Secret et al v. Roe et al

Filing 14

ORDER: The Report and Recommendation (Doc. # 7 ) is ACCEPTED and ADOPTED. Plaintiff's construed motion for leave to proceed in forma pauperis (Doc. # 2 ) is DENIED WITHOUT PREJUDICE. The Complaint does not state a cognizable claim upon w hich relief may be granted and is therefore DISMISSED WITHOUT PREJUDICE. Plaintiff is authorized to file an Amended Complaint by SEPTEMBER 12, 2017, failing which, the case will be dismissed and closed. Plaintiff is granted permission to file, by SE PTEMBER 12, 2017, a Financial Affidavit fully setting forth her income and liabilities if she seeks to proceed in forma pauperis. Plaintiff also has the option of paying the full filing fee of $400.00 by SEPTEMBER 12, 2017. Signed by Judge Virginia M. Hernandez Covington on 8/29/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JEANETTE BRAXTON SECRET, ET AL.,
Plaintiffs,
v.

Case No. 8:17-cv-1830-T-33TBM

PHIL ROE, MD, ET AL.,
Defendants.
_______________________________/
ORDER
This matter is before the Court on consideration of
United States Magistrate Judge Thomas B. McCoun III’s Report
and Recommendation (Doc. # 7), filed on August 11, 2017,
recommending that pro se Plaintiff Jeanette Braxton Secret’s
construed motion to proceed in forma pauperis be denied
without prejudice.

As of this date, there are no objections

to the Report and Recommendation, and the time for the parties
to file such objections has elapsed.
I.

Background
Pro

se

Plaintiffs

Jeanette

Braxton

Secret,

Carmen

Braxton, Jeanette Braxton Secret Family Trust, and Andrew K.
Jones Family Trust initiated this action on July 31, 2017,
naming the following Defendants: (1) Phil Roe, MD, Chairman,
House Committee on Veterans’ Affairs; (2) Johnny Isakson,

Majority

Senate

Committee

on

Veterans’

Affairs;

(3)

Jon

Tester, Minority Senate Committee on Veterans’ Affairs; (4)
David J. Shulkin, Secretary of Veterans Affairs; (5) Catherine
Mitrano, District Chief Counsel; (6) Kathy Simpson, Deputy
Chief Counsel; (7) E. Douglas Bradshaw, Chief Counsel, Torts
Law Group; (8) Dr. Abu T. Siddigui, MD, Staff Physician and
Attending Physician; (9) Dr. Abelardo Augustines, Primary Care
Doctor; (10) Anuja Pradhan, MD, Hematology/Oncology; (11)
Sonia A Cotton, Radiology Nurse; (12) Mr. Robinson Ang,
Physical Therapist; (13) David M. Crowder, RN; (14) Lawrence
Matthews, 5B Nurses Station; (15) Dr. McDonald, MD, Lung
Doctor; (16) Mr. Ariel Rodriguez, Chief, Patient Advocate;
(17) Ronald Gathright, Patient Advocate; (18) Terrence Watts,
5th District- Orlando VAMCA; and (19) Tatishka Musgrove, VAMC,
Bay Pines Pines VAHCS.
The pro se Complaint provides an account of the death of
Andrew Kirk Jones, a 79-year old veteran, at the Bay Pines VA
Hospital, located in Hillsborough County, Florida. Plaintiffs
label the Complaint as a “Complaint for a Civil Case Alleging
Negligence” and array a host of claims, including but not
limited to, medical malpractice and wrongful death.
Plaintiffs accompanied the Complaint with an Application
to Proceed in forma pauperis. (Doc. # 2).
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The Magistrate

Judge examined the Complaint and the Application to proceed in
forma pauperis and filed a Report and Recommendation on August
11, 2017, recommending denial of the Application for in forma
pauperis status without prejudice. (Doc. # 7). The Magistrate
Judge also recommended dismissal of the Complaint with the
opportunity to file an Amended Complaint within 20 days. (Id.)
The Magistrate Judge recommended that the Court “grant Ms.
Braxton Secret permission to file a Financial Affidavit fully
setting forth her income and liabilities and an Amended
Complaint,

which

clearly

sets

forth

a

cause

of

action

consistent with the pleading requirements of the Federal Rules
of Civil Procedure and which clearly states the basis of the
Court’s jurisdiction.” (Id. at 10).
Although Plaintiff Braxton Secret filed various documents
after the Report and Recommendation was issued, she did not
file an objection to the Report and Recommendation. She filed
a document purporting to be an Amended Complaint (Doc. # 10),
but it is actually 19 separate documents, each one page in
length.

The document, even when construed broadly, does not

meet the requirements for a Complaint under the Federal Rules
of Civil Procedure, and it appears to be the same Complaint
that

she

initially

filed,

handwritten notes. (Id.).

with

the

inclusion

of

some

She also filed a Motion requesting
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referral to arbitration.

(Doc. # 12). In that Motion, she

suggested that she may be inclined to pay the $400 filing fee
for civil cases. (Id.).

The Court denied the Motion for

referral to arbitration, explaining that it was prematurely
asserted. (Doc. # 13).
II.

Analysis of Report and Recommendation
After conducting a careful and complete review of the

findings and recommendations, a district judge may accept,
reject

or

modify

the

magistrate

judge’s

report

and

recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright,
681 F.2d 732 (11th Cir. 1982).

In the absence of specific

objections, there is no requirement that a district judge
review factual findings de novo, Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993), and the court may accept,
reject or modify, in whole or in part, the findings and
recommendations.

28 U.S.C. § 636(b)(1)(C).

The district

judge reviews legal conclusions de novo, even in the absence
of an objection.

See Cooper-Houston v. S. Ry. Co., 37 F.3d

603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F.
Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th
Cir. 1994).
After conducting a careful and complete review of the
findings, conclusions and recommendations, and giving de novo
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review to matters of law, the Court accepts the factual
findings and legal conclusions of the Magistrate Judge and the
recommendation of the Magistrate Judge.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

The Report and Recommendation (Doc. # 7) is ACCEPTED and
ADOPTED.

(2)

Plaintiff’s construed motion for leave to proceed in
forma pauperis (Doc. # 2) is DENIED WITHOUT PREJUDICE.

(3)

The Complaint does not state a cognizable claim upon
which relief may be granted and is therefore DISMISSED
WITHOUT PREJUDICE.

Plaintiff is authorized to file an

Amended Complaint by SEPTEMBER 12, 2017, failing which,
the case will be dismissed and closed.
(4)

Plaintiff is granted permission to file, by SEPTEMBER 12,
2017, a Financial Affidavit fully setting forth her
income and liabilities if she seeks to proceed in forma
pauperis.

Plaintiff also has the option of paying the

full filing fee of $400.00 by SEPTEMBER 12, 2017.
DONE and ORDERED in Chambers in Tampa, Florida, this 29th
day of August, 2017.

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