United States District Court, M.D. Florida, Tampa Division
NICKOLAS A. MELLS, Plaintiff,
CHRISTINE WEIZMANN and FLORIDA DEPARTMENT OF REVENUE, Defendants.
ARNOLD SANS ONE United States Magistrate Judge.
A. Mells seeks to proceed in this action in forma
pauperis. (Doc. 5).
court, upon a finding of indigency, may authorize the
“commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor.” 28
U.S.C. § 1915. After reviewing the affidavit of
indigency to determine the economic status of the litigant,
the court must review the case and dismiss it sua sponte if
it is frivolous, malicious, fails to state a claim, or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B); see Martinez v. Kristi Cleaners,
Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (per curiam)
Mr. Mells failed to provide the necessary affidavit to
proceed in forma pauperis. A party seeking to
proceed in forma pauperis must submit an affidavit
that includes a statement of all the assets he possesses, as
well as any financial obligations. See 28 U.S.C.
§ 1915(a). Here, Mr. Mells submitted a handwritten
motion without an affidavit listing any assets he owns or any
financial obligations. (See Doc. 5). Therefore, the
court will defer ruling on Mr. Mells's motion for leave
to proceed in forma pauperis. The required affidavit
is attached to this order and is also available on the
court's website at
Mr. Mells must submit the affidavit by January 26,
the court determines whether the action is frivolous or
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is
immune from such suit. While the court holds complaints in
pro se actions to less stringent pleading standards, pro se
plaintiffs remain subject to the same law and rules of court
as a litigant represented by counsel. See Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
start, Mr. Mells's complaint fails to comply with Federal
Rule of Civil Procure 10(a) as it is unclear against whom Mr.
Mells is bringing his cause of action. In the caption of his
complaint, Mr. Mells lists Christine Weizmann and the Florida
Department of Revenue (“the Department”) as the
defendants. (Doc. 1, p. 1). But, in the body of his
complaint, Mr. Mells claims that the Florida Department of
Revenue has no standing on behalf of Christine Weizmann.
(Id.). Federal Rule of Civil Procedure 10(a)
requires that the title of the complaint include the names of
all parties. In amending his complaint, Mr. Mells must
include only the names of the parties against whom he intends
to bring his cause of action.
Mells's complaint also fail to comply with Federal Rule
of Civil Procedure 8(a). Rule 8(a) requires that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” While
Mr. Mells included the case number to which his current cause
of action relates, he has not provided any details about the
case showing he is entitled to relief. Moreover, Mr.
Mells's complaint does not comply with Federal Rule of
Civil Procedure 10(b), which requires a plaintiff to state
his claims in numbered paragraphs. See Fed. R. Civ.
P. 10(b). Mr. Mells must ensure that his amended complaint
complies with the Federal Rules of Civil Procedure.
to the substance of his claims, Mr. Mells alleges a violation
of his constitutional right to due process. Since he claims a
violation of his constitutional rights, and one of the
possible defendants appears to be a state entity, the Court
assumes that Mr. Mells seeks to assert a cause of action
under 42 U.S.C. § 1983. The relevant portion of Section
1983 states: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any
State . . . subjects . . . any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured . . . .” 42 U.S.C. §
1983. A plaintiff alleges an actionable Section 1983 claim if
his complaint includes facts showing that his constitutional
or federal rights were violated, and that the violation was
committed by a person acting under color of state law.
See Touchston v. McDermott, 234 F.3d 1133, 1137
(11th Cir. 2000). “A person acts under color of state
law when he acts with authority possessed by virtue of his
employment with the state, ” Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001), or when
he “makes clear that he was asserting the authority
granted him and not acting in the role of a private
person.” Williams v. United States, 341 U.S.
97, 100 (1951). Here, Mr. Mells claims that his due process
rights were violated when he was prevented from seeing all
the evidence in his state court case. (Doc. 1, p. 1).
the Fifth and Fourteenth Amendments prohibit the deprivation
of an individual's life, liberty, or property without due
process of law. See U.S. Cons. amends. V, XIV.
Because his complaint does not comply with the Federal Rules
of Civil Procedure, the Court is unable to determine if Mr.
Mells brings his claims under the Fifth or the Fourteenth
Amendment. Therefore, the Court will analyze Mr. Mells's
claims under both amendments.
Fifth Amendment, in relevant part, states: “No person .
. . shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or
property, without due process of law . . . .” U.S.
Const. amend. V. However, the Fifth Amendment protects a
citizen's rights from being violated by the federal
government, not state government officials. See Weiland
v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313,
1328 (11th Cir. 2015) (citation omitted). Here, neither of
the defendants appear to be a federal official or entity.
Therefore, Mr. Mells cannot state a Section 1983 claim for a
Fifth Amendment violation by these defendants.
Fourteenth Amendment provides that no State “shall
deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV. The Fourteenth
Amendment's Due Process Clause provides two types of
constitutional protection: substantive due process and
procedural due process. See Zinermon v. Burch, 494
U.S. 113, 125 (1990). A plaintiff claiming a violation of
procedural due process must show that (1) he had a life,
liberty, or property interest of which he was deprived by
state action, and (2) he did not receive sufficient process
regarding that deprivation. See Ross v. Clayton
Cnty., 173 F.3d 1305, 1307 (11th Cir. 1999). The
substantive due process component of the Fourteenth Amendment
protects individual liberty against “certain government
actions regardless of the fairness of the procedures used to
implement them.” Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992) (citation omitted).
Generally, to prevail on a substantive due process violation
claim, the plaintiff must show that a defendant's conduct
“shocks the conscience.” Nix v. Franklin
Cnty. Sch. Dist., 311 F.3d 1373, 1375 (11th Cir. 2002)
(citation omitted). “Suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment . . . .” Brady v. Maryland, 373
U.S. 83, 87 (1963).
it is unclear whether Mr. Mells is making a procedural or
substantive due process claim. Regardless, Mr. Mells failed
to provide any facts showing how he was denied evidence that
was material to either a showing of guilt or punishment. By
failing to provide, as required by Rule 8(a), short and plain
statements of fact showing he is entitled to relief, Mr.
Mells's claims, as currently pleaded, fail to rise to the
level of a Fourteenth Amendment claim.
Mr. Mells could state claims against these defendants, the
issue of immunity is a difficult bar for Mr. Mells to pass if
he intends to sue the Florida Department of Revenue. Under
the Eleventh Amendment, states are immune from suit in
federal court in most circumstances. See Hans v.
Louisiana, 134 U.S. 1 (1890). This immunity extends to
“arms of the state.” See, e.g., Hess
v. Port. Auth. Trans-Hudson Corp., 513 U.S. 30 (1994).
Determining whether an entity is an “arm of the
state” requires four factors: (1) how state law defines
the entity; (2) what degree of control the state maintains
over the entity; (3) where the entity derives its funds; and
(4) who is responsible for judgments against the entity.
Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir.
2003). Here, if Mr. Mells intends to sue the Department, he
must either show that it is either not an “arm of the
state” or that some other exception applies that allows
him to sue the Department. Otherwise, the Court will have to
dismiss his claim.
the complaint's shortcomings, the Court will allow Mr.
Mells to amend his complaint in an effort to cure the current
deficiencies. Mr. Mells's amended complaint must comply
with the Federal Rules of Civil Procedure. The pleading must
be simple, concise, and direct. Fed.R.Civ.P. 8(d)(1). Unless
Mr. Mells provides short and plain statements of fact
supporting his claims, the Court will have to ...