Romano v. Doe (1) et al
Filing
12
ORDER OF DISMISSAL dismissing 1 Complaint without prejudice pursuant to § 1915(e)(2)(B)(i)-(iii). The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/22/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY TONY ROMANO,
Plaintiff,
vs.
Case No.
2:13-cv-246-FtM-29DNF
JOHN DOE (1), Florida Department of
Correction
Probation
Department
Supervisor, ROB MORISON, Officer,
RICHARD GORDEN, Officer and STEVE
MARESCA, State of Florida Attorney
G e n e r a l's
O f f ic e
Attorney
Prosecuting
Plaintiff's
Criminal
Case all sued in their individual
and official capacities,
Defendants.
___________________________________
ORDER OF DISMISSAL
Plaintiff
Anthony
Romano,
a
prisoner
proceeding
pro
se,
initiated this action by filing a Civil Rights Complaint Form (Doc.
#1,
Complaint) pursuant to 42 U.S.C. § 1983 on March 13, 2013.
1
Plaintiff seeks leave to proceed in forma pauperis (Doc. #2).
I.
The Prison Litigation Reform Act requires that the Court
review all complaints filed by prisoners against a governmental
entity to determine whether the action is “frivolous, malicious, or
fails to state a claim upon which relief can be granted; or seeks
1
According to the Complaint, all of the named Defendants, with
the exception of attorney Maresca, are located in Pinellas Park,
Florida. Complaint at 4. The Court finds it not in the interests
of justice to transfer the action to the Tampa Division because the
action is subject to dismissal under § 1915.
monetary relief from a defendant who is immune from such relief.”
See 28 U.S.C. § 1915A(a), (b)(1), (b)(2).
In essence, § 1915 is a
screening process to be applied sua sponte and at any time during
the proceedings.2
In reviewing a complaint, however, the Court
accepts the allegations in the complaint as true, Boxer v. Harris,
437
F.3d
1107,
established
1110
rule
(11th
that
Cir.
pro se
2006),
complaints
and
applies
are
to
be
the
long
liberally
construed and held to a less stringent standard than pleadings
drafted
by
attorneys.
Erickson
v.
Pardus,
551
U.S.
89,
94
(2007)(citations omitted).
A complaint is frivolous under § 1915 if it lacks arguable
merit either in law or fact.
Napier v. Preslicka, 314 F.3d 528,
532 (11th Cir. 2002), cert. denied, 124 S. Ct. 1038 (2004);
Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1315
(11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001), cert. denied, 534 U.S. 1044 (2001).
claims
include
claims
‘describing
Further, “[f]rivolous
fantastic
or
delusional
scenarios, claims with which federal district judges are all too
familiar.’”
490
U.S.
Bilal, 251 U.S. at 1349 (quoting Neitzke v. Williams,
319,
328
(1989)).
A
2
lawsuit
is
frivolous
if
the
Similarly, pursuant to § 1915, “notwithstanding any filing fee
. . . that may have been paid, the court shall dismiss the case at
any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim upon which
relief may be granted; or seeks monetary relief against a defendant
who is immune from such relief. § 1915(e)(2)(B)(i)-(iii).
-2-
“plaintiff’s realistic chances of ultimate success are slight.”
Clark v. Georgia Pardons and Parole, 915 F.2d 636, 639 (11th Cir.
1990)(citations omitted).
The standards that apply to a dismissal for failure to state
a claim under Fed. R. Civ. P. 12(b)(6) apply to a dismissal under
§ 1915.
Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th
Cir. 2001).
Under Rule 12(b)(6), the court views all allegations
in the Complaint as true and construes them in the light most
favorable to the Plaintiff.
1284 (11th Cir. 2008).
Pielage v. McConnell, 516 F.3d 1282,
The standard governing Federal Rule of
Civil Procedure 12(b)(6) dismissals apply to dismissals under §
1915(e)(2)(B)(ii).
Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir. 2008); Mitchell v. Carcass, 112 F.3d 1483, 1490 (11th Cir.
1997).
Thus, a complaint is subject to dismissal for failure to
state a claim if the facts as plead do not state a claim for relief
that is plausible on its face.
544, 556 (2007).
Bell Atlantic v. Twombly, 550 U.S.
A claim is plausible where the plaintiff alleges
facts that “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal,
556
U.S.
____,
129
S.
Ct.
1937,
1949
Ashcroft v.
(2009).
The
plausibility standard requires that a plaintiff allege sufficient
facts “to raise a reasonable expectation that discovery will reveal
evidence” that supports the plaintiff’s claim.
Twombly, 550 U.S.
at 556. Specifically, although a complaint "does not need detailed
-3-
factual allegations . . . a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.”
Thus,
Id. at 555 (citations omitted).
“the-defendant-unlawfully
insufficient.
harmed
Ashcroft, 129 S. Ct. at 1949.
me
accusation”
is
“Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”
Id.
Additionally, there is no longer a heightened
pleading requirement.
Randall, 610 F.3d at 701.
The Court may
dismiss a case when the allegations in the complaint on their face
demonstrate that an affirmative defense bars recovery of the claim.
Marsh, 268 F.3d at 1022; Cottone v. Jenne, 326 F.3d 1352, 1357
(11th Cir. 2003); Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir.
2008).
II.
