United States District Court, M.D. Florida, Orlando Division
DALTON JR. UNITED STATES DISTRICT JUDGE
proceeding pro se, allege that Defendants wiretapped
their phones, hacked their computers, tampered with their
mail, installed cameras in their home, and disclosed
information found through this surveillance to third parties,
including the media and Plaintiffs' friends. (Doc. 1
(“Complaint”).) This is the
third time that Plaintiffs have filed a complaint against
Defendants regarding these allegations. See Barnes v.
FCC, FBI, and NSA, No. 6:16-cv-1585-Orl-18TBS;
Barnes v. FCC, FBI, and NSA, No.
6:18-cv-634-Orl-18GJK. Plaintiffs' Complaint mentions
violations of various constitutional amendments, the Privacy
Act of 1974, the Patriot Act, the Electronic Communications
Privacy Act, and the Wiretap Act. (Doc. 1.) Plaintiffs also
allege numerous torts, including invasion of privacy,
misappropriation, and slander. (Id.)
filed a motion to proceed in forma pauperis (Doc. 2
(“IFP Motion”)), triggering a
review of the Complaint under 28 U.S.C. § 1915(e)(2)(B).
On referral, U.S. Magistrate Judge Gregory J. Kelly
recommended that: (1) Plaintiffs' IFP Motion be denied;
and (2) Plaintiffs' Complaint be dismissed with
prejudice. (Doc. 8 (“R&R”).)
Specifically, Magistrate Judge Kelly determined that
Plaintiffs' allegations were frivolous and failed to
state a claim under Federal Rule of Civil Procedure 8.
(Id.) Plaintiffs object to the R&R. (Doc. 11.)
On review, the Court finds that the R&R should be adopted
in part and rejected to the extent it recommends dismissing
the Complaint with prejudice.
party objects to a magistrate judge's findings, the
district court must “make a de novo determination of
those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). The district
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Id. The district court must consider
the record and factual issues based on the record independent
of the magistrate judge's report. Ernest S. ex rel.
Jeffrey S. v. State Bd. of Educ. of State of Ga., 896
F.2d 507, 513 (11th Cir. 1990).
a plaintiff may proceed in forma pauperis-as
Plaintiff seeks to do in this case (see Doc. 2)-the
court must 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 an
immune defendant. 28 U.S.C. § 1915(e)(2).
dismissal under § 1915 for failure to state a claim upon
which relief may be granted is governed by the same standard
as dismissal under Federal Rule of Procedure 12(b)(6).
Weakley v. Connolly, 714 Fed.Appx. 972, 973 (11th
Cir. 2018); see also Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997) (“The language of section
1915(e)(2)(B)(ii) tracks the language of Federal Rule of
Civil Procedure 12(b)(6) . . . .”).
survive dismissal, a complaint must contain sufficient
factual matter to “state a cla im to relief that is pla
usible on its fa ce. ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In testing the
sufficiency of a complaint, courts do not consider other
matters outside the four corners of the pleading and must:
(1) disregard conclusory allegations, bald legal assertions,
and formulaic recitation of the elements of a claim; (2)
accept the truth of well-pled factual allegations; and (3)
view well-pled facts in the light most favorable to the
plaintiff. See Hayes v. U.S. Bank Nat'l
Ass'n, 648 Fed.Appx. 883, 887 (11th Cir. 2016);
Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
contend that they have facts and evidence to support their
Complaint but have failed to provide those facts.
(See Docs. 1, 11.) For example, Plaintiffs allege
that they “have substantial evidence of the
surveillance cameras installed in their cable boxes”
and of “medical history being posted on the Internet by
federal defendants.” (Doc. 11, p. 1-2.) Although
Plaintiffs are not required to put forth evidence at this
stage, Plaintiffs' allegations, as they currently stand,
are not plausible on their face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (“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.”). The
Court is unable to draw a reasonable inference of misconduct
from Plaintiffs' Complaint, and additional factual
allegations are necessary to push the Complaint beyond mere
conclusions and into plausibility.
as Plaintiffs are proceeding pro se, the Court will
provide Plaintiffs one final opportunity to file an amended
complaint that adequately establishes that Plaintiffs have a
plausible, non-frivolous claim. Before doing so, Plaintiffs
are encouraged to consult the resources available to pro
se litigants on the Court's website. Plaintiffs should
also take advantage of the in-person legal information
program, which is provided free of charge and administered
every Tuesday from 11:00 a.m. to 12:30 p.m. at the George C.
Young U.S. Courthouse, 401 W. Central Blvd., Orlando, Florida
32801. Contact information is located on the
Court's website, http://www.flmd.uscourts.gov/.
conducted an independent, de novo review of the portions of
the record to which Plaintiffs objected, the Court agrees
with the findings and conclusions set forth in the R&R.