Macleod v. Scott et al
Filing
17
ORDER denying 12 Motion for Leave to File; terminating 15 Motion for miscellaneous relief. Signed by Magistrate Judge Monte C. Richardson on 10/27/2014. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT CRAIG MACLEOD,
Plaintiff,
v.
CASE NO. 3:14-cv-793-J-39MCR
GOVERNOR RICK SCOTT and
ATTORNEY GENERAL PAM BONDI,
STATE OF FLORIDA CHIEF LEGAL
OFFICER,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion for Leave to File
Verified Complaint Amendment 1 (“Motion to Amend”) (Doc. 12) and Plaintiff’s
Demand for Service of Summons, Electronic Filing, Counsel, etc. (“Motion for
Miscellaneous Relief”) (Doc. 15). For the reasons stated herein, the Motion to
Amend is due to be DENIED, and the Motion for Miscellaneous Relief is due to
be TERMINATED.
I.
Background
On July 7, 2014, pro se Plaintiff filed a Verified Complaint (“Complaint”) in
this Court against Governor Rick Scott and Attorney General Pam Bondi in order
to compel Defendants to enforce Plaintiff’s right to a trial by jury in the state court
proceedings to which Plaintiff was a party. (Doc. 1.) On the same day, Plaintiff
filed an Affidavit of Indigency (Doc. 2), which this Court construed as a Motion for
Leave to Proceed in District Court Without Prepaying Fees or Costs; a Motion for
Leave to File Electronically (Doc. 4); a Motion for Appointment of Counsel (Doc.
5); and a Notice Withholding Consent to a Magistrate Judge (Doc. 6).
On September 17, 2014, the undersigned entered a Report and
Recommendation recommending that Plaintiff’s case be dismissed without
prejudice for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(h)(3), and
that Plaintiff’s motions, filed on July 7, 2014, be denied. (Doc. 9.) The Report
and Recommendation, which remains pending before the Court, provides in
relevant part:
By filing the present federal lawsuit (and a number of similar lawsuits
against the same Defendants in this Court), Plaintiff attempts to
compel the Governor and the Attorney General of the State of
Florida to enforce his right to a trial by jury pursuant to 42 U.S.C. §
1983. However, . . . this Court has no jurisdiction to interfere with
[P]laintiff’s pending state court proceeding . . . . Plaintiff’s attempt to
create a federal cause of action by invoking the United States
Constitution’s Seventh Amendment right to trial by jury is unavailing
as the Seventh Amendment governs proceedings in federal court,
not state court, and plaintiff’s right to a trial by jury under Florida law
is a matter for him to pursue in state court, not here.
(Id. at 3.)
On October 15, 2014, Plaintiff filed the Motion to Amend seeking leave to
file an amended complaint, which is attached to the Motion. (Doc. 12.) On
October 17, 2014, Plaintiff filed the Motion for Miscellaneous Relief requesting
that his Motion for Leave to Proceed in District Court Without Prepaying Fees or
Costs be granted immediately, his summonses be served immediately, his Motion
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for Leave to File Electronically be granted immediately, the persons identified in
his Certificate of Interested Persons be removed from the case immediately, his
Motion for Appointment of Counsel be granted immediately, and his Notice
Withholding Consent to a Magistrate Judge be complied with immediately. (Doc.
15.)
II.
Motion to Amend
A.
Standard for Amendment of Pleadings
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he
court should freely give leave [to amend pleadings] when justice so requires.”
The Supreme Court has stated that “this mandate is to be heeded.” Foman v.
Davis, 371 U.S. 178, 182 (1962). The Supreme Court further stated:
In the absence of any apparent or declared reason-such as undue
delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.-the leave sought should, as
the rules require, be “freely given.” Of course, the grant or denial of
an opportunity to amend is within the discretion of the District Court,
but outright refusal to grant the leave without any justifying reason
appearing for the denial is not an exercise of discretion; it is merely
abuse of that discretion and inconsistent with the spirit of the Federal
Rules.
