United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's Application to Proceed
without Prepaying Fees or Costs (Doc. 3). Also pending is
Plaintiff's Motion to Amend his complaint (Doc. 5). For
the reasons that follow, I respectfully recommend the Court
accept the averments in the motion to amend, and combine them
with the existing complaint, to form Plaintiff's amended
complaint. I also recommend that Plaintiff's motion to
proceed as a pauper be DENIED; and that his amended complaint
be DISMISSED without further leave to amend.
courts may allow an individual to proceed in form
pauperis if that person declares in an affidavit that he
“is unable to pay [filing] fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Before a
plaintiff is permitted to proceed in forma pauperis,
the court must 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 an
immune defendant. Id . § 1915(e)(2).
(ii) of § 1915(e)(2)(B) authorizes dismissal of an
indigent's case on the same terms as Federal Rule of
Civil Procedure 12(b)(6) authorizes dismissal of cases in
general-when the complaint “fails to state a claim on
which relief may be granted.” Dismissal pursuant to
§ 1915(e)(2)(B)(ii) is governed by the same familiar
standards that govern dismissal under Rule 12(b)(6).
Thorpe v. Little, 804 F.Supp.2d 174, 180 (D. Del.
1915(e)(2)(B)(ii) and Rule 12(b)(6) test the sufficiency of
the plaintiff's complaint. Because Rule 8(a)(2) requires
a plaintiff to “show” that he is entitled to
relief, a mere “blanket assertion of entitlement to
relief” will not do. Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 556 n. 3 (2007). To survive
dismissal under § 1915(e)(2)(B)(ii) and Rule 12(b)(6), a
plaintiff must plead facts which, “accepted as true,
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). A
claim is “plausible on its face” when its factual
content permits a “reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In evaluating a
plaintiff's complaint under this standard, the court must
accept all well pleaded factual allegations as true and
construe them in the light most favorable to the plaintiff.
Id.; Ironworkers Local Union 68 v. AstraZeneca
Pharmaceuticals, LP, 634 F.3d 1352, 1359 (11th Cir.
2011). Legal conclusions devoid of factual support are not
entitled to an assumption of truth. Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citing
Iqbal, 556 U.S. at 679).
se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam). See also Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). However, pro se litigants must
still conform their pleadings to the Federal Rules of Civil
Procedure, Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007), and the court will not “serve as de
facto counsel for a party or ... rewrite an otherwise
deficient pleading in order to sustain an action.”
GJR Investments, Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),
overruled on other grounds as recognized in
Randall v. Scott, 610 F.3d 701, 706 (11th Cir.
courts have “an independent obligation” in every
case “to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S.
500, 501 (2006) (citing Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999)). 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 (“a civil action
arising under the Constitution, laws, or treaties of the
United States”), in which a private right of action has
been created or is implied by Congressional intent.
See 28 U.S.C. § 1331 and § 1332;
Alexander v. Sandoval, 532 U.S. 275, 293 n.8 (2001).
original complaint (Doc. 1), Plaintiff alleged that he is a
resident of Georgia and is suing “Ms./Mrs. Suki”
and, according to the case style on his application, possibly
an Econolodge Inn & Suites (Doc. 1 at 1, Doc. 3 at 1).
Construed liberally, Plaintiff's complaint alleged that,
while a guest at the Econolodge property, he was smoking.
When this was discovered, Ms. Suki, the general manager of
the property became “irate unprofessional and
embarrassed me in front of other patrons.” (Doc. 1 at
1). Ms. Suki was “rude and had no understanding.”
(Id.) She told Plaintiff the motel was a smoke free
facility and he could pay a one hundred dollar deposit or
leave. Plaintiff alleged that he was unaware of this and
apologized (Id.) Plaintiff and his family left at 10
p.m., but Ms. Suki nonetheless billed Plaintiff's
mother-in-law's credit card and “lied to corporate
office.” (Doc. 1 at 2). Plaintiff reimbursed his
mother-in-law for the charge (Id.). He alleged that
as a result of this incident, he had to go to the emergency
room for pancreatitis, dehydration and acute nausea and
vomiting (Id.). Plaintiff also alleged that the trip
home in the dark and the rain was confusing and unsettling
for his children, and “the pain and suffering of my
children and extended family was insurmountable.”
review, I found for numerous reasons that this complaint
failed to state a cognizable claim for relief within the
jurisdiction of the Court (Doc. 4). Noting that a claim
should not ordinarily be dismissed without at least one
opportunity to amend, I deferred consideration of
Plaintiff's motion to proceed in form a
pauperis, and granted him leave to amend his complaint
to remedy the deficiencies identified (Doc. 4 at 5).
Plaintiff then filed an unsigned paper entitled “Motion
to Amend” (Doc. 5), which I construe to be his amended
complaint. Because leave to amend was already granted, the
motion for leave to amend should be denied as moot because it
seeks relief that has already been given.
merits, Plaintiff adds the following to his complaint:
Ms./Mrs. Suki is now identified as “Suki Kaur.”
Additionally, Econolodge Inn & Suites is added as a
co-defendant. The new allegations read, in their entirety:
While a guest at Econolodge Inn & Suites, Plaintiff and
several other patrons of different ethnic backgrounds were
smoking (to wit-video surveillance). Plaintiff being of
African-American decent was single[d] out by general manager
Ms./Mrs. Suki Kaur, hereinafter Defendant and she became
irate unprofessional and embarrassed Plaintiff, his wife and
his children in front of other patrons and was rude and had
no understanding towards Plaintiff's plea of forgiveness
for the unknown smoking policy.
Plaintiff, his wife and children were forced to leave in
inclimate weather at night. The stress of the situation
caused Plaintiff to seek medical attention.
Plaintiff prays that this Honorable Court will grant him
relief as it sees fair and just for his family and that
punitive damages also be awarded as this ...