Harvey, et al. v. Seminole County et al.

Filing 19

ORDER denying 10 Motion for Leave to Proceed in forma pauperis; Denying 12 Motion for leave to proceed in forma pauperis/affidavit of indigency; Adopting Report and Recommendations re 17 Report and Recommendations. The Amended Complaint (Doc. 16) is DISMISSED with prejudice. The Clerk is directed to close this case. Signed by Judge Carlos E. Mendoza on 10/27/2016. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JOSEPH HARVEY and ANJA
KANNELL,
Plaintiffs,
v.

Case No: 6:16-cv-56-Orl-41TBS

STEVEN SOTO and HALL,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiff Joseph Harvey’s Application to Proceed in
District Court Without Prepaying (Doc. 10) and Plaintiff Anja Kannell’s Motion to Proceed In
Forma Pauperis (Doc. 12) (collectively, “Motions to Proceed”). United States Magistrate Judge
Thomas B. Smith submitted a Report and Recommendation (“R&R,” Doc. 17), in which he
recommends that the Motions to Proceed be denied and that Plaintiffs’ Amended Complaint (Doc.
16) be dismissed without leave to amend. Plaintiffs filed a timely Objection (Doc. 18).
After an independent de novo review of the record, the Court agrees entirely with the
findings of fact and conclusions of law in the R&R. Taking all of Plaintiffs’ allegations in the light
most favorable to them, including the additional information provided in their Objection, they have
failed to plead claims for violations of their federal rights. Additionally, to the extent they attempt
to assert state law claims, the Amended Complaint only lists several purported causes of action
but fails to specify any factual predicate showing entitlement to relief for these alleged violations.
Accordingly, Plaintiffs have failed to state a claim for relief and the Amended Complaint is due to
be dismissed.

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Furthermore, it appears that even if Plaintiffs had properly pleaded any claim, their
claims—with the exception of Plaintiff Harvey’s malicious prosecution claim—would be barred
by the applicable statutes of limitations. See Clark v. State of Ga. Pardons & Paroles Bd., 915
F.2d 636, 640 n.2 (11th Cir. 1990) (noting that “[t]he expiration of the statute of limitations is an
affirmative defense the existence of which warrants a dismissal as frivolous,” and holding that
“[w]hen the defense is apparent from the face of the complaint or the court’s records, courts need
not wait and see if the defense will be asserted in a defensive pleading”). Plaintiffs allege claims
arising out of conduct that occurred on June 17, 2009 and June 28, 2009. (Doc. 16 ¶¶ 12–13). The
claims are brought pursuant to 42 U.S.C. § 1983, 18 U.S.C. § 1030, and state law. With respect to
Plaintiffs’ § 1983 claims, the statute of limitations is four years, City of Hialeah v. Rojas, 311 F.3d
1096, 1103 n.2 (11th Cir. 2002) (“Section 1983 claims are governed by the forum state’s residual
personal injury statute of limitations, which in Florida is four years.”); as to their § 1030 claim, the
statute of limitations is two years, 18 U.S.C. § 1030(g); and their purported state law claims are all
subject to the four statute of limitations, Fla. Stat. § 95.11(3). Accordingly, to timely file a claim
under § 1030, Plaintiffs had to file their complaint by June 2011, and for all other causes of action
by June 2013. Plaintiffs filed their Complaint (Doc. 1) on October 26, 2015. Therefore, Plaintiffs’
claims are time-barred.
Finally, to the extent Plaintiff Harvey attempts to assert a malicious prosecution claim for
criminal proceedings allegedly occurring between 2011 and 2013, Plaintiff Harvey cannot state a
claim for malicious prosecution. Plaintiff Harvey alleges that he was maliciously prosecuted for
the crime of fictitious use of identification. “Both termination and a favorable resolution for the
plaintiffs are necessary to prove malicious prosecution.” N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563
(11th Cir. 1990). Thus, even assuming that he had otherwise pleaded such a claim, Plaintiff

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Harvey’s claim cannot succeed because he was found guilty of the crime of fictitious use of
identification in the state court proceedings. 1 See Detailed Information for Case
592010CF005372A, http://www.seminoleclerk.org/CriminalDocket/case_detail.jsp?CaseNo=592
010CF005372A (last visited Oct. 12, 2016). A guilty verdict and resulting conviction is patently
not a favorable resolution, and therefore, Plaintiff Harvey cannot state a claim for malicious
prosecution. For these reasons, Plaintiffs’ claims will be dismissed with prejudice. See Cox v.
Mills, 465 F. App’x 885, 889 (11th Cir. 2012) (holding that “the court need not grant leave [to
amend] . . . where the complaint as amended would still be subject to dismissal”).
In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 17) is ADOPTED and CONFIRMED and
made a part of this Order.
2. Plaintiff Joseph Harvey’s Application to Proceed in District Court Without
Prepaying (Doc. 10) is DENIED.
3. Plaintiff Anja Kannell’s Motion to Proceed In Forma Pauperis (Doc. 12) is
DENIED.
4. The Amended Complaint (Doc. 16) is DISMISSED with prejudice. The Clerk is
directed to close this case.

1

“Courts may take judicial notice of publicly filed documents, such as those in state court
litigation, at the Rule 12(b)(6) stage.” United States ex rel. Osheroff v. Humana Inc., 776 F.3d 805,
812 n.4 (11th Cir. 2015). Accordingly, because the Court applies the same standard in ruling on
motions to proceed in forma pauperis as it applies in addressing motions under Rule 12(b)(6), the
Court may take judicial notice of the state court records pertaining to Plaintiff Harvey’s criminal
proceedings. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (“The standards
governing dismissals under Rule 12(b)(6) apply to § 1915(e)(2)(B)(ii).”); see also Diamond v.
Pitchess, 411 F.2d 565, 566 (9th Cir. 1969) (“In the exercise of its broad discretion to permit or
deny in forma pauperis suits . . . , the District Court may resolve factual issues bearing upon that
decision only if the allegations lack veracity or legal substance either on their face or in the light
of facts properly subject to judicial notice.”).

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DONE and ORDERED in Orlando, Florida on October 27, 2016.

Copies furnished to:
Unrepresented Parties

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