Pantelakos Jr. v. Spadafora et al

Filing 82

ORDER adopting 80 Report and Recommendation of the Magistrate Judge. Plaintiff James Peter Pantelakos, Jr.'s Motion for Leave to Proceed In Forma Pauperis 78 is DENIED. Petitioner IS NOT entitled to appeal as a pauper and shall pay the appellate filing fee. Signed by Judge Charlene Edwards Honeywell on 12/19/2012. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES PETER PANTELAKOS JR.,
Plaintiff,
v.

Case No: 6:11-cv-947-Orl-36DAB

MICHAEL SPADAFORA, DANIEL
OGDEN, CANDICE MATTHEWS,
SERGEANT GAMIN, FRANCES
DUFRENSE, BREVARD COUNTY, J.R.
JACK PARKER, BREVARD COUNTY
SHERIFF DEPARTMENT, BRIAN ONEK
and ALL KNOWN AND UNKNOWN
OTHERS,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon the Report and Recommendation filed by
Magistrate Judge David A. Baker on November 26, 2012, finding that pro se Plaintiff James
Peter Pantelakos, Jr.’s (“Plaintiff”) appeal lacks any arguable merit and recommending that his
Motion for Leave to Proceed In Forma Pauperis (Doc. 78) be denied. Doc. 80, p. 6. On
December 11, 2012, Plaintiff filed another Motion for Leave to Proceed In Forma Pauperis that
the Court construes as an Objection to the Report and Recommendation.1 See Doc. 81. As such,
this matter is ripe for review.
I.
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BACKGROUND

Fourteen days following the Magistrate’s decision in the Report and Recommendation, Plaintiff
filed a largely incomprehensible pleading appearing to object to the Magistrate Judge’s
conclusion that his appeal is taken in bad faith. See Doc. 81. As such, the Court construes
Plaintiff’s most recent pleading as an Objection.
1

Plaintiff filed an action for claims arising out of his arrest on June 8, 2007. See Second
Amended Complaint (“SAC”), Doc. 42. Plaintiff alleges that he was charged with multiple
counts of transmitting child pornography within Florida. Id., p. 8. Brevard County records
indicate that Plaintiff was adjudicated guilty on eight counts of transmitting harmful information
to minors and at least one count of using a computer service to solicit, seduce or lure a minor.
Doc. 45, p. 3; Doc. 17-Ex.1.2 Presently, Plaintiff is on supervised release.
On October 5, 2012, this Court granted the Individual Defendants’ Motion to Dismiss
Plaintiff’s SAC (Doc. 45), granted Defendant Brevard County’s Motion to Dismiss Plaintiff’s
SAC (Doc. 59), declined to exercise supplemental jurisdiction over Plaintiff’s state law
malpractice claim, and dismissed Plaintiff’s SAC with prejudice. See Doc. 73, p. 25.
Plaintiff seeks to appeal from the Court’s Order of Dismissal, and moves to pursue his
appeal In Forma Pauperis. See Doc. 78. Magistrate Judge Baker found that in light of the
Court’s conclusions that Plaintiff’s claims were untenable due to lack of subject matter
jurisdiction and/or factual support, Plaintiff’s appeal was not taken in good faith. Doc. 80, pp. 56.
II.

STANDARD
When a party makes a timely and specific objection to a finding of fact in a report and

recommendation, the district court should make a de novo review of the record with respect to
the factual issues. 28 U.S.C. § 636(b)(1); U.S. v. Raddatz, 447 U.S. 667, 674 (1980); Jeffrey S. v.
2

See Brevard County Clerk of Court’s docket report for James Pantelakos, Jr. and the Florida
Department of Corrections offender information, Doc. 17-Ex. 1; see also Kendrick v. Florida,
2010 WL 4680880, *1 (M.D. Fla. 2010) (taking judicial notice of information available on
database maintained by county clerk of court); Rentz v. Peters, 2009 WL 1587147, *3 (M.D. Fla.
2009) (taking judicial notice of the plaintiff’s information on the Florida Department of
Corrections’ website concerning his crimes and sentence).
2

State Board of Education of State of Georgia, 896 F.2d 507, 512 (11th Cir. 1990). Federal Rule
of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may serve and file specific
written objections to the proposed findings and recommendations.” Once a timely objection to
the Report and Recommendation is made, the district judge “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). The district judge may accept, reject, or modify
in whole or in part, the report and recommendation of the magistrate judge. Fed. R. Civ. P.
72(b)(3). The district judge may also receive further evidence or recommit the matter to the
magistrate judge with further instructions. Id. The district judge reviews legal conclusions de
novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry., 37 F.3d 603,
604 (11th Cir. 1994).
III.

ANALYSIS
In the Report and Recommendation, Magistrate Judge Baker reviews the Court’s Order

dismissing Plaintiff’s SAC with prejudice, and concludes that Plaintiff’s appeal was not taken in
good faith and therefore his Motion for Leave to Proceed In Forma Pauperis should be denied.
Doc. 80, pp. 3-6. The Court agrees that Plaintiff’s appeal lacks merit and his Motion should be
denied. See Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (“In deciding whether an IFP
appeal is frivolous, a district court determines whether there is a factual and legal basis, of
constitutional dimension, for the asserted wrong, however inartfully pleaded.”); Bell v. HCR
Manor Care Facility of Winter Park, 2010 WL 4096849, *2 (M.D. Fla. 2010).
Although barely comprehensible, Plaintiff’s Objection appears to repeat his arguments
relating to the impropriety of his 2007 arrest. See Doc. 81, pp. 4-11. As this Court has

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repeatedly explained, to the extent that Plaintiff’s claims cast doubt on the validity of an element
of the offenses for which he has been adjudicated guilty, they are barred by the Heck v.
Humphrey favorable termination requirement.

Heck v. Humphrey, 512 U.S. 477 (1994);

Spellissy v. Pettigrew, 2011 WL 201499, *2 (M.D. Fla. 2001); Vickers v. Donahue, 137 Fed.
Appx. 285 (11th Cir. 2005); see Doc. 15, pp. 2-3; Doc. 73, n.8, n. 12, n.13. Further, Plaintiff’s
claims alleging defamation regarding his conviction for transmission of child pornography were
dismissed because a claim of being defamed by a police officer is not viable under 42 U.S.C. §
1983, and Plaintiff cannot demonstrate falsity, an essential element for establishing defamation.
Doc. 73, pp. 20-21 (citing Walker v. Atlanta Police Dept. Public Affairs Unit, 322 Fed. Appx.
809, 811 (11th Cir. 2009) and Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1114 (Fla. 2008)).
Given Plaintiff has failed to make any persuasive objection to any finding of fact or law
in the Report and Recommendation, his Objection lacks merit. 28 U.S.C. § 636(b)(1); Raddatz,
447 U.S. at 674. Therefore, after careful consideration of the Report and Recommendation of
the Magistrate Judge, in conjunction with an independent examination of the file, the Court is of
the opinion that the Magistrate Judge's Report and Recommendation should be adopted,
confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 80) is adopted,
confirmed, and approved in all respects and is made a part of this order for all purposes,
including appellate review.
2. Any appeal by Petitioner would not be taken in good faith.

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3. Plaintiff James Peter Pantelakos, Jr.’s Motion for Leave to Proceed In Forma Pauperis
(Doc. 78) is DENIED. Petitioner is not entitled to appeal as a pauper and shall pay the
appellate filing fee.
DONE and ORDERED in Orlando, Florida on December 19, 2012.

Copies furnished to:
Counsel of Record
Unrepresented Parties
U.S. Magistrate Judge David A. Baker

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