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Saleh v. State

United States District Court, M.D. Florida, Jacksonville Division

January 5, 2018

MOHAMED O. SALEH, MD, BCFM, FAPA, ASAM, ABPN, Plaintiff,
v.
STATE OF FLORIDA, et al., Defendants.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on the Plaintiff's Complaint (Doc. 1: Complaint), and on Plaintiff's Verified Petition for Temporary Injunction (Doc. 2: TRO Motion), both of which were filed on December 29, 2017. Plaintiff, who is proceeding pro se, names 33 Defendants, including the State of Florida, state agencies, a state Circuit Court judge, the Duval County Tax Collector, the State of Nevada, a former Congresswoman, and various individuals.[1] Plaintiff has also filed a Petition for Appointment of Pro Bono Counsel (Doc. 3), and an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form), which the Court construes as a Motion to Proceed In Forma Pauperis. (Doc. 4; IFP Motion).

         Plaintiff's' 11-page two-count Complaint includes numerous conclusory allegations and irrelevant facts. He includes allegations of a "conspiracy" and "cabal, " and resultant "Medicaid Fraud, " allegedly perpetrated by various individuals he has named as defendants, in connection with three behavioral health agencies he, as a doctor, helped to establish and serve. (See Doc. 1 at 3-5; Complaint ¶¶ 17-40, 42-45, 48-52). Plaintiff attaches 28 exhibits to the Complaint. Despite extensive allegations of conspiracy and misdeeds, Plaintiff's Complaint rests on two claims: one involving his dissolution of marriage proceeding currently pending in state court (Count One), and the other related to the loss of his medical license (Count Two).

         In Count One, entitled "Conspiracy to Facilitate a Murder, " Plaintiff seeks an injunction cancelling an upcoming contempt hearing in his dissolution proceeding, set for January 8, 2018, in state court. Plaintiff alleges that

10. It is literally a matter of 'life or death' that the attached Emergency Petition for an Injunction is granted.
11. The Hearing scheduled on 1/8/2018 in Circuit Court, must not take place

(Doc. 1 at 3; Complaint ¶¶ 10, 11). Plaintiff presents allegations regarding the chronology of his dissolution of marriage proceedings, and his concerns with the now-presiding Judge Gregg McCaulie. (See Doc. 1 at 6-8; Complaint ¶¶ 59-95). Plaintiff alleges that Judge McCaulie, the Judicial Qualifications Commission, and his former wife's attorney are "co-conspirators, " and that his former wife's attorney "has filed for an illegitimate Motion to bring the [Plaintiff] to the Fourth Circuit Courthouse, on 1/8/2018 where the plaintiff is certain an illegitimate order to incarcerate him will be issued." Id. at 7; Complaint ¶¶ 79-83.

         In Count Two, entitled "Deprivation of Rights Under Color of Law and Tortious Interference, " the Plaintiff incorporates and re-alleges all of his jurisdictional and general factual allegations as well as all five allegations from Count One. See Doc. 1 at 5, 8; Complaint ¶¶ 47, 98. He also "alleges that employees of the Agency for Health care administration [sic] in collusion with the ex Congresswoman Corinne Brown conspired to prevent the renewal of the Plaintiff's Florida Medical License." (Doc. 1 at 8; Complaint ¶ 100). Although almost entirely indecipherable, it appears that Plaintiff alleges that his Medical License problems were related at least in part, to charges that arose in Nevada. Id. at 8-11; Complaint ¶¶101-142. As relief, Plaintiff requests "monetary damage commensurate with the income that he has lost in five years, " as well as a Court order requiring "the Department of health [sic] to vacate the unlawful 'termination from Medicaid' order issued on 9/12/2012 and based on illegal, fabricated and conspiratorial charges of 'conspiracy with his own patients[']" and the impeachment of “attorney Susan Pniewsky.” Id. at 11; Complaint ¶¶ 145-147.

