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Nicholas v. Ball

United States District Court, S.D. Florida

November 6, 2019

DAMON NICHOLAS, Plaintiff,
v.
NICOLE BALL, Assistant State Attorney of Michael J. Satz Attorney Office,

          ORDER WITHDRAWING REFERENCE, DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, AND DISMISSING CASE

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon the pro se Plaintiff's Motion for Leave to Proceed in Forma Pauperis, ECF No. [3] (the “Motion”), filed in conjunction with Plaintiff's Complaint, ECF No. [1] (the “Complaint”). This case was automatically referred to Magistrate Judge Lisette M. Reid pursuant to Administrative Order 2019-2. ECF No. [2]. The Court WITHDRAWS the reference, ECF No. [2], and for the reasons set forth below, Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE and the Motion is DENIED AS MOOT.

         Plaintiff Damon Nicholas (“Plaintiff” or “Nicholas”) has not paid the required filing fee and, thus, the screening provisions of 28 U.S.C. § 1915(e) are applicable. Fundamental to our conception and system of justice is that the courthouse doors will not be closed to persons based on their inability to pay a filing fee. Congress has provided that a court “may authorize the commencement . . . or prosecution of any suit, action or proceeding . . . or appeal therein, without the prepayment of fees . . . therefore, by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay such fees . . . .” 28 U.S.C. § 1915(a)(1); see Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004) (interpreting statute to apply to all persons seeking to proceed in forma pauperis (“IFP”)). Permission to proceed in forma pauperis is committed to the sound discretion of the court. Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986); see also Thomas v. Chattahoochee Judicial Circuit, 574 Fed.Appx. 916, 916 (11th Cir. 2014) (“A district court has wide discretion in ruling on an application for leave to proceed IFP.”). However, “proceeding in forma pauperis is a privilege, not a right.” Camp, 798 F.2d at 437.

         In addition to the required showing that the litigant, because of poverty, is unable to pay for the court fees and costs, Martinez, 364 F.3d at 1307, upon a motion to proceed in forma pauperis the Court is required to examine whether “the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint satisfies any of the three enumerated circumstances under Section 1915(e)(2)(B), the Court must dismiss the complaint.

         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Importantly, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and [are] liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “But the leniency accorded pro se litigants does not give a court license to serve as de facto counsel for a party or to rewrite an otherwise deficient pleading to sustain an action.Matthews, Wilson & Matthews, Inc. v. Capital City Bank, 614 Fed.Appx. 969, 969 n.1 (11th Cir. 2015) (citing GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)).

         The Complaint in this case must be dismissed because it fails to state a claim. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must plead that he was (1) deprived of a right; (2) secured by the Constitution or laws of the United States; and (3) that the alleged deprivation was committed under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001). In the Complaint, Nicholas claims violations of his Sixth Amendment right, right to due process under the Florida State Constitution, and political double jeopardy. Although the Court liberally construes pro se pleadings, the Court is not free to construct causes of action for which adequate facts are not pleaded. As pleaded, the Complaint is entirely devoid of facts to state plausible claims based on Plaintiff's stated theories. As the Court is unable to ascertain any plausible claim for relief from Plaintiff's allegations, the instant action must be dismissed.

         Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Complaint, ECF No. [1], is DISMISSED WITHOUT PREJUDICE.
2. Plaintiff's Motion, ECF No. [3], is DENIED AS MOOT.
3. The Clerk of Court is directed to CLOSE this case.

         DONE ...


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