United States District Court, M.D. Florida, Tampa Division
LIVIA M. SCOTTO, Plaintiff,
JESSICA MARIE MCCLEAN, VOLKS ANWALT, CRAIG MARTIN, and LAUREN NESMITH, Defendants.
REPORT AND RECOMMENDATION
MARKA.P1ZZO UNITED STATES MAGISTRATE JUDGE.
the Court is pro se Plaintiff's application to
proceed in district court without prepaying fees or costs
(doc. 2) pursuant to 28 U.S.C. § 1915. The pro
se Plaintiff has filed a purported negligence complaint
against multiple Defendants asserting that this Court has
diversity jurisdiction under 28 U.S.C. §1332 (doc.
The complaint consists of disjointed and meaningless
allegations against the four Defendants, one of which is a
citizen, like Plaintiff, of Florida.
28 U.S.C. § 1915(e)(2), the Court shall,
“notwithstanding any filing fee, or any portion
thereof, that may have been paid, ” dismiss a dismiss a
case that is frivolous or fails to state a claim. I find
Plaintiff's case is subject to dismissal under the in
forma pauperis statute. Further, I find that the
complaint fails to establish a jurisdictional basis upon
which this Court can hear Plaintiff's case. As discussed
below, I recommend the District Judge deny Plaintiff's
application to proceed in district court without prepaying
fees or costs (doc. 2) and dismiss Plaintiff's complaint
1915 represents a balance between facilitating an indigent
person's access to the courts and curbing the potentially
vast number of suits by such persons, who, unlike those who
must pay to litigate their claims, have no economic
disincentive to filing frivolous or malicious suits once the
in forma pauperis status is granted. A district
court may conclude a case has little or no chance of success
and dismiss the complaint when it determines from the face of
the complaint that the factual allegations are “clearly
baseless” or the legal theories are “indisputably
meritless.” Carroll v. Gross, 984 F.2d 392,
393 (11th Cir. 1993)(citing Neitzke v. Williams, 490
U.S. 319, 327 (1989)); 28 U.S.C. § 1915(e)(2)(B). A
complaint is “frivolous if it lacks an arguable basis
in law or in fact.” Neitzke, 490 U.S. at 325.
Moreover, “federal courts are without power to
entertain claims otherwise within their jurisdiction if they
are ‘so attenuated and unsubstantial as to be
absolutely devoid of merit.'” Hagans v.
Levine, 415 U.S. 528, 536-37 (1974)(citation omitted).
Plaintiff's complaint fits this mold. While it appears
that Plaintiff is financially eligible to proceed in
forma pauperis in this case and this Court is mindful
that a pro se plaintiff's pleading must be
construed liberally by the Court, Plaintiff's complaint
fails to state a claim. In fact, the complaint is wholly
insubstantial and utterly devoid of merit, and because it is
frivolous and amendment would be futile, I recommend that
Plaintiffs complaint be dismissed.
Plaintiffs complaint lacks allegations demonstrating that the
Court has subject matter jurisdiction over Plaintiffs
purported claims. Title 28 U.S.C. § 1332 grants federal
district courts jurisdiction over “all civil actions
where the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interest and costs, and is between . .
. citizens of different States.” 28 U.S.C. §
1332(a)(1). A district court may exercise diversity
jurisdiction only if there is complete diversity between the
parties, that is, no two adverse parties are citizens of the
same state. Ranbaxy Labs. Inc. v. First Databank,
Inc., 826 F.3d 1334, 1338 (11th Cir. 2016)(citing
Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373 (1978)). Because Plaintiff and one of the Defendants
are both citizens of Florida, diversity is lacking, and this
Court does not have subject matter jurisdiction over this
Plaintiffs application to proceed in district court without
prepaying fees or costs (doc. 2) be DENIED;
and 2. Plaintiffs complaint (doc. 1) be
has fourteen days from this date to file written objections
to the Report and Recommendation's factual findings and
legal conclusions. A party's failure to file written
objections waives that party's right to challenge on
appeal any unobjected-to factual finding or legal conclusion
the district judge adopts from the Report and Recommendation.
See 11th Cir. R. 3-1.
 The District Judge has referred this
matter to ...