United States District Court, M.D. Florida, Jacksonville Division
REPORT AND RECOMMENDATION 
C. RICHARDSON UNITED STATES MAGISTRATE JUDGE
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
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.”
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 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.)
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.)
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.)
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).
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).
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.
state a claim for relief under 42 U.S.C. § 1983,
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.
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).