Jones v. Lee County Department of Human and Veteran Services
Filing
18
OPINION AND ORDER granting 16 Motion on why the long delay; granting 17 Motion to Intervene to the extent that the Court has reviewed the Amended Complaint. The 14 Amended Complaint is dismissed without prejudice with leave to file a Second Amended Complaint within 30 days. Signed by Judge John E. Steele on 7/16/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONALD JONES,
Plaintiff,
v.
Case No:
2:17-cv-427-FtM-29CM
LEE COUNTY DEPARTMENT OF
HUMAN AND VETERAN SERVICES,
Defendant.
OPINION AND ORDER
This matter comes before the Court on review of plaintiff's
Request on Why the Long Delay (Doc. #16) filed on May 8, 2018, and
plaintiff’s Motion From the Court to Intervene in This Case (Doc.
#17) filed on June 7, 2018.
The motions will be granted to the
extent that the Amended Complaint is now being reviewed.
In the first motion, plaintiff asks why such a long delay
since the February 2, 2018 Order.
In the second motion, plaintiff
asks the Court to remove the undersigned from the case, and to
explain the delay.
The review of the Amended Complaint was delayed
simply because of other more urgent matters that sometimes take
precedence, including criminal matters.
The Court does not find
that a reassignment of the case would benefit plaintiff, and
declines to transfer the case.
The Court will take the opportunity
to review the Amended Complaint.
Under
Rule
1915,
when
a
party
seeks
to
proceed
without
prepayment of costs or the filing fee,
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
determines that-(A) the allegation of poverty is untrue; or
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief
may be granted; or
(iii)
seeks
monetary
relief
against
defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2).
a
“Dismissal under § 1915(e)(2)(B)(ii) is
governed by the same standard as a dismissal under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. [ ] However, pro se
pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.”
Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1253 (11th Cir.),
cert. denied, 138 S. Ct. 557 (2017) (citations omitted).
On February 2, 2018, the Magistrate Judge found that plaintiff
had
demonstrated
“sufficient
economic
eligibility”
to
proceed
without prepayment of the filing fee and costs, but denied the
motion because plaintiff had failed to file an amended complaint
pursuant to instructions provided in a prior order.
- 2 -
(Doc. #12.)
In the previous Order (Doc. #8), the Magistrate Judge reviewed the
original Complaint and found no plausible legal claims for relief
stated, and no articulated basis for subject-matter jurisdiction.
The Magistrate Judge provided plaintiff an opportunity to amend in
light of his pro se status, consistent with provided directives,
and noted that the “[f]ailure to follow the Court’s directives may
lead to the Court recommending that this case be dismissed.”
(Doc.
#8, p. 10.)
On February 16, 2018, plaintiff filed a one-page Amended
Complaint (Doc. #14) against the Lee County Department of Human
and Veteran Services, which states in its entirety:
(1)I file application at the lee county
department of human and veteran Services for
assistance they was rule and offensive and
wanted me to Go somewhere else to another
program I spoke to the director. At the Next
meeting 11 repairs was remove. I be leave this
was retaliation for calling the commissioner
office.
(2) Lee county hire contractors to depreciate
my home by damaging my ceilings and trimming.
I believe that these malicious acts was in
violation of my constutional [sic] right, age
discrimination and my race as afo-american.
WHEREFORE, Plaintiff prays that this United
State District Court,
(A} Grant the plaintiff
monetary award.
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a
jury
trial
and
(Doc. #14.)
The Court notes that the Amended Complaint adds
numbered paragraphs in an attempt to comply with Rule 10 of the
Federal Rules of Civil Procedure, however the Amended Complaint
still fails to comply with Rule 8 because a short and plain
statement of why plaintiff is entitled to relief is not provided.
First, plaintiff did not incorporate the factual statements from
page 3 and 4 of the original complaint so the Court cannot
determine the factual basis for why plaintiff is entitled to
relief.
Second, he did not include a copy of the Charge of
Discrimination attached to the original complaint, or a Right to
Sue letter, if one was issued, and the Amended Complaint is now
the operative pleading and should incorporate everything.
“An
amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of
the pleader's averments against his adversary.”
Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006) (citation omitted).
The Amended Complaint loosely references “discrimination” and
the Constitution, but fails to state a claim under any specific
law or constitutional provision to support a private cause of
action.
The Civil Cover Sheet checked off “federal question” for
the jurisdictional basis, and marked Americans with Disabilities
Act and “Other labor Litigation” as bases for his cause of action
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for “discrimination” under the Civil Rights Act of 1964, but
plaintiff does not indicate that he has a disability that was the
basis
of
discrimination.
(Doc.
#1-1.)
Without
additional
information, the Court cannot establish its jurisdiction to hear
the case, and it cannot determine a plausible claim.
The Court will provide plaintiff one last opportunity to amend
and state a claim.
For additional resources and assistance,
plaintiff may wish to consult the “Proceeding Without a Lawyer”
resources on filing a pro se complaint on the Court’s website,
http://www.flmd.uscourts.gov/pro_se/default.htm. 1
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Request on Why the Long Delay (Doc. #16) is
GRANTED to the extent that the court addressed the motion.
2. Plaintiff’s Motion From the Court to Intervene in This Case
(Doc. #17) is GRANTED to the extent that the Court has
reviewed the Amended Complaint.
3. The Amended Complaint is dismissed without prejudice with
leave to file a Second Amended Complaint within THIRTY (30)
DAYS of this Order.
If the Second Amended Complaint fails
1
The website has tips, answers to frequently-asked questions,
and sample forms. There is also a link that may help plaintiff
generate the second amended complaint.
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to articulate a basis for jurisdiction, or if no Second
Amended Complaint is filed, the case will be closed without
further notice.
DONE and ORDERED at Fort Myers, Florida, this
of July, 2018.
Copies:
Plaintiff
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16th
day
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