Cherry v. Sheriff, Osceola County et al

Filing 17

ORDER terminating 15 Motion for leave to proceed in forma pauperis/affidavit of indigency; adopting 16 Report and Recommendations. Signed by Judge Roy B. Dalton, Jr. on 12/31/2015. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ANTHONY D. CHERRY,
Plaintiff,
v.

Case No. 6:14-cv-1621-Orl-37TBS

OSCEOLA COUNTY, MITCHEM G.,
Defendant.
ORDER
This cause is before the Court on the following:
1.

Third Amended Complaint (Doc. 14), filed December 5, 2014;

2.

Affidavit of Indigency (Doc. 15), filed December 5, 2014; and

3.

Report and Recommendation of U.S. Magistrate Judge Thomas B. Smith
(Doc. 16), filed December 8, 2014.
BACKGROUND

Anthony D. Cherry is a pro se Plaintiff who has repeatedly claimed that Deputy
“Mitchem G.” of the Osceola County Sheriff’s Office violated his civil rights during his
arrest on February 17, 2014. (See Docs. 1, 11, 14; see also Doc. 13, p. 3 n.1
(summarizing Plaintiff’s prior filings in a related action).) In an Order dated
November 18, 2014, the Court dismissed Plaintiff’s Second Amended Complaint and
denied him leave to proceed in forma pauperis. (Doc. 13.) Noting Plaintiff’s previous
unsuccessful attempts to state a non-frivolous claim, the Court advised Plaintiff that he
would be afforded one final opportunity to plead a viable claim. (Id. at 4.)

On December 5, 2014, Plaintiff filed a “Thrid [sic] Amended Complaint” (Doc. 14)
with a request to proceed in forma pauperis (Doc. 15). On referral, U.S. Magistrate
Judge Thomas B. Smith issued a Report and Recommendation recommending that the
Court deny Plaintiff’s request to proceed in forma pauperis and dismiss his Complaint
with prejudice. (Doc. 16 (“Report”).) The Court mailed a copy of the Report to Plaintiff,
but it was returned as undeliverable. In any case, the time for filing an objection to the
Report has passed. See 28 U.S.C. § 636; Local Rule 6.02.
STANDARDS
“A district court must dismiss an action brought in forma pauperis upon
determining that the action: (1) is frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief.” Bricker v. Cobb Cnty. Gov’t & Pers., 399 F. App’x 463, 463
(11th Cir. 2010); see also 28 U.S.C. § 1915(e)(2); Local Rule 4.07(a). “A claim is
frivolous if it is without arguable merit either in law or fact.” McGuire v. Fla. Lottery,
520 F. App’x 850, 850 (11th Cir. 2013). The district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1).
DISCUSSION
The Report correctly found that the document labeled “Thrid Amended
Complaint” provides no new factual allegations and should be dismissed. (Doc. 16.)
Indeed, despite the Court’s plain warning that dismissal with prejudice would result from
another inadequate filing, Plaintiff’s most recent pleading merely sets forth his points of
disagreement with this Court’s analysis of his Second Amended Complaint.
(See Doc. 14.) The document does not include the minimum requirements to state a

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“claim for relief” under Federal Rule of Civil Procedure 8(a). (See id.) Given Plaintiff’s
repeated assertion of frivolous claims and his submission of evidence and allegations
establishing that arguable probable cause supported his arrest (see Doc. 14-1), the
Court finds that an additional pleading opportunity is not warranted. Rather, the Third
Amended Complaint is due to be dismissed with prejudice.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Report and Recommendation of U.S. Magistrate Judge Thomas B. Smith
(Doc. 16) is ADOPTED and CONFIRMED.

2.

Pro Se Plaintiff Anthony D. Cherry’s Third Amended Complaint (Doc. 14)
is DISMISSED WITH PREJUDICE.

3.

The Clerk is directed to terminate any pending motions and to CLOSE this
case.

DONE AND ORDERED in Chambers in Orlando, Florida, on December 31, 2014.

Copies:
Counsel of Record
Pro Se Plaintiff

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