BROOKS v. GAINESVILLE SALVATION ARMY, et al

Filing 30

REPORT AND RECOMMENDATION re 1 Complaint filed by RUFUS JAMES BROOKS, JR : It is recommended Pltf's 1 Complaint be DISMISSED as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S .C. §1915(e)(2), and that the order adopting this report and recommendation direct the clerk of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii). Signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 4/10/2009. Internal deadline for referral to district judge if objections are not filed earlier: 5/8/2009. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

RUFUS JAMES BROOKS, JR., Plaintiff, vs. SALVATION ARMY, et al, Defendants. / REPORT AND RECOMMENDATION This matter has been pending without review to allow Plaintiff time to resolve payment of his initial partial filing fee. His latest response to the Court's show cause order indicates sufficient effort on his part to obtain payment of this fee, (doc. 29), and the undersigned has now reviewed his complaint pursuant to 28 U.S.C. §1915A. Plaintiff sues the Salvation Army and the City of Gainesville because he was denied a cot by the Salvation Army after a criminal background check run by the Gainesville Police Department showed sex offenses. He claims he was made to leave the shelter in violation of his civil rights causing homelessness for which he seeks $16,000,000.00. A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. CASE NO. 1:07CV42-MP/AK

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Pro se complaints are to be held to a less stringent standard than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, a plaintiff is still required to "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Worst v. Hart, 1995 WL 431357, *2 (N.D. Fla. 1995). It cannot be assumed that a Plaintiff will prove facts which have not been alleged. Quality Foods de Centro America, 711 F.2d at 995, citing Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence, even though the pleading standard for a pro se complaint is quite liberal, "bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993). The Court is required to dismiss a complaint at any time if it is determined to be frivolous. 28 U.S.C. §1915(e)(2)(B)(I). Typically, a court should serve the complaint and have benefit of the defendant's response before making such a determination, but there are compelling reasons for immediately dismissing frivolous suits by prisoners since they unduly burden the courts, obscure meritorious claims, and require innocent parties to expend significant resources in their defense. Williams v. Secretary for the Department of Corrections, 131 Fed. Appx. 682, 686 (11th Cir. 2005). Dismissal prior to service is also appropriate when the Court determines from the face of the complaint

No. 1:07cv42-MP/AK

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that the factual allegations are clearly baseless or that the legal theories are indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Plaintiff has no constitutional right to a cot at the Salvation Army. This claim is frivolous and without legal merit. In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's complaint, doc. 1, be DISMISSED as frivolous and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and recommendation direct the clerk of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). IN CHAMBERS at Gainesville, Florida, this 10th Day of April, 2009.

S/ A Kornblum ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

No. 1:07cv42-MP/AK