Adkins v. Department of Homeland Security, Immigration and Customs Enforcement Agency
Filing
28
OPINION AND ORDER granting in part and deferring in part 24 plaintiff's Motion to Proceed In Forma Pauperis; adopting in part, rejecting in part, and deferring in part 27 Report and Recommendations. The Clerk shall immediately transfer the case to the Southern District of Georgia for all further proceedings. The Clerk is directed to terminate all deadlines and motions in the Fort Myers case and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 12/29/2016. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GEORGE WAYNE ADKINS,
Plaintiff,
v.
Case No: 2:15-cv-456-FtM-29CM
DEPARTMENT
HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS
ENFORCEMENT
AGENCY,
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #27), filed
November
28,
2016,
recommending
that
Plaintiff’s
Motion
to
Proceed In Forma Pauperis Pursuant to 28 U.S.C. § 1915 be denied
and the action dismissed with prejudice.
No objections have been
filed and the time to do so has expired.
I.
After
conducting
a
careful
findings
and
recommendations,
reject,
or
modify
recommendation.
the
a
and
complete
district
magistrate
28 U.S.C. § 636(b)(1);
review
judge
judge’s
may
of
the
accept,
report
and
Williams v. Wainwright,
681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
In the absence of specific objections, there is no requirement
that a district judge review factual findings de novo, Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may
accept, reject, or modify, in whole or in part, the findings and
recommendations.
28 U.S.C. § 636(b)(1)(C).
The district judge
reviews legal conclusions de novo, even in the absence of an
objection.
See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604
(11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428,
1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th Cir. 1994)
(Table).
A. Indigency
The Magistrate Judge found that plaintiff had once again
failed to provide information to support his Motion to Proceed
In Forma Pauperis Pursuant to 28 U.S.C. § 1915.
Specifically,
the
Magistrate
Judge
found
(Doc. #27.)
that
“although
Plaintiff’s unverified motion references an ‘attached affidavit,’
it
contains
Plaintiff’s
no
such
expenses,
document
assets,
or
or
any
information
liabilities,
regarding
except
for
a
statement that ‘The nature of the action is: Unemployed,’ and
Plaintiff ‘believe[s he is] entitled to redress.’” (Id. at 3)
(alteration in original).
On July 29, 2015, along with the initial filing of the
underlying Complaint, plaintiff filed a Motion to Proceed In
Forma Pauperis (Doc. #2) and an Application to Proceed in District
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Court Without Prepaying Fees or Costs (Doc. #3).
On September
4, 2015, the Magistrate Judge entered an Order on plaintiff’s
July 29th Motion to Proceed In Forma Pauperis, finding that
plaintiff “appears to qualify to proceed without the prepayment
of costs in this matter.”
(Doc. #11, p. 2.)
Specifically, the
Magistrate Judge pointed out that:
Plaintiff states that he is unemployed and receives
$1,500.00 monthly in VA disability.
Plaintiff also
states that he supports two dependent children.
As
assets and liabilities, Plaintiff states that he owns
three cars, worth a combined $4,000.00.
Plaintiff
reports rent, child support and other obligations
totaling $1,735.00.
Thus, Plaintiff appears to meet
the indigency requirements of 28 U.S.C. § 1915.
(Id.)
(internal
citations
omitted).
The
Magistrate
Judge,
however, denied plaintiff’s September 4, 2015 motion due to the
insufficiency of the complaint.
(See Doc. #11.)
The Court finds that while plaintiff did not provide the
“additional
documents”
specifying
his
expenses,
assets,
or
liabilities in conjunction with his March 29, 2016 Motion to
Proceed In Forma Pauperis, plaintiff had previously filed these
documents with the Court on July 29, 2015.
The Court finds it
too severe a sanction to deny a finding of indigency solely
because plaintiff did not re-file supporting documents when he
had previously filed them with the Court.
Accordingly, the Court
rejects the portion of the Report and Recommendation regarding
indigency and finds that plaintiff adequately established his
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indigency when examining his motion (Doc. #24) in conjunction
with his previously filed supporting documents (Doc. #3).
B. Venue
The Magistrate Judge also found that the operative pleading
failed to establish that venue was proper in this Court.
at 8-9.)
(Id.
The Magistrate Judge cited to 28 U.S.C. § 1391(b) as
the applicable venue provision.
(Id.)
The Court accepts the Magistrate Judge’s finding that venue
is improper in this Court.
The Court notes, however, that
because plaintiff is asserting a claim under Title VII, the
applicable venue provision is 42 U.S.C. § 2000e-5(f)(3). 1
Pinson
v. Rumsfeld, 192 F. App’x 811, 817 (11th Cir. 2006) (citation
omitted) (“The venue provisions of § 2000e-5(f)(3) were intended
to be the exclusive venue provisions for Title VII employment
discrimination actions and that the more general provisions of §
1391 are not controlling in such cases.”).
