Bellamy v. Palack et al

Filing 19

OPINION AND ORDER adopting in part and rejecting in part 15 Report and Recommendations; recommitting 13 Motion to proceed in forma pauperis for a frivolity review under 28 U.S.C. § 1915(e)(2)(B); overruling 18 Objections. Signed by Judge John E. Steele on 2/17/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KENNETH BELLAMY,
Plaintiff,
v.

Case No: 2:15-cv-431-FtM-29CM

FIRST CLASS MANAGEMENT LLC
and TARA P. PALUCK, Judge,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #15), filed
December 31, 2015, recommending that plaintiff's Affidavit of
Indigency (Doc. #13), construed as a motion to proceed in forma
pauperis,

be

denied

and

the

case

dismissed

with

prejudice.

Plaintiff filed Objections to Report and Recommendations (Doc.
#18) on January 22, 2016, asserting that he should be found
indigent, and arguing why he was deprived of due process in state
court.

Plaintiff acknowledges that he filed an appeal in state

court, which is pending.
1. Procedural Background
On

July

17,

2015,

plaintiff

filed

a

one-page,

untitled

complaint (Doc. #1) alleging that defendants acted in collusion to
evict

his

from

his

residence,

and

that

he

was

seeking

the

intervention of the Attorney General and the Court to stop his

eviction.

Plaintiff also sought additional time to develop his

case and pay his rent.

Along with the Complaint, plaintiff filed

a short-form Affidavit of Indigency (Doc. #2) indicating that he
was single, retired, and with an income of $801.00 a month.
Plaintiff also identified an owned vehicle, a rent payment of
$725.00,

and

$110

a

insurance payments.
one-page,

untitled

month

for

pensions,

annuities,

or

life

On July 23, 2015, plaintiff filed another
complaint

(Doc.

duplicate of the original filing.

#4)

that

appears

to

be

a

On July 28, 2015, plaintiff

filed an Emergency Motion (Doc. #8) seeking to enjoin an eviction.
The motion was denied on the same day because the Court lacked
subject-matter jurisdiction to enjoin an eviction pursuant to Writ
of Possession issued by state court.

(Doc. #8.)

On July 30, 2015, the Magistrate Judge denied plaintiff’s
motion for leave to proceed in forma pauperis, construed from the
Affidavit of Indigency, finding plaintiff financially qualified to
proceed

in

forma

pauperis,

but

that

the

complaint

contained

deficiencies in pleading the claim and jurisdiction that needed to
be addressed first.
filed

a

new,

(Doc. #9.)

titled

On August 31, 2015, plaintiff

Complaint

(Doc.

#11)

identifying

a

jurisdictional basis under 42 U.S.C. §§ 1983, 1985, the Fourteenth
Amendment to the U.S. Constitution, and 42 U.S.C. § “200-2” 1, and

1

The Court assumes that plaintiff is attempting to reference
Title VII, 42 U.S.C. § 2000e-2.

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alleging a denial of due process in an eviction case filed against
him in state court.

Plaintiff seeks $5,000 in damages.

Attached

are copies of the underlying documents from the state eviction
proceedings.

Along with the new complaint, plaintiff filed a new

Affidavit of Indigency (Doc. #13) stating that he is single, with
no

dependents,

retired,

and

with

a

total

monthly

income

of

$2,100.00 (social security disability and worker’s compensation
benefits).

Plaintiff further identifies $200 cash in the bank,

and monthly payments of $60 between two credit cards.

Plaintiff

does not identify his current rent, utilities or other expenses.
On December 31, 2015, the Magistrate Judge issued her Report
and Recommendation (Doc. #15) finding plaintiff satisfied the
requirements to proceed in forma pauperis on a “close call”, but
recommending denial of the motion because the case should be
dismissed for failure to cure deficiencies in the new complaint to
allege subject-matter jurisdiction.
2. Standard of Review
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation.

28 U.S.C. §

636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).

A district judge “shall make a de novo determination of

those portions of the report or specified proposed findings or
recommendations

to

which

objection

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is

made.”