Id.
B.
Analysis
Plaintiff seeks leave to amend his Complaint because this Court has
allegedly “hyperbolically misconstrued” the Complaint. (Doc. 12 at 1.) Plaintiff
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argues that he did not have an adequate opportunity to file constitutional
challenges in the state court forum both during or after the state court
proceedings, and, therefore, abstention under either Younger or Rooker-Feldman
is inappropriate. (Id. at 2.)
Plaintiff’s proposed amended complaint alleges as follows. In 2010, a
lawsuit for breach of contract and unjust enrichment was filed by Bank of
America, N.A. against Plaintiff in state court. (Doc. 12-1 at 3.) That same year,
Plaintiff filed a compulsory counterclaim alleging fraudulent inducement, unjust
enrichment, invasion of privacy, etc. (Id.) In February 2012, Plaintiff requested a
jury trial on his counterclaim, apparently pursuant to the Seventh Amendment to
the United States Constitution. (Id.) On May 10, 2013, Plaintiff allegedly
attempted to file a § 1983 action, but, on May 13, 2013, Defendants declined to
give him an adequate opportunity to do so because the state court entered an
order declaring Plaintiff a vexatious litigant pursuant to Fla. Stat. § 68.093,
dismissing his claims and counterclaims, and restricting his ability to file pro se
pleadings in state court, thereby violating his due process rights.1 (Id.; see also
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Plaintiff filed a copy of the May 13, 2013 order, which declared Plaintiff to be a
vexatious litigant pursuant to Fla. Stat. § 68.093; directed the Clerks of the Courts in
Flagler County, Putnam County, St. Johns County, and Volusia County to refuse to
accept Plaintiff’s pro se filings; dismissed Plaintiff’s pending cases; and barred Plaintiff
from filing further pleadings unless he paid the filing fee, appeared through counsel,
and furnished security in the amount of $1,500. (Doc. 14-3 at 2-9.) The Court takes
judicial notice of the order. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1277-78
(11th Cir. 1990).
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Doc. 14 at 2; Doc. 14-2 at 2; Doc. 14-3 at 2-9.) Further, on June 5, 2013, the
Flagler County Clerk refused to accept Plaintiff’s § 1983 claim pursuant to the
May 13, 2013 order. (Doc. 12-1 at 3.) Plaintiff alleges he did not have an
“adequate opportunity to file constitutional challenges in the state court forum”
either during the state court proceedings or following their dismissal. (Id.) In the
proposed amended complaint as in the original Complaint, Plaintiff requests “a
real opportunity to be fairly and meaningfully heard with examination of evidence
before a neutral tribunal with a jury to protect his property.” (Id. at 5.)
A liberal construction of the proposed amended complaint indicates that
Plaintiff is requesting the same relief as in the original Complaint, namely a jury
trial, which, as already explained to Plaintiff, is unavailable and should be
pursued in state court, not here. (See Doc. 9.) In an attempt to show that this
Court has jurisdiction over this case and that abstention under either Younger or
Rooker-Feldman is inappropriate, Plaintiff now alleges that he did not have an
“adequate opportunity to file constitutional challenges in the state court forum”
either during the state court proceedings or following their dismissal in light of the
state court’s May 13, 2013 order declaring Plaintiff a vexatious litigant. (Doc. 121 at 3.) Although the state court order dismissed Plaintiff’s pending claims and/or
counterclaims, and restricted Plaintiff’s ability to file pro se pleadings in certain
state courts, it did not preclude Plaintiff from asserting constitutional challenges in
the subject state courts, as long as he complied with the conditions set forth in
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the order. See Lewis v. N. Am. Specialty Ins. Co., 2009 WL 950451, *3 (S.D.
