United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE
the Court is: (1) U.S. Magistrate Judge Thomas B. Smith's
Report and Recommendation (Doc. 7
(“R&R”)); and (2) pro
se Plaintiff's Clarification on Order and Motions,
which the Court construes as a Rule 72(a) objection (Doc. 14
(“Objection”)). On review, the
Court adopts the R&R and overrules the Objection.
April 16, 2019, Plaintiff, proceeding pro se,
brought this action against Defendant Virgin Island
Government Employees Retirement System
(“GERS”) for failing to
distribute certain assets and benefits owed to her as the
administratrix of her father's estate. (Doc. 1.)
Plaintiff also filed a motion to proceed in forma
pauperis. (Doc. 2 (“IFP
Motion”).) On referral, U.S. Magistrate Judge
Thomas B. Smith carried the IFP Motion, permitting Plaintiff
to file an amended complaint that establishes subject matter
jurisdiction and explains why venue is proper in the U.S.
District Court for the Middle District of Florida. (Doc. 3,
pp. 2-4.) The deadline passed, and Plaintiff did not file an
amended complaint. So Magistrate Judge Smith now recommends
denying the IFP motion, dismissing the case without
prejudice, and closing the file. (Doc. 7
Magistrate Judge Smith finds Plaintiff failed to both state a
cause of action and establish that the U.S. District Court
for the Middle District of Florida is a proper venue for this
action against GERS, a Virgin Islands government entity.
(Id. at 3-4.)
subsequently filed an “Affidavit of Amended Complaint
and Request for Injunction, ” which was filed on the
docket twice-as both an amended complaint (Doc. 10) and a
motion to appoint counsel (Doc. 11
(“Motion”).) Plaintiff alleges,
among other things, that she is unable to pay the filing
fees, this Court has jurisdiction because her claim is based
on the Employee Retirement Income Security Act, and she needs
the assistance of counsel because of her vision impairment.
(Id.) Magistrate Judge Smith denied the Motion,
finding Plaintiff does not satisfy the “exceptional
circumstances” necessary for the appointment of counsel
in this matter. (Doc. 12, p. 2
Plaintiff filed her Objection to the Order and requests the
Court appoint an attorney to represent her in this action.
(Doc. 14 (“Objection”).)
the Court addresses Plaintiff's Objection. Plaintiff
contends Magistrate Judge Smith did not did not properly
consider her disability and vision problems and requests the
Court appoint an attorney to represent her in this case.
(Doc. 14.) On review, the Objection is overruled.
may seek review of a magistrate judge's ruling on a
non-dispositive matter by serving and filing objections
within fourteen days after being served with a copy.
Fed.R.Civ.P. 72(a). A non-dispositive matter is one that does
not dispose of any party's claim or defense. Smith v.
Sch. Bd. of Orange Cty., 487 F.3d 1361, 1365 (11th
Cir.2007). If a proper objection is made, “[t]he
district judge in the case must consider timely objections
and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed.R.Civ.P. 72(a);
see Howard v. Hartford Life & Acc. Ins. Co., 769
F.Supp.2d 1366, 1372 (M.D. Fla. 2011) (noting that under Rule
72(a), “in order to prevail, [the party who makes the
objection] must establish that the order is clearly erroneous
or contrary to law.”); Ray v. Cutter Labs., Div. of
Miles, Inc., 746 F.Supp. 86, 87 (M.D. Fla. 1990)
(“[I]t is proper to apply the clearly erroneous
standard when reviewing a magistrate's order.”). A
finding is clearly erroneous “when although there is
evidence [in the record] to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395,
(1948). A finding is considered contrary to law if it does
not apply or misapplies the relevant statutes, case law, or
rules of procedure. Tompkins v. R .J. Reynolds Tobacco
Co., 92 F.Supp.2d 70, 74 (N.D.N.Y. 2000).
Plaintiff argues Magistrate Judge Smith improperly denied her
motion for appointment of counsel. (Doc. 14; see
also Docs. 11, 13.) But there is no absolute right to
counsel in civil cases, and appointment of counsel is
warranted only in “exceptional circumstances.”
Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996).
Exceptional circumstances exist “where the facts and
legal issues are so novel or complex as to require the
assistance of a trained practitioner.” Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).
“The key is whether the pro se litigant needs
help in presenting the essential merits of his or her
position to the court. Where the facts are simple, he or she
usually will not need such help.” Kilgo v.
Ricks, 983 F.2d 189, 193 (11th Cir. 1993).
Court finds the Order was not clearly erroneous. Nothing
about the facts or issues in Plaintiff's complaint are so
complex that the assistance of counsel is required.
(See Doc. 1.) Further, Magistrate Judge Smith
specifically noted that Plaintiff “suffers from an
unspecified disability and vision problem.” (Doc. 13,
p. 1.) But, despite her disability, Plaintiff's Motion
and Objection reveal that she can locate and cite legal
authority, such that it is clear that she does not need
assistance in presenting her arguments. (See Docs.
11, 14.) Thus, Plaintiff's Objection is
the Court turns to Magistrate Judge Smith's R&R,
which recommends denying the IFP motion, dismissing the case
without prejudice, and closing the file. (Doc. 7, p. 4.)
Specifically, Judge Smith finds Plaintiff failed to establish
that this Court is the proper venue for the action and failed
to state a cause of action. (Id. at 3-4.)
parties did not object to the R&R, and the time for doing
so has now passed. To the extent Plaintiff intended the
“Affidavit of Amended Complaint and Request for
Injunction” to serve as an amended complaint (Doc. 10),
the Court finds the purported amended complaint ...