United States District Court, M.D. Florida, Ocala Division
REPORT AND RECOMMENDATION 
R. LAMMENS UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
claims arise from his ongoing Florida divorce and child
custody proceedings- No. 2016-DR-136 filed in Sumter County,
Florida. 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).
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.
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).
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.
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 ...