28

U.S.C.

§

636(b)(1).

See also United States v. Farias-Gonzalez, 556 F.3d

1181, 1184 n.1 (11th Cir. 2009).

This requires that the district

judge “give fresh consideration to those issues to which specific
objection has been made by a party.”

Jeffrey S. v. State Bd. of

Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)).

The district judge reviews legal

conclusions de novo, even in the absence of an objection.

See

Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
3. Application to this Case
The

Magistrate

Judge

found

that

plaintiff

financially

qualifies to proceed in forma pauperis, but ultimately denied the
motion based on the sufficiency of the new complaint.

The Court

notes that the second Affidavit fails to list plaintiff’s monthly
obligations outside of $60 towards credit card payments, however,
when considered with the first Affidavit that listed rent and other
expenses,

and

because

of

the

temporary

nature

of

worker’s

compensation payments, the Court agrees that plaintiff qualifies
as

indigent.

Therefore,

this

portion

of

the

Report

and

Recommendation will be adopted, and plaintiff’s objections as to
plaintiff’s indigent status will be overruled.
The

Magistrate

Judge

found

that

the

new

complaint

only

provided a “blanket statement” of plaintiff’s claim, and remained
deficient because plaintiff did not sufficiently explain the legal

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basis for his claims.

(Doc. #15, p. 4.)

The Magistrate Judge

also found that plaintiff failed to allege and establish a basis
for the Court’s subject-matter jurisdiction.

The Magistrate Judge

recommended dismissal “[b]ecause Plaintiff failed to establish an
independent

basis

of

jurisdiction.”

(Id.,

p.

5.)

The

recommendation is a dismissal with prejudice.
“[T]he court dismissed with prejudice, which is fitting for
failure to state a claim, instead of without prejudice, which is
appropriate

for

jurisdictional

decisions.”

Campbell

v.

Air

Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir.), cert. denied, 135
S.

Ct.

759

(2014).

“Dismissal

for

lack

of

subject-matter

jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is so insubstantial, implausible,
foreclosed

by

completely

devoid

controversy.”

prior
of

decisions
merit

of

as

this
not

to

Court,

or

involve

otherwise
a

federal

Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. County of
Oneida, 414 U.S. 661, 666 (1974)).
Liberally construed in light of plaintiff’s pro se status,
see Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se complaints
held to a less stringent standard than formal pleadings drafted by
counsel), plaintiff asserts an equal protection violation and/or
race discrimination in his eviction case that caused a violation
of his due process under 42 U.S.C. §§ 1983, 1985, Title VII, and

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the

Fourteenth

Amendment

of

the

U.S.

Constitution.

“Before

deciding that there is no jurisdiction, the district court must
look to the way the complaint is drawn to see if it is drawn so as
to claim a right to recover under the Constitution and laws of the
United States.”
Court

finds

that

Bell v. Hood, 327 U.S. 678, 681 (1946).
plaintiff’s

statement

of

jurisdiction

The
under

federal statutes and the United States Constitution is sufficient
to allege jurisdiction under 28 U.S.C. § 1331 (“The district courts
shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”).

Even

if the Court agreed that the basis for jurisdiction is inadequately
pled,

dismissal

with

prejudice

is

not

appropriate

because

plaintiff could always present his case in another forum.
As the recommendation for dismissal was premised on the lack
of subject-matter jurisdiction, rather than the inability to state
a claim, the new complaint will be recommitted to the magistrate
judge for a full review under 28 U.S.C. § 1915(e)(2)(B).
Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #15) is adopted in

part and rejected in part.
2.

Plaintiff’s Affidavit of Indigency (Doc. #13), construed

as a motion to proceed in forma pauperis, is recommitted to

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the Magistrate Judge for a frivolity review under 28 U.S.C.
§ 1915(e)(2)(B) under the parameters outlined above.
3.

Plaintiff's Objections to Report and Recommendations

(Doc. #18) are overruled.
DONE and ORDERED at Fort Myers, Florida, this
of February, 2016.

Copies:
Hon. Carol Mirando
All Parties of Record

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17th

day