Section 2000e-5(f)(3)
provides:
Each United States district court and each United
States court of a place subject to the jurisdiction of
the United States shall have jurisdiction of actions
brought under this subchapter. Such an action may be
brought in any judicial district in the State in which
the unlawful employment practice is alleged to have
1
Were this case a non-Title VII case, the applicable venue
provision would be 28 U.S.C. § 1391(e) because the Department of
Homeland Security, Immigration, and Customs Enforcement Agency
is an agency of the United States.
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been committed, in the judicial district in which the
employment records relevant to such practice are
maintained and administered, or in the judicial
district in which the aggrieved person would have
worked but for the alleged unlawful employment
practice, but if the respondent is not found within any
such district, such an action may be brought within the
judicial district in which the respondent has his
principal office. For purposes of sections 1404 and
1406 of Title 28, the judicial district in which the
respondent has his principal office shall in all cases
be considered a district in which the action might have
been brought.
42 U.S.C. § 2000e-5(f)(3).
Plaintiff’s Second Amended Complaint fails to allege that
the unlawful employment practices occurred in the Middle District
of Florida, that plaintiff’s employment records are located in
the Middle District of Florida, or that plaintiff would have
worked in the Middle District of Florida but for the alleged
unlawful employment practices.
(See Doc. #22.)
Accordingly,
plaintiff’s Second Amended Complaint fails to allege that venue
is proper in the Middle District of Florida.
When venue is improper, a court shall “dismiss, or in the
interest of justice, transfer such case to any district or
division in which it could have been brought.”
1406(a).
28 U.S.C. §
Plaintiff’s Second Amended Complaint alleges that the
events giving rise to his claims took place at FLETC in Glynco,
Georgia.
(Doc. #22, p. 3.)
Because Glynco, Georgia is where
the alleged unlawful employment practices occurred, the Southern
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District of Georgia is a district wherein the case could have
been brought.
Were the Court to dismiss this action, it is
likely that plaintiff would be barred from re-filing due to
statute of limitations restrictions.
#21-1, p. 2.)
(See Doc. #14-1, p. 3; Doc.
Accordingly, in the interest of justice, the Court
transfers this matter to the Southern District of Georgia.
C. Sufficiency of Complaint
The Magistrate Judge found that plaintiff’s Second Amended
Complaint, like his previous pleadings, is a shotgun pleading and
fails to state a claim upon which relief can be granted.
#27, pp. 3-8.)
(Doc.
The Magistrate Judge found that while plaintiff
appears to assert a claim for racial discrimination under Title
VII of the Civil Rights Act, he fails to plead the elements of
such a claim or present facts to support various other claims
mentioned within his Second Amended Complaint.
(Id.)
The
Magistrate Judge recommended dismissal with prejudice because the
“Court
noted
these
deficiencies
in
its
previous
Orders
and
offered Plaintiff two opportunities to amend his complaint and
cure these deficiencies.”
(Id. at 7-8.)
In light of the transfer of venue, the Court declines the
Magistrate
Judge’s
Report
and
sufficiency of the complaint.
Recommendation
regarding
the
The issue may, of course, be
revisited by the transferee district.
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D.
After conducting an independent examination of the file and
upon due consideration of the Report and Recommendation, the
Court accepts in part, rejects in part, and defers ruling in part
the
Magistrate
Judge’s
findings.
The
Court
rejects
the
Magistrate Judge’s finding that plaintiff had failed to establish
his indigency pursuant to U.S.C. § 1915(a)(1).
The Court accepts
and modifies, as set forth herein, the Magistrate Judge’s finding
that venue is improper in the Middle District of Florida and
orders that this matter be transferred to the Southern District
of Georgia, and defers ruling on the sufficiency of the complaint
to the transferee district.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #27) is hereby
adopted in part, rejected in part, and deferred in part.
2.
Plaintiff's
Motion
to
Proceed
In
Forma
Pauperis
Pursuant to 28 U.S.C. § 1915 (Doc. #24) is granted in part and
deferred in part.
his
indigency
and
The Court finds that plaintiff has established
defers
ruling
on
the
sufficiency
of
the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
3.
The Clerk shall immediately transfer this case to the
Southern District of Georgia for all further proceedings.
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The
Clerk is directed to terminate all deadlines and motions in the
Fort Myers case and close the file.
DONE and ORDERED at Fort Myers, Florida, this __29th___ day
of December, 2016.
Copies:
Hon. Carol Mirando
United States Magistrate Judge
Counsel of Record
Unrepresented parties
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