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Erickson v. Campbell

United States District Court, N.D. Florida, Tallahassee Division

May 6, 2019

ERIC LEE ERICKSON, #127087, Plaintiff,
v.
JACK CAMPBELL, et al., Defendants.

          SECOND REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         Previously, an Order was entered in this case by Senior United States District Judge William Stafford, ECF No. 9, which adopted the Report and Recommendation, ECF No. 8, entered in February 2019.[1]Judge Stafford's Order, ECF No. 9, required Plaintiff to pay the $400.00 filing fee by April 16, 2019. Plaintiff has not done so.

         Instead, Plaintiff has filed a motion on March 28, 2019, which was not intelligible, ECF No. 10, and was denied. ECF No. 11. Plaintiff was reminded once again that he must pay the filing fee to proceed with this case. Id. Plaintiff was warned that if he did not pay the fee, a recommendation would be made to dismiss this case. Id. Additionally, Plaintiff was reminded that his initial complaint, ECF No. 1, had already been reviewed and was found deficient. Thus, Plaintiff was required to submit a second amended complaint which presented facts showing what each named Defendant did, or failed to do, that Plaintiff believes caused him harm and was unconstitutional. ECF No. 11.

         On April 22, 2019, Plaintiff filed a second amended complaint, ECF No. 12, and another in forma pauperis motion, ECF No. 13. Plaintiff's in forma pauperis motion is again insufficient as Plaintiff does not demonstrate why he cannot pay the filing fee which he was ordered to pay. See ECF Nos. 9. 10. Notwithstanding, judicial notice is taken of other cases which Plaintiff initiated in this Court.

         Plaintiff has also filed case numbers: 4:19cv57-WS-CAS, 4:19cv58-MW-CAS, and 4:19cv115-MW-CAS. In case number 4:19cv115, a Report and Recommendation was entered recommending that Plaintiff's in forma pauperis motion be denied because it appeared that he had sufficient funds available to pay the filing fee. However, Plaintiff subsequently demonstrated that he lacked access to his personal bank account and could not pay the filing fee. An Order was entered in that case (which granted Plaintiff in forma pauperis status and vacated the Report and Recommendation) advising Plaintiff that similar action would not be taken in any of Plaintiff's other cases absent the filing of a specific motion in those cases requesting such relief.[2]

         It now appears that Plaintiff's instant in forma pauperis motion, ECF No. 13, is likely intended to serve that purpose. The motion does not clearly do so, but in light of Plaintiff's other known case, Plaintiff's motion here, ECF No. 13, should be granted and Plaintiff permitted to proceed without payment of the filing fee.

         Having granted Plaintiff in forma pauperis status, Plaintiff's second amended complaint may now be reviewed. 28 U.S.C. § 1915. Plaintiff's second amended complaint, however, is insufficient because it is identical to the complaint, ECF No. 1, initially filed. Plaintiff does not include a statement of his claim nor does he identify any constitutional right which was allegedly violated. ECF No. 12 at 6. Plaintiff also does not request any relief from this Court. Id. However, based on the lack of factual allegations which are insufficient to state a claim, no relief could be granted even if Plaintiff had requested relief. In short, Plaintiff's complaint does not show that any named Defendant caused him harm. Plaintiff does not present facts which show what any Defendant did to Plaintiff. The factual allegations are nonsensical and do not reveal that Plaintiff's constitutional rights have been violated. Accordingly, it is recommended that this action be dismissed as frivolous.

         Recommendation

          It is respectfully RECOMMENDED that the Order which denied Plaintiff in forma pauperis status, ECF No. 9, be VACATED and Plaintiff's recent in forma pauperis motion, ECF No. 13, be GRANTED such that Plaintiff can proceed with in forma pauperis status. It is further recommended that Plaintiff's second amended complaint, ECF No. 12, be DISMISSED as frivolous, and that all other pending motions be DENIED. Finally, the Clerk of Court should be required to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

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Notes:

[1] The Report and Recommendation noted that Plaintiff's in forma pauperis motion, ECF No. 7, indicated Plaintiff had over four thousand dollars in his bank account and, thus, appeared to have access to sufficient funds with which to pay the filing fee for this case. ECF No. 8.

[2] Part of the reason for doing so is that review of Plaintiff's complaints revealed they were all insufficient as filed, and because Plaintiff was directed to consider whether or not he could bring all of his claims in one case which would mean ...


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