WILLIAMS v. BOARD OF COMMISSIONERS

Filing 7

REPORT AND RECOMMENDATION, It is RECOMMENDED that 1 and 3 Complaint filed by VICKI WILLIAMS, be DISMISSED for failure to state a claim upon which relief may be granted. R&R flag set. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 9/11/09. Internal deadline for referral to district judge if objections are not filed earlier: 10/9/2009. (pll)

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

VICKI WILLIAMS, Plaintiff, vs. BOARD OF COMMISSIONERS, Defendant. / REPORT AND RECOMMENDATION Plaintiff, who is pro se, submitted a civil rights complaint on August 31, 2009. Doc. 1. Plaintiff has also submitted an amended complaint, doc. 3, and statement of facts, docs. 4, 5 and 6. Plaintiff did not pay the filing fee for this case nor did she submit an in forma pauperis motion with the required supporting financial affidavit. Under the local rules of this Court, a civil action "shall not be filed by the clerk until the fee is paid as required by 28 U.S.C. § 1914, unless the complaint . . . is accompanied by a motion for leave to proceed in forma pauperis." N.D. Fla. Loc. R. 5.1(H). Because Plaintiff neither paid the fee nor filed an in forma pauperis motion, this case should be dismissed.1 Plaintiff is well aware of this requirement and has been advised of the necessity to comply with Rule 5.1(H) in numerous prior cases she has filed in this Court. See, e.g., cases 4:09cv84-RH/WCS; 4:08cv225-SPM/WCS; 4:08cv187-SPM/WCS; 4:07cv5271

Case No. 4:09cv339-RH/WCS

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Moreover, federal law permits a United States District Court to dismiss a case filed in forma pauperis, if it is satisfied that the action is frivolous or malicious. The Supreme Court has recognized two types of cases which may be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989). The first class are "claim(s) based on an indisputably meritless legal theory," and the second class contain "claims whose factual contentions are clearly baseless." Id. This case lacks both an arguable basis in law and is clearly removed from reality. Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990), citing Neitzke. Plaintiff's allegations are incomprehensible and fit both classes of cases which may be dismissed sua sponte. Even though Plaintiff has not yet been granted in forma pauperis status, there is no need to delay dismissal of this case only to resolve the issue of the filing fee. Sua sponte dismissal of the complaint is appropriate because it is frivolous and nonsensical. In light of the foregoing, it is respectfully RECOMMENDED that this action be DISMISSED for failure to state a claim upon which relief may be granted. IN CHAMBERS at Tallahassee, Florida, on September 11, 2009.

s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. 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

SPM/WCS; 4:07cv521-SPM/WCS; and 4:07cv510-SPM/WCS.
Case No. 4:09cv339-RH/WCS

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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.

Case No. 4:09cv339-RH/WCS