United States District Court, M.D. Florida, Ocala Division
MENNDEK M. CUSHE Plaintiff,
DONALD R. JENKINS, et al., Defendants.
REPORT AND RECOMMENDATION 
R. LAMMENS, UNITED STATES MAGISTRATE JUDGE
referral, this case is before the Court on pro se
Plaintiff's motion to proceed in forma pauperis.
The Court previously took under advisement Plaintiff's
motion to proceed in forma pauperis and gave
Plaintiff until July 5, 2019 to file an amended complaint,
which he has now done. (Doc. 7). For the following reasons,
Plaintiff's motion to proceed in forma pauperis
(Doc. 4) should be denied and the amended complaint (Doc. 7)
should be dismissed.
has filed an amended complaint purporting to bring claims
against the following Defendants: Tom Iso, Phil Barber,
Ronald Carter, Donald R. Jenkins, Jay Hurley, Doug Ray, and
three Unnamed Parties. (Doc. 7). It is difficult to ascertain
from Plaintiff's vague and conclusory allegations, and
his disjointed narrative, exactly what is alleged against
each individual defendant and the timeline of events.
appears that Plaintiff took his car in for service at Jenkins
Nissan and soon after leaving, noticed a nail in his tire.
Plaintiff returned to the shop where the mechanics replaced
the tire with a spare and suggested that Plaintiff return the
next day to have a new tire installed. The next day, the
dealership refused to compensate Plaintiff for the cost of
the new tire. At this point, Plaintiff sent in a grievance to
the corporate office. Plaintiff then returned to the
dealership the following day at which point an argument
ensued. Plaintiff concedes that he was angry with the service
he received and yelled at the service manager. (Doc. 7 ¶
61). After Plaintiff yelled at the service manager, Plaintiff
alleges he left the premises when the dealership suggested
that they would call the police on him for trespassing.
Plaintiff maintains that he was baited into yelling at the
service manager and that the poor service he received was
motivated by racial animus. (Doc. 7).
point, Plaintiff does not indicate when, Plaintiff approached
Doug Ray, the executive editor of the Ocala Star Banner, to
tell him about these allegations. This appears to have been
an attempt to get a story published about the alleged racial
discrimination by Jenkins Nissan, but Doug Ray declined to
report on this story. Plaintiff maintains that Doug Ray's
refusal to publish a story on his allegations was motivated
by racial animus. Plaintiff claims that Doug Ray operates his
paper in a manner that conceals racial discrimination in the
community to serve “caucasian interests.” (Doc. 7
¶ 88). Plaintiff also suggests that Doug Ray and Jenkins
Nissan conspired together to conceal the racial
discrimination alleged in this complaint. (Doc. 7 ¶ 88).
individual may be allowed to proceed in forma
pauperis if the individual declares in an affidavit that
she “is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). However, before
a plaintiff is permitted to proceed in forma
pauperis, the Court is obligated to review the complaint
to determine whether it is frivolous, malicious, or
“fails to state a claim upon which relief may be
granted.” Id. § 1915(e)(2). If the
complaint is deficient, the Court is required to dismiss the
suit sua sponte. Id.
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.
1984). In evaluating a complaint under § 1915, a
document filed pro se is to liberally construed. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). However,
“[i]ndigence does not create a constitutional right to
the expenditure of public funds and the valuable time of the
courts in order to prosecute an action which is totally
without merit.” Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984).
bare minimum a plaintiff must set forth in the complaint is
found in Federal Rule of Civil Procedure 8 and explained
further in Iqbal and Twombly. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007). “A pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). While
particularity is not required under Rule 8, as it is under
Rule 9, “[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
Eleventh Circuit utilizes a two-pronged approach in its
application of the holdings in Iqbal and
Twombly. First, “eliminate any allegations in
the complaint that are merely legal conclusions, ” and
then, “where there are well-pleaded factual
allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.'” Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting
Iqbal, 556 U.S. at 679). In applying these
principles, the Court can infer “‘obvious
alternative explanation[s],' which suggest lawful conduct
rather than the unlawful conduct the plaintiff would ask the
court to infer.” Id. (quoting Iqbal,
556 U.S. at 682). In short, the law requires something more
“than an unadorned the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678.
Plaintiff is proceeding pro se in this action, he is
“still required to conform to procedural rules, and the
court is not required to rewrite a deficient pleading.”
Washington v. Dep't of Children and Families,
256 Fed.Appx. 326, 327 (11th Cir. 2007). While the Court
gives more deference to pro se litigants, this
deference “does not give a court license to serve as de
facto counsel for a party or to rewrite an otherwise
deficient pleading in order to sustain an action.”
GJR Inv. v. Cty. of Escambia, Florida, 132 F.3d
1359, 1369 (11th Cir. 1998). Despite being given the
opportunity to amend, Plaintiff's amended complaint fails
to state a claim.
most basic level, Plaintiff's amended complaint fails to
comply with Rule 8's requirement that the complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief” in
order to “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.”
Am. Dental, 605 F.3d at 1288 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Here, Plaintiff names
nine Defendants without pleading sufficient factual
allegations indicating how each Defendant is legally
responsible for each of the alleged wrongs. Plaintiff sets
forth his allegations in a disjointed, unfocused
forty-nine-page narrative, that is “replete with
conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action.” See
Weiland v. Palm Beach Cty. ...