         In Plaintiff's TRO Motion which is verified, Plaintiff focuses on the upcoming contempt hearing in the ongoing marraige dissolution case. (See Doc. 2). Plaintiff asserts that he has been a practicing physician in Duval County, Florida for 30 years; that he has a "current, active and unrestricted Nevada State Medical License, " and that "[h]is Unblemished Florida Medical License was not renewed in 2013 due to a series of convoluted torts . . . ." Id. at 2; TRO Motion ¶¶ 5-7). Plaintiff asserts that he has "personal knowledge" that his ex-wife's attorney "plans to have [Plaintiff] incarcerated, " and that the "threatened act complained of is a Hearing" that will be held in state court on January 8, 2018, before state Circuit Judge McCaulie in conjunction with Plaintiff's dissolution of marriage. Id.; TRO Motion ¶¶ 10, 19, 21. Plaintiff requests an order: 1) cancelling the January 8, 2018 state court hearing and enjoining his ex-wife's attorney from scheduling any further state court hearings in the dissolution proceeding until this case is heard; referring the dissolution case "to a new venue or the Alternate Dispute Resolution Program"; and removing his ex-wife's attorney from the dissolution proceedings. Id. at 4; TRO Motion ¶¶ 37, 37, 39.[2]

         I. Standard of Review

         Because Plaintiff seeks to proceed in forma pauperis, the Court reviews Plaintiff's Complaint in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), a complaint may be dismissed as “frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is frivolous as a matter of law where, inter alia, there is an affirmative defense which would defeat the claim, such as the statute of limitations, res judicata, collateral estoppel, or absolute immunity. Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 & n.2 (11th Cir.1990). Judges are accorded “not only the authority to dismiss [as frivolous] a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Dismissal can occur “at any time” if the Court determines that the action fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Rule 12(b)(6), Federal Rules of Civil Procedure (Rule(s)). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

         Under Rule 12(b)(6), dismissal is proper if a complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While “detailed factual allegations” are not required, mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are not enough. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). In considering the sufficiency of a pleading pursuant to Rule 12(b)(6), the allegations in the Complaint must be accepted as true and construed in the light most favorable to the plaintiff. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Though pro se pleadings are held to a less strict standard than those drafted by lawyers and “thus are construed liberally, ” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.2008), the Court does not have “license to serve as de facto counsel for a party” or to “rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998), overruled on other grounds as recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).

         This Court has adopted a procedure where review of a pro se litigant's in forma pauperis application involves a simultaneous two-step inquiry at the outset, involving an evaluation of an applicant's financial status pursuant to 28 U.S.C. § 1915(a)(1) and a review of the applicant's complaint under 28 U.S.C. § 1915(e)(2)(B). If the pro se plaintiff fails on either requirement, then the application to proceed in forma pauperis is due to be denied. In MacLeod v. Scott, No. 3:14-cv-794-J-39MCR (M.D. Fla. Feb. 24, 2015) (Docket Entry 25), the Court stated:

Since Plaintiff has filed an application to proceed in forma pauperis, the Court is obligated to review the case and to dismiss if it determines that the action is “(i) 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)(i)-(iii). The Court also has an obligation to inquire into its subject matter jurisdiction sua sponte. See Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279-1280 (11th Cir. 2001); Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.”).

Id. at 1 (denying Plaintiff's Motion to Proceed In Forma Pauperis, and dismissing Plaintiff's amended complaint without prejudice for lack of subject matter jurisdiction). Under this dual approach, § 1915(e)(2) provides, in essence, a screening process, to be applied sua sponte and at any time during the proceedings. See Cintron v. Upright, No. 2:07-cv-7-FtM-99DNF, 2007 WL 168523, at *1 (M.D. Fla. Jan. 18, 2007) (citing 28 U.S.C. § 1915(e)(2)) (unpublished opinion). See generally Micklas v. Phillips, 522 Fed.Appx. 616, 618 (11th Cir. 2013) (“Section 1915 does not state that a court must grant in forma pauperis status prior to dismissing a case for frivolousness or failure to state a claim. . . . In fact, it provides that if a court determines that the action is frivolous, malicious, fails to state a claim or seeks monetary damages from an immune defendant, the court shall dismiss the case ‘at any time.'” (quoting 28 U.S.C. § 1915(e)(2)) (unpublished opinion); Abram-Adams v. Citigroup, ...


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