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 in
District Court Without Prepaying Fees or Costs which I have
construed as a motion for leave to proceed in forma
pauperis (Doc. 2). Upon due consideration, I
respectfully recommend that the district
judge deny the motion and dismiss
Plaintiff's complaint without leave to amend.
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), should review the complaint to determine
whether it should be dismissed. Section 1915(e) provides that
the 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 is required to 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).
Still, 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).
state a claim, a plaintiff must provide a short and plain
statement of the basis of the Court's jurisdiction, the
plaintiff's entitlement to relief, and a demand for
relief. Fed.R.Civ.P. 8(a). The plaintiff must allege the
claim in a legible manner with numbered paragraphs,
incorporating by reference other parts of the pleading for
clarity. Fed.R.Civ.P. 10. Relevant facts should be segregated
to each of their respective claims. See Beckwith v.
Bellsouth Telecoms, Inc., 146 Fed.Appx. 368, 372 (11th
Cir. 2005). Although district courts apply a “less
stringent standard” to the pleadings submitted by a
pro se plaintiff, even pro se litigants
must allege the essential elements of their claims for
relief. See Eidson v. Arenas, 910 F.Supp. 609, 612
(M.D. Fla. 1995) (citations omitted).
alleges that she is the administrator of her deceased father,
William Christopher's estate, and that Defendant, the
Employees' Retirement System of the Government of the
Virgin Islands, is illegally refusing to pay her father's
retirement annuity (Doc. 1). Defendant was created as
“a retirement and benefit system for officials and
employees of the Government of the United States Virgin
Islands and for their dependents and beneficiaries
….” VI ST T. 3 § 701. By statute:
Death after retirement
(c) Upon death of a retired member, unless an optional
benefit has been elected as provided in section 707 of this
title, a lump-sum payment equal to the excess of the annual
salary of the member at the date of retirement as defined in
section 702(a) of this title, plus the member's total
contributions, over the amounts received by the member in
annuity payments up to the time of his death, and if the
member is enrolled in the Government's Health Insurance
Program the Life Insurance Benefits of $5, 000, shall be paid
to the designated beneficiary of the member.
VI ST T. 3 § 712(c). Plaintiff claims that she is
entitled “to receive my father's retirement annuity
in a Lump-Sum for his 35() years of contributed service
contributions to GERS.” (Doc. 1, § III. C.). But
Plaintiff has failed to state a cause of action because she
has failed to allege any facts to show why there is any money
due following her father's death. To the contrary,
Plaintiff's complaint includes a letter from Defendant
explaining that her father retired in 1995 and that his
retirement annuity checks ceased when he died in 2007 (Doc.
1-2 at 12). The letter also informed Plaintiff that her
father's retirement account is closed and there are no
assets/accounts due to the Estate (Id.). After
reading Plaintiff's complaint, I entered an Order giving
her 21 days within to amend but she has chosen not to amend
her pleading (Doc. 3).
is ordinarily proper “in any district where the
defendant resides or where a substantial part of the actions
or omissions that form the basis of the action
occurred.” Wildstein v. Cheyenne Holdings,
Inc., No. 6:16-cv-336-Orl-41TBS, 2016 WL 7366892, at *3
(M.D. Fla. Aug. 9, 2016). The district court has a
responsibility, whether on the parties' motion or on its
own motion, to “dismiss an action or transfer it to
‘any district or division in which it could have been
brought.'” Id. (quoting Chapin Revenue
Cycle Mgmt., LLC v. JDA eHealth Sys., Inc., No.
8:11-cv-858-T-33AEP, 2012 WL 469824, at *2 (M.D. Fla. Feb.
13, 2012)); F.T.C. v. Direct Benefits Grp., LLC, No.
6:11-cv-11-86-Orl-28TBS, 2012 WL 3715191, at *4 (M.D. Fla.
Aug. 7, 2012). Plaintiff has not alleged that Defendant has
any presence in or contact with the Middle District of
Florida. The only discernible nexus between Plaintiff's
claim and this Court is that Plaintiff lives in Orlando,
Florida (Doc. 1, at 6). This is insufficient to establish
proper venue. I find no basis to hale a Virgin Islands
government entity, in a dispute over benefits provided by the
government of the Virgin Islands, into the courts of the
Middle District of Florida. “The district court of a
district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the
interest of justice, transfer such case to any district or
division in which it could have been brought.” 28
U.S.C. § 1406(a). Plaintiff has not stated a cause of
action, she has not paid the filing fee, and when given an
opportunity, chose not to amend her complaint. Now, I
recommend this case be dismissed.
due consideration, I RESPECTFULLY RECOMMEND
that the Court
DENY Plaintiff's motion to proceed
in forma pauperis (Doc. 2);
DISMISS this case without prejudice; and
DIRECT the Clerk of Court to
TERMINATE any pending ...