesting to proceed
in forma pauperis. (Doc. 2). Previously, the undersigned
deferred ruling on Plaintiff's motion and, due to
deficiencies in the Complaint and in an abundance of caution,
allowed Plaintiff leave to file an Amended Complaint.
Plaintiff did so, and now the matter is again before the
undersigned for a frivolity review of the Amended Complaint
(Doc. 7) and a recommendation regarding Plaintiff's
motion to proceed in forma pauperis.
has filed an Amended Complaint purporting to bring claims
against the following defendants: EBSA, Local Government
Retirement System-Non FRS, City of Sunrise, FL, and Resource
Centers LLC, et al. Although the Amended Complaint does not
cite a Florida Statute, it purports to be a “Notice of
a Constitutional Challenge to a Statute under Rule
5.1.” (Doc. 7).
can be discerned from the Amended Complaint (Doc. 1),
Plaintiff wishes to bring a constitutional challenge to an
exemption under the Employee Retirement Income Security Act
(“ERISA”). Plaintiff alleges that his vested
accrued benefit totaling $196, 951.46 was misappropriated out
of the Sunrise General Employees Retirement Fund, and
fraudulently transferred into an account belonging to City
Carpet Cleaners. (Doc. 7, p. 1). Plaintiff also generally
alleges that ERISA regulations supersede state and local
laws, and argues that the City of Sunrise cannot arbitrarily
take away by ordinance property that Plaintiff contends he
already earned. (Doc. 7, p. 2). Plaintiff demands $487,
493.57, plus appreciation to the date of accrued benefit.
(Doc. 7, p. 3). The crux of Plaintiff's claim is that
“the City of Sunrise and Resource Centers LLC have to
date unlawfully withheld my protected benefits.” (Doc.
7, p. 1).
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). However, before
a plaintiff is permitted to proceed in forma
pauperis, the Court is obligated to review the complaint
to determine whether it is frivolous, malicious, “fails
to state a claim upon which relief may be granted[, ]”
or . . . “seeks monetary relief against a defendant who
is immune from such relief.” Id. §
1915(e)(2). If the complaint is deficient, the Court is
required to dismiss the suit sua sponte. Id.
lawsuit is frivolous if the plaintiff's realistic chances
of ultimate success are slight.” Clark v. Ga.
Pardons and Paroles Bd., 915 F.2d 636, 639 (11th Cir.
1984) (internal citations omitted). The district court may
dismiss a complaint under § 1915 on grounds of
frivolousness if an affirmative defense would defeat the
action. Id. at 640. For example, the absolute
immunity of the defendant would justify the dismissal of a
claim as frivolous. Id. at 640, n. 2. “When
the defense is apparent from the fact of a complaint or the
court's records, courts need not wait and see if the
defense will be asserted in a defensive pleading.”
Id. “Indigence does not create a
constitutional right to the expenditure of public funds and
the valuable time of the courts in order to prosecute an
action which is totally without merit.” Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (citing
Collins v. Cundy, 603 F.2d 825, 828 (10th Cir.
evaluating a complaint under § 1915, a document filed
pro se is to be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The bare minimum a
plaintiff must set forth in the complaint is found in
Fed.R.Civ.P. 8, and explained further in Iqbal and
Twombly. See Ashcroft v. Iqbal, 556 U.S.
662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). “A pleading that states a claim for relief
must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). While particularity is not required
under Fed.R.Civ.P. 8, as it is under Fed.R.Civ.P. 9,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
Eleventh Circuit utilizes a two-pronged approach in its
application of the holdings in Iqbal and
Twombly. First, “eliminate any allegations in
the complaint that are merely legal conclusions, ” and
then, “where there are well-pleaded factual
allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.'” Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 679). In applying these
principles, the Court can infer “‘obvious
alternative explanation[s], ' which suggest lawful
conduct rather than the unlawful conduct the plaintiff would
ask the court to infer.” Id. (quoting
Iqbal, 556 U.S. at 682). In short, the law requires
something more “than an unadorned
Iqbal, 556 U.S. at 678.
federal courts are courts of limited jurisdiction and
therefore, have an obligation to inquire into their subject
matter jurisdiction. See Kirkland v. Midland Mortgage
Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). Parties
seeking to invoke the limited jurisdiction of the federal
court over a cause of action must show that the underlying
claim is based upon either diversity jurisdiction
(controversies exceeding $75, 000 between citizens of
different states) or the existence of a federal question
(i.e., “a civil action arising under the Constitution,
laws, or treaties of the Unites States”) in which a
private right of action has been created or is implied by
Congressional intent. See 28 U.S.C. § 1331 and
initial matter, like the original complaint, Plaintiff's
Amended Complaint fails to comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Plaintiff's Complaint is not a short and plain statement
of his claims, as required by Rule 8, Fed. R. Civ.
P.Rather, once again, the Amended Complaint
lacks even a simple narrative explaining the facts and law
that give rise to Plaintiff's claim.
and, more importantly, it appears that Plaintiff has already
unsuccessfully attempted to litigate these same claims
numerous times in Federal Court in Florida. Plaintiff brought
essentially the same claims in Alfonzo v. Resource
Centers, LLC, et al., Case No. 5-13-cv-411-Oc-WTH-PRL.
In that case, Plaintiff brought nearly identical claims for
allegedly unlawfully withholding vested accrued benefits. By
Order entered September 18, 2014, the District Judge observed
that Plaintiff's claims lacked any legal merit, and
dismissed the action for lack of subject matter jurisdiction.
(Case No. 5-13-cv-411-Oc-WTH-PRL, Doc. 28). The Court also
found that there was “no set of facts which Mr. Alfonso
could allege - particularly in light of the fact that he has