Shea et al v. Commissioner of Social Security

Filing 7

ORDER denying with leave to reassert 2 Motion for Leave to Proceed in forma pauperis; rejecting 4 Report and Recommendations. The Complaint (Doc. 1) is DISMISSED without prejudice. On or before October 21, 2014, Plaintiff may file an amended complaint and a renewed application to proceed in District Court without prepaying fees or costs. Signed by Judge Roy B. Dalton, Jr. on 9/22/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DONALD RICHARD SHEA; DONALD
FRANK SHEA; and ELENA PECHIN
JOHNSON,
Plaintiff,
v.

Case No. 6:14-cv-1330-Orl-37TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Pro Se Plaintiff Donald Richard Shea’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Doc. 2), filed August 18, 2014;

2.

Report and Recommendation of U.S. Magistrate Judge Thomas B. Smith
(Doc. 4), filed August 20, 2014; and

3.

Answer to the Response to a Report and Recommendation and Motion to
Keep the Complaint in Orlando, Florida Division (Doc. 6), filed
September 2, 2014.

On August 18, 2014, Pro Se Plaintiff Donald Richard Shea filed a hand-written
complaint against Defendant Commissioner of Social Security concerning its denial of
Plaintiff’s claim for benefits. (Doc. 1, pp. 2–3.) Under his signature on his Complaint,
Plaintiff provided a mailing address in Allen, Texas. (Id. at 10.) Plaintiff also filed an
application to proceed in forma pauperis advising that he is homeless, but he has a

monthly income of $741.00. (Doc. 2.) The application was referred to U.S. Magistrate
Judge Thomas B. Smith, who issued a Report and Recommendation on August 20,
2014 (Doc. 4 (“R&R”)). Based on the Texas address listed on the Complaint, the R&R
concludes that proper venue for this action is in the U.S. District Court for the Eastern
District of Texas—not this Court. (Id. at 2.) Accordingly, the R&R recommends that the
Court: (1) deny the application to proceed in forma pauperis; and (2) transfer this action
to the U.S. District Court for the Eastern District of Texas. (Id.) Plaintiff filed objections to
the R&R. (Doc. 6.)
When a party objects, the district court must “make a de novo determination of
those portions” of an R&R to which objection is made. 28 U.S.C. § 636(b)(1). The
district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
Here, Plaintiff filed an objection to the R&R advising that he does not reside at
the Texas address; rather, he is homeless in Orlando. (Doc. 6.) Plaintiff further advised
that he provided his mother’s Texas address on his Complaint simply to ensure that he
received mail; however, he is now using a new mailing address in Winter Park, Florida.
(Id.) In light of these representations, the Court will reject the recommendation in the
R&R that venue is improper and that this action should be transferred to the U.S.
District Court for the Eastern District of Texas.
Upon independent review, the Court finds that Plaintiff’s application to proceed in
forma pauperis is due to be denied with leave to reassert after Plaintiff files an amended
complaint. The hand-written document filed by Plaintiff as his complaint is difficult to
understand and is silent concerning the grounds for venue and jurisdiction. (Doc. 1.)
Further, Plaintiff appears to assert unspecified claims on behalf of his father and

2

mother; however, as a layperson, Plaintiff may only assert claims on his own behalf.
Accordingly, the complaint is due to be dismissed.
The Court will afford Plaintiff with an opportunity to file an amended complaint in
compliance with the requirements of the Federal Rules of Civil Procedure and the Local
Rules of the Court. In particular, Plaintiff should review Federal Rules of Civil Procedure
8(a), 8(d), and 10, and Local Rules 1.05 and 1.06. These rules generally require that a
complaint be comprised of “numbered paragraphs, each limited as far as practicable to
a single set of circumstances,” and include: (1) a “short and plain” statements of his
claim and the grounds for the court’s jurisdiction; (2) a “demand for the relief” sought by
plaintiff; and (3) “simple, concise, and direct” allegations. Plaintiff is further advised that
additional information and resources are available on the Court’s website in a section
entitled, “Proceeding Without a Lawyer.” 1
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Report and Recommendation of U.S. Magistrate Judge Thomas B. Smith
(Doc. 4) is REJECTED.

2.

Pro Se Plaintiff Donald Richard Shea’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Doc. 2) is DENIED with leave to
reassert.

3.

The Complaint (Doc. 1) is DISMISSED without prejudice.

4.

On or before October 21, 2014, Plaintiff may file an amended complaint
and a renewed application to proceed in District Court without prepaying
fees or costs.

1

That website is available at: http://www.flmd.uscourts.gov/pro_se/default.htm.

3

5.

If Plaintiff does not file an amended complaint in the time prescribed, this
action may be dismissed for failure to prosecute.

DONE AND ORDERED in Chambers in Orlando, Florida, on September 22, 2014.

Copies:
Counsel of Record
Pro Se Plaintiff

4