United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION 
McCOY UNITED STATES MAGISTRATE JUDGE.
cause is before the Undersigned on the Order to Show Cause
filed on April 4, 2019 (Doc. 7). Plaintiff, David
Scott Hastings, failed to respond to the Order to Show Cause
or to file an amended complaint, as required, despite
receiving a total of four extensions of time to do so - two
extensions granted on Plaintiff's request (Docs. 8, 9,
10, 11) and two additional extensions granted sua
sponte by the Court (Docs. 12, 13).
relevant background of this case is as follows. Plaintiff
filed a Complaint on January 18, 2019, alleging a legal
malpractice claim under Fla. Stat. § 95.11.
(Doc. 1 at 1-2). The Complaint sets out three
counts: (1) Negligence under Florida Statute 95.11 as Against
Defendant Cyrus; (2) Negligence Under Florida Statute 95.11
as Against Defendant Sherman; and (3) Negligent Hiring and/or
Retention/Supervision Under Florida Statute 95.11 as Against
Defendant Smith. (Id. at 10, 14,
17). Plaintiff also filed an Application to Proceed
in District Court Without Prepaying Fees or Costs (Short
Form) at the same time as the Complaint, which was docketed
and construed by the Court as a motion to proceed in
forma pauperis, meaning without the prepayment of fees
and other costs. (See Doc. 2).
Undersigned reviewed Plaintiff's Complaint under 28
U.S.C. § 1915 and entered an Order on February 19, 2019
requiring that on or before March 21, 2019, Plaintiff must
file an Amended Complaint that complies with Fed. R. Civ.
P. 8 because the original Complaint failed to state a
claim. (See Doc. 6). When Plaintiff failed
to file an Amended Complaint, the Undersigned entered an
Order to Show Cause on April 4, 2019 that: (1) required
Plaintiff to show cause no later than April 25, 2019 why he
failed to file an Amended Complaint as ordered; (2) required
Plaintiff to file an Amended Complaint no later than April
25, 2019; and (3) warned Plaintiff that failure to comply
with the Order would result in the Undersigned recommending
that this action be dismissed. (Doc. 7 at 1-2).
did not comply with or respond substantively to the Order to
Show Cause, but he did file two motions for extension of time
seeking more time in which to file an Amended Complaint.
(See Docs. 8, 10). In these
motions, Plaintiff explained that he had undergone surgery
for medical conditions and he anticipated additional
surgeries in the near term to address personal health issues.
(Id.). Based on these representations, the
Undersigned granted extensions of time, setting and then
resetting Plaintiff's deadline for filing an Amended
Complaint to May 16, 2019 and then to May 28, 2019,
respectively. (See Docs. 9, 11). Plaintiff failed to
file an Amended Complaint by the May 28, 2019 deadline,
causing the Undersigned to sua sponte extend the
deadline first to June 3, 2019, (see Doc.
12), and then later to June 25, 2019, (see
Doc. 13). Each sua sponte order extending
Plaintiff's deadline to file an Amended Complaint warned
him that failure to comply would result in the Undersigned
recommending that the action be dismissed. (See
Docs. 12 at 1, 13 at1). Despite these generous, unsolicited
extensions of time, Plaintiff still has not filed an Amended
Complaint, and every deadline the Court has set for him to do
so has lapsed as of the date of this Report and
explained in the Undersigned's February 19, 2019 Order
(Doc. 6), 28 U.S.C. § 1915(e)(2)(B) requires the Court
to dismiss the case if it determines that the action is
frivolous or malicious, if it fails to state a claim upon
which relief may be granted, or if the complaint seeks
monetary relief against a defendant who is immune from such
relief. A complaint is considered to be frivolous when it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
Fed. R. Civ. P. 8(a), a pleading must contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support; (2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and (3) a demand for
the relief sought, which may include relief in the
alternative or different types of relief.
Fed. R. Civ. P. 8(a)(1)-(3). A plaintiff's
obligation to provide the “grounds” of his
“entitlement” to relief requires more than
labels, conclusions, and a formulaic recitation of the cause
of action's elements. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 561-63 (2007).
explained above, Mr. Hastings alleges legal malpractice
pursuant to Fla. Stat. § 95.11, (Doc. 1 at
1-2), and the Complaint contains three counts: (1)
Negligence under Florida Statute 95.11 as Against Defendant
Cyrus; (2) Negligence Under Florida Statute 95.11 as Against
Defendant Sherman; and (3) Negligent Hiring and/or
Retention/Supervision Under Florida Statute 95.11 as Against
Defendant Smith, (id. at 10, 14, 17).
claims arise out of a separate criminal proceeding in the
Twentieth Judicial Circuit, in and for Lee County, Florida.
(See generally Doc. 1). Specifically, in
2014, Mr. Hastings pleaded guilty to one charge of aggravated
stalking of his estranged wife and received a 48-month
probationary term. (Id. at 4). The aggravated
stalking charge was alleged to have been “in violation
of a Final Judgment for Protection that had never been
served on the Plaintiff.” (Id. at 3)
(emphasis in original). In 2017, a warrant for violation of
probation was issued for a misdemeanor violation. (Id. at
7). Mr. Hastings was arrested while he was on business
in Idaho and extradited to Lee County, Florida.
(Id.). The Lee County Public Defender's Office
was appointed to represent him, namely, Kathleen Smith, as
the Public Defender, and Amir Cyrus and Melissa Sherman, as
Assistant Public Defenders. (See Id. at 7-9).
Hastings argues that: (1) Defendant Cyrus failed to properly
investigate his case, failed to properly engage in discovery,
and failed to file various motions; (2) Defendant Sherman
failed to file a motion to vacate sentence pursuant to
Fla. R. Crim. P. 3.850; and (3) Kathleen Smith, as
the Public Defender for the Twentieth Judicial Circuit, and
her assistant public defenders failed to properly investigate
his case and file various motions, and that due to her
negligent hiring and supervision, Mr. Hastings was subjected
“to great physical and emotional pain, suffering,
humiliation, suffered extensive economic damages and deprived
of his constitutional rights and all other damages associated
with this claim.” (Id. at 10-22).
careful review of the Complaint, as set forth in the
Undersigned's February 19, 2019 Order (Doc. 6)
and herein, the Undersigned finds that Mr. Hastings has
failed to show how the allegations in the Complaint amount to
a cognizable claim in federal court. See
Twombly, 550 U.S. at 561-63. First, Mr. Hastings
brings all claims under Fla. Stat. § 95.11.
Section 95.11 does not create a civil cause of action but
instead governs the statute of limitations for actions other
than for the recovery of real property. Thus, Mr. Hastings
cannot state a claim under this section.
“[u]nder Florida law, a plaintiff must plead the
following elements to state a claim for legal malpractice:
(1) the attorney's employment; (2) the attorney's
neglect of a reasonable duty; and (3) that the attorney's
negligence was the proximate cause of loss to the
client.” Nova Cas. Co. v. Lucia, No.
809-CV-1351-T-30AEP, 2009 WL 2579313, at *2 (M.D. Fla. Aug.
19, 2009) (citing Law Office of David J. Stern, P.A. v.
Security Nat'l Serv. Corp., 969 So.2d 962, 969 (Fla.
2007)). However, Florida law requires that “one
who brings a cause of action for legal malpractice in a
criminal prosecution must first ‘obtain appellate or
postconviction relief.'” Garcia v. Diaz,
No. 17-10841, 2018 WL 5793430, at *4 (11th Cir. Nov. 5, 2018)
(quoting Steele v. Kehoe,747 So.2d 931, 933 (Fla.
1999)). While Mr. ...