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Gandy v. Boatwright

United States District Court, M.D. Florida, Jacksonville Division

November 6, 2019

SANDRA GANDY, Plaintiff,



         THIS CAUSE is before the Court on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (“Application”) (Doc. 2). For the reasons stated herein, the undersigned respectfully RECOMMENDS that the Application be DENIED and the case be DISMISSED.

         I. Introduction

         On September 12, 2019, pro se Plaintiff, Sandra Gandy, filed her Application along with her Complaint against Officer Bobby Boatwright and Hamilton County Sheriff's Office for Negligent Intentional [sic] Homicide and Violations of Plaintiff['s] Son Antonio Javar Whetstone['s] 4th Amendment Rights (“Complaint”). (Docs. 1, 2.) On September 30, 2019, Plaintiff filed her Amended Complaint against Officer Bobby Boatwright and Hamilton County Sheriff's Office, which is virtually identical to the original Complaint. (Doc. 4.) The Amended Complaint, like the original Complaint, includes six counts: (1) negligence; (2) “[v]iolations of Antonio Javar Whetstone's 4th Amendment [c]ivil [r]ights”; (3) “[n]egligent [h]omicide[, ] [w]rongful [d]eath”; (4) “[l]ack of [r]esponsibility, [d]ue [c]are, and [c]over up”; (5) misconduct; and (6) “[c]ode of [s]ilence.” (Id.)

         Specifically, Plaintiff alleges that on December 11, 2005, her son was in a hotel room with a white female at the Florida Inn in Jennings, Florida, when someone tried to break into the room, prompting her son to call 911. (Id. at 5-6, 8.) Officer Boatwright was dispatched to the scene where he found the alleged intruder, Lavita Channel Daniels. (Id. at 6.) Officer Boatwright allegedly assumed[2] that Plaintiff's son was armed and dangerous, tased him numerous times, and unloaded his weapon on him, which caused his untimely death. (See Id. at 5-6, 11.)

         Plaintiff alleges that Officer Boatwright's actions were unreasonable, unnecessary, careless, wanton, willful, reckless, intentional, knowing, and in violation of Hamilton County Sheriff's Office policy of reasonable action to mitigate an on-scene situation. (See Id. at 5, 7-9.) Plaintiff further alleges that Officer Boatwright used excessive force in violation of her son's Fourth Amendment rights, which was the proximate cause of his death. (Id. at 6-8.)

         In addition, Plaintiff alleges that Hamilton County Sheriff's Office failed to investigate Officer Boatwright's careless and wanton actions, engaged in a cover-up (as the decedent allegedly did not have a gun on his person and Officer Boatwright planted one at the scene), failed to properly train Officer Boatwright, and “allowed a culture of misconduct to fester amongst its officers.” (Id. at 6, 9-12.) The Complaint seeks, inter alia, money damages for Plaintiff and her family's mental anguish, pain and suffering, fear, anxiety, and depression. (Id. at 6, 9-10, 12-13.)

         II. Standard

         Pursuant to 28 U.S.C. § 1915(a)(1), the Court may allow a plaintiff to proceed without prepayment of fees or costs where the plaintiff has demonstrated through the filing of an affidavit that she is “unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Even assuming that the Application sufficiently demonstrates that Plaintiff meets the financial criteria and is therefore entitled to proceed in forma pauperis, when such an application is filed, the Court is also obligated to review the case pursuant to 28 U.S.C. § 1915(e)(2) and to dismiss the case if it determines that the action “(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)(B). The Court must also dismiss the case sua sponte, if it determines at any time that it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).

         “The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6), ” and therefore, courts apply the same standard in both contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). An action fails to state a claim on which relief may be granted if it fails to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Harper v. Lawrence Cnty., Ala., 592 F.3d 1227 (11th Cir. 2010) (citing Fed.R.Civ.P. 8(a)(2), 12(b)(6)). To show entitlement to relief, Plaintiff must include a short and plain statement of facts in support of her claims. Fed.R.Civ.P. 8(a). This statement of facts must show the plausibility of Plaintiff's claim. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “[L]abels and conclusions” are not enough to satisfy the “plausibility” standard. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A complaint filed in forma pauperis which fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S. 319, 328 (1989). “A claim is frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citing Battle v. Cent. State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)), cert. denied, 534 U.S. 1044 (2001). Section 1915(e)(2)(B)(i) dismissals should only be ordered when the legal theories are “indisputably meritless, ” id. at 327, or when the claims rely on factual allegations which are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Additionally, a claim may be dismissed as frivolous when it appears that a plaintiff has little or no chance of success. Bilal, 251 F.3d at 1349.

         To state a claim for relief under 42 U.S.C. § 1983, [3] a plaintiff must allege, first, a violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). In addition, for liability under § 1983, a plaintiff must allege an affirmative causal connection between the defendant's conduct and the alleged constitutional deprivation. Swint v. City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995).

         Finally, the pleadings of pro se litigants, like Plaintiff, must be construed liberally and “are held to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 448 U.S. 5, 9 (1980) (per curium); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (stating that pleadings submitted by pro se parties “are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed”). Further, courts should not dismiss a complaint for failure to state a claim, pursuant to Section 1915(e)(2)(B)(ii), “without allowing leave to amend when required by Fed.R.Civ.P. 15.” Troville v. Venz, 303 F.3d 1256, 1260 n.5 (11th Cir. 2002); see also Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam) (“Certainly, the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.”). Courts are under no duty, however, to Are-write” a plaintiff's complaint to find a claim. Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).

         III. ...

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