United States District Court, S.D. Florida
PRELIMINARY REPORT OF MAGISTRATE JUDGE RE SCREENING
INITIAL COMPLAINT (DE#1)
Petitioner has filed this civil rights complaint (DE#
1), pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971),
arising from his criminal prosecution in this court, No.
94-CR-00506-Hurley and his original 28 U.S.C. §2255
proceedings, No. 00-CV-02145-Hurley.
case has been referred to the undersigned for the issuance of
all preliminary orders and any recommendations to the
district court regarding dispositive motions. See 28
U.S.C. §636(b)(1)(B), (C); Fed.R.Civ.P. 72(b),
S.D.Fla. Local Rule 1(f) governing Magistrate Judges, and
S.D. Fla. Admin. Order 2003-19.
has been previously granted leave to proceed in forma
pauperis ("IFP”) pursuant to the provisions
of 28 U.S.C. §1915, and a $350.00 debt has been
established for the court's filing fee. (DE# 6). Thus,
Plaintiff is now proceeding IFP and is subject to
§1915(e)(2) screening requirements. Because plaintiff is
a prisoner seeking redress from governmental entities,
employees, or officers, his complaint is subject to screening
under 28 U.S.C. §1915A, which does not distinguish
between IFP plaintiffs and non-IFP plaintiffs. See
28 U.S.C. §1915A; Thompson v. Hicks, 213
Fed.Appx. 939, 942 (11th Cir. 2007)(per
only where a Plaintiff is not proceeding IFP, that his
pleadings are not subject to the screening provision of 28
U.S.C. §1915(e)(2). See Farese v. Scherer, 342
F.3d 1223, 1228 (11th Cir. 2003)
(“Logically, §1915(e) only applies to cases in
which the plaintiff is proceeding IFP”); see
also, Thompson v. Hicks, 213 Fed.Appx. 939, 942
(11th Cir. 2007)(citations omitted). Regardless,
whether the plaintiff is proceeding IFP or not, since
Plaintiff is a prisoner seeking redress against governmental
entities, employees, or officers, his pleadings are subject
to screening under 28 U.S.C §1915A, which does not
distinguish between IFP plaintiffs and non-IFP plaintiffs.
See 28 U.S.C. §1915A; Thompson v.
Hicks, 213 Fed.Appx. 939, 942 (11th Cir.
noted that pleadings drafted by pro se litigants
must be liberally construed, Haines v. Kerner, 404
U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)(per
curiam), but the Court may review plaintiff's
complaint and dismiss the complaint, or any part thereof, if
it is frivolous, malicious, or fails to state a claim upon
which relief can be granted. See 28 U.S.C.
Cause is presently before the Court for screening of the
Plaintiff's Complaint (DE#1), pursuant
to 28 U.S.C. §1915(e) and 28 U.S.C. §1915A.
Standard of Review
Prison Litigation Reform Act (?PLRA”) requires that the
court review ?as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officers or employee of a
governmental entity.” 28 U.S.C. §1915A(a). On
review, the district court is required to ?identify
cognizable claim or dismiss the complaint, or any portion of
the complaint, ” if it ?is frivolous, malicious, or
fails to state a claim upon which relief can be granted; or,
seeks monetary relief against a defendant who is immune from
such relief. See 28 U.S.C. §1915(A)(b)(1),
essence, §1915(A) is a screening process to be applied
sua sponte and at any time during the proceedings.
In reviewing the complaint, the court views all allegations
as true. Brown v. Johnson, 387 F.3d 1344, 1347
(11th Cir. 2004). Complaints that lack any
arguable basis in law or fact, nonetheless, may be dismissed.
Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989); Bilal v. Driver, 251
F.3d 1346, 1349 (11 Cir.), cert. denied, 534 U.S.
1044 (2001). Dismissals on this ground should only be ordered
when the legal theories are “indisputably
meritless," Neitzke, 490 U.S. at 327; when the
claims rely on factual allegations that are “clearly
baseless, ” Denton v. Hernandez, 504 U.S. 25,
31 (1992); or, when it appears that the plaintiff has little
or no chance of success. Bilal, 251 F.3d at 1349.
for failure to state a claim are governed by the same
standard as Fed.R.Civ.P. 12(b)(6). Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997)(“The language of section 1915(e)(2)(B)(ii) tracks
the language of Fed.R.Civ.P. 12(b)(6)”). Thus,
a court may dismiss a complaint if the facts as pleaded do
not state a claim for relief that is plausible on its face.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
560-61, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929
(2007)(abrogating Conley v. Gibson, 355 U.S. 41, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)). Additionally, the court may
dismiss a case when the allegations in the complaint on their
face demonstrate that an affirmative defense bars recovery of
the claim. Marsh v. Butler County, Ala., 268 F.3d
1014, 1022 (11th Cir.2001).
order to state a §1985 or §1983 claim, a plaintiff
must demonstrate that (1) the defendant(s) deprived plaintiff
of a right secured under the Constitution or federal law, and
(2) that such a deprivation occurred under color of state
law. See Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011)(quoting Arrington v. Cobb
County, 139 F.3d 865, 872 (11th Cir. 1998).
se complaints are held to "less stringent standards
than formal pleadings drafted by lawyers and can only be
dismissed for failure to state a claim if it appears
'beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.'" Estelle v. Gamble, 429 U.S. 97,
106 (1979)(quoting Haines v. Kerner, 404 U.S. 519,
520-21 (1972)). The allegations of the complaint are taken as
true and are ...