Plaintiff files this action against: the “Florida Department
of Correction State Prohibition Supervisor,” Probation Officer
Richard Gorden, Probation Officer Rob Morison, and the attorney who
is apparently prosecuting Plaintiff’s violation of probation, Steve
Maresca, who Plaintiff identifies as an “attorney with the Office
of the Florida Attorney General.”
Complaint at 4.
The gravamen of
the Complaint stems from an alleged violation of probation based on
Plaintiff’s drug use.
See generally Complaint.
Plaintiff states
that, on September 26, 2011, probation officers Morison and Gorden
-4-
searched
every
room
of
his
house
paraphernalia (a pipe) under his bed.
until
Id. at 6.
they
found
drug
Plaintiff claims
that these probation officers searched his house in retaliation for
Plaintiff successfully litigating an unrelated § 1983 action.
Id. at 6.
Plaintiff also claims that the “prosecutor” is seeking
a twenty-year sentence as a result of his violation of probation
for the same reason.
Specifically, Plaintiff alleges that the
“state
attorney
prosecution’s
[is]
acting
with
deliberate
retaliation asking 20 years for first time cocaine in urine [sic]
proves ongoing punishment is unconstitutional punishment against
the plaintiff for filing and winning [sic] lawsuit.”
Id. at 8.
Plaintiff believes he should have been offered an opportunity to
attend a drug rehabilitation program.
Id.
As relief, Plaintiff
requests that the Court move his “criminal case” to the federal
court because “at this point everyone work[s] for [the] State of
Florida or [sic] county.
conviction.”
Assure [sic] retaliation punishment
Id.
III.
The Court finds the instant Complaint is due to be dismissed
as frivolous or for failing to state a claim.
To prevail on a
retaliation claim, a plaintiff must establish that: (1) his speech
was constitutionally protected; (2) he suffered adverse action such
that official’s allegedly retaliatory conduct would likely deter a
person of ordinary firmness from engaging in such speech; and (3)
-5-
there is a causal relationship between the retaliatory action and
the protected speech. O’Bryant v. Finch, 637 F.2d 1207, 1212 (11th
Cir. 2011)(internal quotations omitted); Moton v. Cowart, 631 F.3d
1337, 1341-42 (11th Cir. 2011).
“To establish causation, the
plaintiff must show that the defendant was ‘subjectively motivated
to discipline’ the plaintiff for exercising his First Amendment
rights.”
Moton, 631 F.3d at 1341 (quoting Smith v. Mosley, 532
F.3d 1270, 1278 (11th Cir. 2008)).
The Complaint includes absolutely no causal connection between
the alleged acts of retaliation and Plaintiff’s success in case
number 2:06-cv-375-FtM-29DNF.
Plaintiff initiated case number
2:06-cv-375 against Defendants from the Collier County Jail and
Secretary of the Florida Department of Corrections based on the
conditions of his confinement under § 1983 and the Americans with
Disabilities
Act.
The
Complaint
fails to allege
any
causal
connection as to why probation officers and a prosecuting attorney
would have any interest in Plaintiff’s prior action.
The Court
finds Plaintiff’s factual allegations in support of his retaliation
claim are fantastic because a review of the Complaint reveals that
Plaintiff’s probation was violated based upon his alleged actions
in consuming drugs, and not for any other reason.
Additionally,
while
“[o]n
its
face,
§
1983
admits
no
immunities,” the Supreme Court has “consistently recognized that
substantive doctrines of privilege and immunity may limit the
-6-
relief available in § 1983 litigation.”
Tower v. Glover, 467 U.S.
914, 920 (1984). Both qualified and absolute immunity defenses bar
certain actions.
absolute
Id.
immunity
In particular, prosecutors are entitled to
from
liability
furtherance of the criminal process.
for
actions
undertaken
in
Imbler v. Pachtman, 424 U.S.
409, 430-31 (1976); Rowe v. City of Fort Lauderdale, 279 F.3d 1271,
1279 (11th Cir. 2001).
The Eleventh Circuit has also recognized
that probation officers are entitled to quasi-judicial immunity in
preparing a presentence investigation report, testifying as a
witness in a grand jury or criminal hearing, or in other acts
intimately associated with the judicial process. Holmes v. Crobsy,
418 F.3d 1256, 1258 (11th Cir. 2005); see also Cleavinger v.
Saxner, 474 U.S. 193, 200-201 (1985)(recognizing several federal
appellate courts have found state probation officers are entitled
to absolute immunity).
Furthermore, “[a] state, state agency, and
a state official sued in his official capacity are not ‘persons’
within the meaning of § 1983.”
Edwards v. Wallace Cmty. Coll., 49
F.3d 1517, 1524 (11th Cir. 1995)(citing Will v. Michigan Dep’t of
State
Police,
491
U.S.
58,
70-71(1989)(recognizing
that
the
Eleventh Amendment precludes suits in federal court against the
State, arms of the State, and even State officials sued in their
official capacities)). Consequently, Plaintiff’s claims against an
attorney
Marcesa
and
the
probation
dismissal.
-7-
officers
are
subject
to
ACCORDINGLY, it is hereby
ORDERED:
1.
The Complaint (Doc. #1) is DISMISSED without prejudice
pursuant to § 1915(e)(2)(B)(i)-(iii).
2.
The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of April, 2013.
SA: alj
Copies: All Parties of Record
-8-
22nd
day
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