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Lynum v. Morley

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

July 18, 2019

EDWARD LYNUM, Plaintiff,
v.
MICHELLE T. MORLEY and FIFTH JUDICIAL CIRCUIT FOR SUMTER COUNTY, FLORIDA Defendants.

          REPORT AND RECOMMENDATION [1]

          PHILIP R. LAMMENS UNITED STATES MAGISTRATE JUDGE

         This action grew out of divorce and child custody proceedings in the Florida court system between Edward Lynum (a licensed attorney), who brings this action as a pro se plaintiff, and his former wife, Aliya Karama Killion. In his Amended Complaint (Doc. 15), Plaintiff alleges that Circuit Court Judge Michele T. Morley, and subsequent Circuit Judges assigned after Judge Morley's recusal, including Senior Circuit Judge Daniel B. Merritt, violated his constitutional rights and state law, for which he now seeks monetary damages, as well as injunctive and declaratory relief. In the instant motion (Doc. 2), Plaintiff moves the Court to proceed in forma pauperis. For the following reasons, the motion should be denied and the Amended Complaint dismissed.

         I. Legal Standards

         An individual may be allowed to proceed in forma pauperis if he declares in an affidavit that he “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, “fails to state a claim upon which relief may be granted[, ]” or “seeks monetary relief against a defendant who is immune from such relief.” 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 and Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1984) (internal citations omitted). The district court may dismiss a complaint under §1915 on grounds of frivolousness if an affirmative defense would defeat the action. Id. at 640. For example, the absolute immunity of the defendant would justify the dismissal of a claim as frivolous. Id. at 640, n. 2. “When the defense is apparent from the face of a complaint or the court's records, courts need not wait and see if the defense will be asserted in a defensive pleading.” Id. “Indigence 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) (citing Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979)).

         In evaluating a complaint under §1915, a document filed pro se is to be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the Supreme Court has noted:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544] at 570, 127 S.Ct. 1955');">127 S.Ct. 1955, [167 L.Ed.2d 929, 2007]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955');">127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a), Federal Rules of Civil Procedure, does not require detailed factual allegations, “it demands more than an unadorned, the defendant unlawfully-harmed-me accusation.” Id. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 544, 555.

         II. Background

         Plaintiff's claims arise from his ongoing Florida divorce and child custody proceedings- No. 2016-DR-136 filed in Sumter County, Florida.[2] Specifically, Plaintiff takes issue with Judge Morley's handling of a motion filed by Ms. Killion for the temporary relocation of their minor daughter to Hillsborough County. After conducting a hearing on the motion, Judge Morley emailed counsel advising that the motion was granted and directing Ms. Killion's counsel to draft the order subject to Plaintiff's counsel's approval. (Doc. 15-3 at 37-56). Plaintiff objected to this email communication as improper. On August 13, 2018, Judge Morley issued the final Order. (Doc. 15-2).

         Plaintiff alleges that Judge Morley's Order “infringes on Plaintiff's constitutional due process rights and liberty interests to parent his child;” that Judge Morley engaged in a pattern of extrinsic fraud and that Plaintiff was unable to litigate allegations of his former wife's mental illnesses and his child's well-being; that the “state court orders violate Plaintiff's due process rights under the Fifth Amendment;” that his liberty interest to rear his child as a Christian has been attacked by Judge Morley and unconstitutionally limited without due process; and that the state court orders substantially burden Plaintiff's religious exercise.

         The same day she entered the above Order, Judge Morley recused herself from the case. (Doc. 15-5). Plaintiff alleges that subsequent judges assigned to the case, including Judge Merritt, have continued to deny Plaintiff's constitutional rights to due process of law by rendering orders that deprive his religious and parenting constitutional liberties. Specifically, Plaintiff points to four child pick-up orders (Doc. 15-6), a time-sharing modification order (Doc. 1-9), and Judge Merritt's July 10, 2019 Order suspending Plaintiff's timesharing and substituting supervised visitation at a facility in Tampa, Florida. (Doc. 15-7).

         Plaintiff alleges that he has requested “de novo” review of the state's action from its inception through December of 2018 via a direct appeal to Florida Fifth District Court of Appeals, No. 5D19-1945. He also alleges that on April 1, 2019 he filed a petition for juvenile dependency in Hillsborough County, case number 2019-DP-265, challenging Judge Morley's August 13, 2018 Order.

         In his Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 and state law alleging that Defendants have violated his rights secured by the Establishment Clause of the First Amendment, as well as the Fifth and Fourteenth Amendments, and the Florida constitution. Plaintiff seeks a permanent injunction staying Judge Morley's August 14, 2018 Order, the November 27, 2018 time-sharing modification Order, and Judge Merritt's July 10, 2019 suspension Order; (2) a declaration that the Orders violate Plaintiff's First Amendment religious and parenting liberties as guaranteed by the Fourteenth Amendment to the United States Constitution and article 1, section 9 of the Florida ...


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