Rolle v. Robinson

          REPORT AND RECOMMENDATION ^[1]

          PHILIP R. LAMMENS United States Magistrate Judge

         Mr. Rolle has been a frequent litigator in this District and the Northern District of Florida, filing repeated civil rights actions pursuant to § 1983 against judges, prosecutors, appointed and privately retained attorneys, probation officers, and the City of Tallahassee, related to his 2002 state court conviction and subsequent probation violation proceedings. His claims have been repeatedly dismissed as frivolous. See e.g., Rolle v. Glenn, No. 4:17-cv-134-MW-CAS, (N.D. Fla. March 31, 2017), aff'd, 2017 WL 4708166 (11^th Cir. 2017); Rolle v. Glenn, No. 5:15-cv-190-Oc-39PRL (M.D. Fla. January 27, 2017), Rolle v. Raysor, No. 5:15-cv-180-Oc-30PRL (M.D. Fla. Apr. 14, 2015); Rolle v. Maceluch, No. 5:15-cv-191-Oc-30PRL (M.D. Fla. Apr. 21, 2015); Rolle v. U.S. Marshals Serv., No. 5:15-cv-192-Oc22PRL (M.D. Fla. July 20, 2015); Rolle v. Edwards, No. 5:15-cv-202-Oc-30PRL (M.D. Fla. Apr. 24, 2015); Rolle v. Raysor, No. 5:15-cv-268-Oc-30PRL (M.D. Fla. June 3, 2015); Rolle v. Edwards, No. 5:15-cv-271- Oc-34PRL (M.D. Fla. July 22, 2015); Rolle v. Maceluch et al, No. 5:15-cv-285-MMH-PRL (October 8, 2015), Rolle v. Bruce, No. 5:15-cv-320-Oc-22PRL (M.D. Fla. July 24, 2015), Rolle v. City of Tallahassee, et al., No. 5:15-cv-462-JSM-PRL (September 14, 2015); Rolle v. Dilmore, et al, No. 4:14-cv-339-RH-CAS (N.D. Fla. July 23, 2014).

         Mr. Rolle has been repeatedly cautioned that sanctions would be imposed against him for filing frivolous complaints, and sanctions have been imposed on at least two occasions. In October 2015, he was sanctioned $200.00 in the Middle District of Florida, see Rolle v. City of Tallahassee, et al., No. 5:15-cv-462-JSM-PRL (M.D. Fla. October 8, 2015) (Moody, J.), and in May 2017, he was prospectively banned from filing new cases related to his January 4, 2002 arrest unless he paid the entire filing fee in the Northern District of Florida, See Rolle v. Dilmore, et al., No. 4:16-cv-425-RH-GRJ (N.D. Fla. May 23, 2017) (Hinkle, J.).

         Undeterred, during the first few weeks of January 2018, Plaintiff filed six new cases in this Court, arising largely out of the same events addressed in previous lawsuits. See Rolle v. West et al., No. 5:18-cv-8-JSM-PRL, Rolle v. Robinson et al., No. 5:18-cv-13-JSM-PRL, Rolle v. Shelfer et al., No. 5:18-cv-18-JSM-PRL, Rolle v. City of Tallahassee et al., No. 5:18-cv-25-JSM-PRL, Rolle v. City of Tallahassee et al., No. 5:18-cv-45-JSM-PRL, Rolle v. Perry, et al., No. 5:18-cv-46-JSM-PRL. Plaintiff has also filed motions to proceed in forma pauperis.

         I. Legal Standards

         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.” 28 U.S.C. § 1915(e)(2). If the complaint is deficient, the Court is required to dismiss the suit sua sponte. Id.

         “A 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. 1979)).

         In 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). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The court must view the allegations of the complaint in the light most favorable to the plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). In considering the sufficiency of the complaint, the court limits its “consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” Id.

         II. Discussion

         A. Plaintiff's claims

         Although the allegations begin (as they do with all of his cases) with Plaintiff's 2002 conviction, the complaint in this case focuses on events following his release from jail in July 2016. Plaintiff alleges that upon his release, he was told to report to a probation office in Tallahassee, but that he did not go there “due to his continued unfair and unconstitutional treatment by numerous state officials and no adequate remedies available.” He alleges that he was never told to report to the Ocala Probation Office, but that probation officers Robinson and Taylor filed a violation of probation report stating that he: (1) failed to report to the Ocala Probation Office; (2) absconded and changed his Ocala address without approval; and (3) failed to comply with electronic monitoring in Ocala. Plaintiff alleges that Robinson and Taylor knew or should have known that no violation report should have been filed and that they acted “maliciously and in great disregard[ ]” for his rights. Plaintiff alleges Robinson and Taylor violated his fourth amendment rights by filing false violations that resulted in his subsequent arrest without probable cause.

         Plaintiff alleges that state court Judge Martin Fitzpatrick acted without jurisdiction and violated his fourteenth amendment right to due process by issuing an arrest warrant without probable cause. He alleges that his counsel, Stacey Sharpe, and later, Thomas Gano violated his sixth amendment right to counsel by failing to file certain motions and by entering into agreements with the prosecutor. Plaintiff alleges that assistant state attorney, Georgia Chappleman and Judge Fitzpatrick violated his fourteenth amendment right to due process by holding Plaintiff in Leon County to answer for violations alleged in Marion County. Plaintiff was ultimately convicted and sentenced to 21 months. Plaintiff alleges that the City of Tallahassee violated his fourteenth amendment right to due process based on the conduct of Judge Fitzpatrick and assistant state attorney Chappleman.

         While Plaintiff's claims arise from more recent events not addressed by prior lawsuits, his claims against these Defendants are deficient for the same reasons explained in previous cases. To sufficiently plead a § 1983 violation, a plaintiff must establish that: (1) the conduct complained of was conducted by someone acting under the color of state law, and (2) the conduct deprived him of legally recognized or Constitutional rights, privileges, or immunities. Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir.1984) (quoting Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).

         As the Court has repeatedly explained, some parties are immune from § 1983 claims based on their official role. See Wahl v. McIver,773 F.2d 1169, 1172-73 (11th Cir.1985) (per curiam) (discussing various types of immunity for those involved in the public litigation process). Specifically, Plaintiff's claims against Judge Martin Fitzpatrick are barred by judicial immunity. See e.g., Rolle v. Glenn, 4:17-cv-134-MW-CAS (N.D. Fla. March 31, 2017); see also, Wahl, 773 F.2d at 1172 (“judges are absolutely immune from civil liability ‘for their judicial acts, even when such acts rare in excess of their jurisdiction and are alleged to have been done maliciously or corruptly.'”). Likewise, his claim against ...