United States District Court, M.D. Florida, Orlando Division
LAWRENCE T. JONES, Plaintiff,
COORS BREWING COMPANY, Defendant.
REPORT AND RECOMMENDATIONS
B. Smith United States Magistrate Judge.
before the Court is pro se Plaintiff Lawrence T. Jones'
Request for Leave to Appeal In Forma Pauperis (Doc. 30). This
is the same request Plaintiff made by motion on May 31, 2019
(Doc. 27) and upon which I have already submitted a report
and recommendation (Doc. 29). Because I am unaware of any
material change since my original report and recommendation,
I simply repeat it here. After due consideration, I
respectfully recommend that Plaintiff's request,
construed as a motion, be denied.
filed this lawsuit without the assistance of a lawyer,
alleging that after consuming Defendant's product he
became nauseous, blacked out, and later found himself in
jail, with a stab wound to his hand (Doc. 1-2). Plaintiff
complained that Defendant was liable for failing to warn him
and others of the dangers of consuming Defendant's
product (Id.). When Plaintiff filed this case, he
was (and apparently still is), incarcerated in the Brevard
County, Florida jail on a charge of attempted murder (Docs.
1, 15, 27). After reviewing Plaintiff's financial
affidavit and jail account records I believe he is unable to
pay the costs of an appeal.
filed a motion to dismiss in which it argued that
Plaintiff's complaint failed to state a claim because:
(1) under Florida law there is no duty to warn about the
effects of consuming alcohol; (2) under Florida law the
proximate cause of injuries resulting from intoxication is
the intentional consumption and not the manufacture of
alcohol; and (3) Plaintiff's failure to warn claim was
preempted by the Alcoholic Beverage Labeling Act (Doc. 5 at
4). Plaintiff filed a response in which he said he was
alleging that he became sick after drinking Defendant's
product and that he held Defendant liable for his illness,
black out, and injuries (Doc. 13 at 1).
Court granted the motion to dismiss with prejudice (Doc. 22).
The Court found that “[a] manufacturer's duty to
warn arises when there is a need to inform consumers of
dangers of which they are unaware, ” and that
“'[b]ecause the dangers associated with alcohol
consumption are very well known, courts have usually found
that alcohol manufacturers and retailers do not have a duty
to warn consumers about the risks posed by the excessive use,
or prolonged use of alcohol.'” Cook v.
MillerCoors, LLC, 872 F.Supp.2d 1346, 1351 (M.D. Fla.
2012) (quoting Robinson v. Anheuser Busch, Inc.,
CIV.A. 00-D-300-N, 2000 WL 35432556, at *2 (M.D. Ala. Aug. 1,
2000) (collecting cases)) (Doc. Id., at 2). The
Court also noted that “the degree of intoxication to be
expected from any particular brand of beer does not require a
duty to warn, or give rise to a fact question.”
Malek v. Miller Brewing Co., 749 S.W.2d 521, 524
(Tex. App. 1988).
filed his notice of appeal on May 9, 2019 (Doc. 24), and his
amended notice of appeal on May 31, 2019 (Doc. 26). His
notices focus on case management issues that have nothing to
do with the Court's reasoning why this case should be
dismissed with prejudice (Doc. 24 at 1-2; Doc. 26 at 1-2).
Plaintiff also conflates this case (about alcohol), with
cases involving other products including heart filters,
talcum powder, Round-Up and tobacco (Id.). Now,
Plaintiff seeks leave of Court to appeal in forma
pauperis (Doc. 27).
28 of the United States Code, Section 1915 provides in part:
[A]ny court of the United States may authorize the
commencement, prosecution or defense of any suit, action or
proceeding, civil or criminal, or appeal therein, without
prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets
such [person] prisoner possesses that the person is unable to
pay such fees or give security therefor. Such affidavit shall
state the nature of the action, defense or appeal and
affiant's belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1).
party's ability to file an appeal without paying court
fees is limited by the statutory provision that “[a]n
appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good
faith." 28 U.S.C. §1915(a)(3). The law “is
designed largely to discourage the filing of, and waste of
judicial and private resources upon, baseless lawsuits that
paying litigants generally do not initiate because of the
costs of bringing suit and because of the threat of sanctions
for bringing vexatious suits under Federal Rule of Civil
Procedure 11.” Neitzke v. Williams, 490 U.S.
319, 327 (1989).
faith is demonstrated where an appeal seeks appellate review
of any issue not frivolous.” Schmitt v. U.S. Office
of Pers. Mgmt., No: 8:09-cv-943-T-27EAJ, 2009 WL
3417866, at *2 (M.D. Fla. Oct. 19, 2009) (quoting
Coppedge v. United States, 369 U.S. 438, 445
(1962)); Howard v. King, 707 F.2d 215, 220-21 (5th
Cir. 1983). A frivolous case is one without arguable merit.
Sun v. Forrester, 939 F.2d 924, 925 (11th Cir.
1991). “In deciding whether an IFP appeal is frivolous,
a district court determines whether there is a factual and
legal basis, of constitutional dimension, for the asserted
wrong, however inartfully pleaded.” Sun, 939
F.2d at 925 (inner quotations and citations omitted); see
also Bell v. HCR Manor Care Facility of Winter Park, No.
6:10-cv-523-Orl-22KRS, 2010 WL 4096849, at *2 (M.D. Fla. Aug.
merits, I see no basis for a good faith appeal by Plaintiff.
“'Florida law dictates that manufacturers have no
duty to warn of the well-known effects of alcohol. The Court
is not persuaded to deviate from this well-established
precedent.'” (Doc. 22 at 2-3) (quoting Cook v.
MillerCoors, LLC, 872 F.Supp.2d at 1351. The Court's
ruling on the motion to dismiss is consistent with the great