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Cushe v. Jenkins

United States District Court, M.D. Florida, Ocala Division

July 12, 2019

MENNDEK M. CUSHE Plaintiff,
v.
DONALD R. JENKINS, et al., Defendants.

          REPORT AND RECOMMENDATION [1]

          PHILIP R. LAMMENS, UNITED STATES MAGISTRATE JUDGE

         Upon 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.

         I. Background

         Plaintiff 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.

         It 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).

         At some 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).

         II. Legal Standard

         An 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.

         “A 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).

         The 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).

         The 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.

         III. Discussion

         Although 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.

         At the 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. ...


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