United States District Court, S.D. Florida
ORDER WITHDRAWING REFERENCE, DENYING MOTION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS, AND DISMISSING CASE
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon the pro se
Plaintiff's Motion for Leave to Proceed in Forma
Pauperis, ECF No.  (the “Motion”), filed
in conjunction with Plaintiff's Complaint, ECF No. 
(the “Complaint”). This case was automatically
referred to Magistrate Judge Lisette M. Reid pursuant to
Administrative Order 2019-2. ECF No. . The Court
WITHDRAWS the reference, ECF No.
, and for the reasons set forth below,
Plaintiff's Complaint is DISMISSED WITHOUT
PREJUDICE and the Motion is DENIED AS
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.
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.
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
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)).
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.
it is ORDERED AND ADJUDGED as follows:
1. The Complaint, ECF No. , is
DISMISSED WITHOUT PREJUDICE.
2. Plaintiff's Motion, ECF No. , is
DENIED AS MOOT.
3. The Clerk of Court is directed to CLOSE