Ohio Apr. 1, 2009) (“Although Plaintiffs assert that, as declared vexatious
litigators, they must undergo a screening process in state court before they can
file in the probate case, even this additional hurdle still permits them to raise
worthy legal challenges.”); Freeman v. Texas, 2008 WL 4155346, *4 n.9 (S.D.
Tex. Sept. 2, 2008) (determining that plaintiff had an adequate opportunity to
raise claims in state court despite the court’s order finding plaintiff to be a
vexatious litigant, which intended to pre-screen plaintiff’s filings for frivolousness,
and noting that plaintiff also had the option to hire an attorney).
Further, to the extent Plaintiff alleges that the vexatious litigant order was
entered in error, this Court has no jurisdiction to review that order, which has
already been explained to Plaintiff on several occasions. See, e.g., Macleod v.
Scott, Case No. 3:14-cv-823-J-32JRK, at 3 (M.D. Fla. Sept. 26, 2014) (“As
previously explained to Macleod in a number of Orders, the Court has no
jurisdiction to interfere with his state court proceedings whether pending or closed
under the Younger and/or Rooker-Feldman abstention doctrines.”); Macleod v.
Bondi, 2013 WL 4494994, *1 n.1 (M.D. Fla. Aug. 20, 2013) (“Neither federal
district courts nor federal courts of appeals may usurp the authority and function
of the Supreme Court and state appellate courts to review state court
proceedings.”). See also Hupp v. Cnty. of San Diego, 2014 WL 2892287, *4
(S.D. Cal. June 25, 2014) (finding that under Rooker-Feldman, the federal district
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court cannot review plaintiff’s challenge of a vexatious litigant order entered by
the state court); Sconiers v. Smith, 2010 WL 2773306, *4 (E.D. Cal. July 13,
2010) (“Review of procedural matters, such as the state court’s determinations of
Plaintiff’s status as a vexatious litigant, . . . must be addressed by California’s
appellate courts. Ultimately, appellate jurisdiction of state court judgments rests
in the United States Supreme Court, not in the federal district court.”) (citing 28
U.S.C. § 1257); Drake v. St. Paul Travelers Ins., 2009 WL 815999, *1 (E.D. Tex.
Mar. 26, 2009) (“[N]o Federal District Court has the power to alter [a vexatious
litigant] order entered by a . . . state court.”).
As stated recently by the Eleventh Circuit, a pro se litigant’s “assertion that,
without recourse to federal courts, he would be deprived of a venue in which to
air his constitutional grievances misunderstands the nature of our dual system of
courts.” Manning v. Harper, 460 F. App’x 872, 875 (11th Cir. Mar. 9, 2012) (per
curiam). Because no matter how liberally the Court construes the proposed
amended complaint, the Court would still lack subject matter jurisdiction over this
case, the undersigned concludes that allowing Plaintiff to amend the Complaint
would be futile. Therefore, the Motion to Amend is due to be denied.
III.
Motion for Miscellaneous Relief
In the Motion for Miscellaneous Relief, Plaintiff requests that his Motion for
Leave to Proceed in District Court Without Prepaying Fees or Costs be granted
immediately, his summonses be served immediately, his Motion for Leave to File
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Electronically be granted immediately, the persons identified in his Certificate of
Interested Persons be removed from the case immediately, his Motion for
Appointment of Counsel be granted immediately, and his Notice Withholding
Consent to a Magistrate Judge be complied with immediately. However, given
that the Motion to Amend is due to be denied and the undersigned has already
recommended that this case be dismissed without prejudice and Plaintiff’s
remaining motions, which are the subject of the Motion for Miscellaneous Relief,
be denied, the Motion for Miscellaneous Relief is due to be terminated.
Accordingly, it is ORDERED:
1.
The Motion to Amend (Doc. 12) is DENIED.
2.
The Motion for Miscellaneous Relief (Doc. 15) is TERMINATED.
DONE AND ORDERED at Jacksonville, Florida, on October 27, 2014.
Copies to:
Pro Se Party
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