United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE.
case comes before the Court on Plaintiff's third
Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) (Doc. 17). For the following
reasons I respectfully recommend that the application be
denied and that this case be
dismissed without prejudice.
courts may allow an individual to proceed in forma
pauperis if that person declares in an affidavit that
she “is unable to pay [filing] fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). Prior to
determining whether a plaintiff qualifies to proceed in
forma pauperis, the Court, pursuant to 28 U.S.C.
§1915(e)(2), must review the complaint to determine
whether it should be dismissed. Garrett v. Internal Rev.
Servs., 694 Fed.Appx. 761 (11th Cir. 2017)
(“Garrett applied to proceed in forma pauperis, so the
district court was required to review his complaint and to
‘dismiss the case ... if ... the action or appeal ...
[was] frivolous.'”); Abram-Adams v. Citigroup,
Inc., No. 12-CIV-80339-DMM, 2012 WL 12931975, at *1
(S.D. Fla. May 8, 2012) (“District courts must review
civil complaints filed in forma pauperis and shall dismiss
complaints that are frivolous, malicious, or fail to state a
claim”). Section 1915(e) provides that a district court
may dismiss a case filed in forma pauperis if it is
satisfied that the action is frivolous, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against an immune defendant. Id. §
1915(e)(2). If the complaint is deficient, the Court must
dismiss the lawsuit on its own authority. See id.
United States Supreme Court has observed that “a
litigant whose filing fees and court costs are assumed by the
public ... lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.”
Neitzke v. Williams, 490 U.S. 319, 324 (1989). But,
the Supreme Court cautioned that a case should only be
dismissed as frivolous if it relies on meritless legal
theories or facts that are clearly baseless. See id.
at 327. A complaint should not be dismissed for failure to
state a claim “without granting leave to amend at least
once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.”
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2nd
Cir. 1999) (per curiam) (citation and internal quotation
marks omitted); see also Troville v. Venz, 303 F.3d
1256, 1260 & n.5 (11th Cir. 2002) (per curiam).
lawsuit is frivolous if the plaintiff's realistic chances
of ultimate success are slight. Clark v. Ga. Pardons
& Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990).
The trial court must determine whether there is a factual and
legal basis, of constitutional or statutory dimension, for
the asserted wrong. Id. The Court should order a
§ 1915 dismissal only when a claim lacks an arguable
basis in law. Neitzke, 490 U.S. At 325. Claims may
lack an arguable basis in law because of either factual or
legal inadequacies. Id.
theories are frivolous when they are “indisputably
meritless.” Id. at 329. Section 1915
authorizes the dismissal of “claims of infringement of
a legal interest which clearly does not exist.”
Id., at 327. A complaint is also frivolous where it
asserts factual allegations that are “clearly baseless,
” which, in turn, encompass allegations that are
“fanciful, ” “fantastic, ” and
“delusional.” Denton v. Hernandez, 504
U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. at
2014, Defendant Carrington Mortgage Services
(“CMS”) began servicing the mortgage on the home
owned by Plaintiff and her husband (Doc. 16, ¶ 33). In
2015, CMS, represented by Defendant Marinosci Law Group,
P.C., P.A. (“Marinosci”), filed suit to foreclose
the mortgage on Plaintiff's home (Id., ¶
34). In 2016, Plaintiff and her husband counterclaimed
against CMS, Defendant Bank of America, N.A.
(“BANA”), and Marinosci (Id., ¶
35). Plaintiff fails to explain in her amended complaint, the
reason for including BANA in the counterclaim.
represents that she is disabled due to diabetes (mellitus),
Type 2 (adult onset); hypertension; fibromyalgia/chronic
fatigue syndrome; multiple sclerosis (suspect); sciatic
neuropathy; annular fissures with bulges and protrusions in
her cervical spine; carpal tunnel syndrome; migraine
unspecified; PTSD (with PTSD related panic attacks in
response to stimuli associated with a nerve stressor); major
depressive disorder; ADHD; glaucoma (both eyes); Uveitis
Busacca's Nodules, in both eyes; and bilateral ocular
hypertension (Id., ¶ 22). She says that she
“suffers from well-documented cognitive disabilities
which often renders her unable to function in stressful
situations.” (Id., ¶ 24). Plaintiff
claims that these disabilities impair her ability to
communicate, understand, and, at times, listen (Id.,
¶ 30). She also reports experiencing panic attacks and
other unspecified medical issues (Id.).
state foreclosure case Plaintiff and her husband informed
opposing counsel that Plaintiff would be receiving assistance
from an Americans with Disabilities Act (“ADA”)
advocate (Id., ¶ 38). The advocate's role
would be to assist Plaintiff in all proceedings and meetings
and to interact with opposing counsel (Id.). ADA
Judicial Access appointed Dr. Rebecca Sharp to advocate for
Plaintiff (Id., ¶ 39).
of 2016, Plaintiff submitted an ADA Title II Accommodation
Request to the state court (Id., ¶ 38). Of the
multiple requests made by Plaintiff: “The most
important and necessary accommodation requested by the
Plaintiff was the assistance of an ADA Advocate at all times
due to her disabilities and to protect her civil
rights.” (Id.). The presiding state judge
approved the requested accommodations (Id.).
hearing was scheduled on Plaintiff's Motion for Proof of
Authority to Represent (Id., ¶ 39). Plaintiff
attended the hearing with her husband and Sharp
(Id.). She experienced a panic attack during the
hearing and asked Sharp to read her argument into the record
(Id.). The state court judge was cooperative with
Sharp's participation in the proceedings (Id.).
alleges that after the hearing she, her husband, and Sharp
were “ambushed outside the courtroom” by
Defendants Scott Stengel, Sahily Serradet and Michael P.
Gelety (Id., ¶ 40). Stengel is an attorney
affiliated with Defendant Akerman LLP (Id., ¶
15). Serradet is an attorney affiliated with Defendant
Liebler, Gonzalez & Portuondo (Id., ¶ 17).
Gelety is an attorney affiliated with Marinosci
(Id., ¶ 18). ...