United States District Court, M.D. Florida, Jacksonville Division
MOHAMED O. SALEH, MD, BCFM, FAPA, ASAM, ABPN, Plaintiff,
STATE OF FLORIDA, et al., Defendants.
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
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. 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).
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).
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
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
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.
Standard of Review
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.
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
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,