Levy v. Kahuna Bar & Grill Associates et al

Filing 4

ORDER DISMISSING CASE and denying 3 MOTION for Leave to Proceed in forma pauperis filed by Carol Lynne Eilberg Levy. Signed by Judge James I. Cohn on 4/19/2012. (prd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-60512-CIV-COHN/SELTZER
CAROL LYNNE EILBERG LEVY,
Plaintiff,
v.
KAHUNA BAR & GRILL & ASSOCIATES,
MELISSA LNU (Owner), TODD LNU (Manager),
and AMANDA LNU (Bartender),
Defendants.
______________________________________/
ORDER DISMISSING COMPLAINT
THIS CAUSE is before the Court upon Plaintiff Carol Lynne Eilberg Levy’s pro se
Complaint [DE 1] (“Complaint”) and Application to Proceed Without Prepaying Fees or
Costs [DE 3] (“Application”). The Court has considered the Complaint and the
Application, and is otherwise fully advised in the premises.
The Complaint in this action alleges “terrorism, harassment & genocide of a
race,” and then lists twenty-one names, including some apparent relatives of Plaintiff.
The only other allegation states: “charge is genocide of a race, involuntary deviant
medical procedures, extortion, encroachment, violation of all human rights, e.g. breast
cancer, diabetes, Alzheimers, heart disease, autism, cancer leukemia, mental illness,
et. al.” These are the only statements in the Complaint.
Because Plaintiff has not paid a filing fee, the Court conducts a screening
pursuant to 28 U.S.C. § 1915(e)(2)(B). Section 1915 reads in pertinent part:
Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines
that– . . .

(B) the action or appeal-(i)
is frivolous or malicious;
(ii)
fails to state a claim on which relief may be granted; or
(iii)
seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2).1 Dismissals for failure to state a claim are governed by the
same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997) (“The language of section 1915(e)(2)(B)(ii) tracks the
language of Federal Rule of Civil Procedure 12(b)(6).”). At this stage of litigation, the
allegations of a complaint are taken as true and are construed in the light most
favorable to the plaintiff. Davis v. Monroe Cnty. Bd. of Educ., 120 F.3d 1390, 1393
(11th Cir. 1997).
Pro se complaints are held to “less stringent standards than formal pleadings
drafted by lawyers and can only be dismissed for failure to state a claim if it appears
‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Estelle v. Gamble, 429 U.S. 97, 106 (1979) (quoting Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)). Nevertheless, the Court does not have a
“license to serve as de facto counsel for a party . . . or to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Invs., Inc. v. Cty. of Escambia, Fla., 132
F.3d 1359, 1369 (11th Cir. 1998) (citations omitted).
In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

1

“Section 1915(e) applies to all [in forma pauperis] litigants [including]
prisoners who pay fees on an installment basis, prisoners who pay nothing, and
nonprisoners in both categories.” Mitchell v. Farcass, 112 F.3d 1483, 1491 n.1 (11th
Cir. 1997).
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Civ. P. 8(a)(2). The “complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A plaintiff must “provide the ‘grounds’ of his ‘entitle[ment] to relief’ [which] requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. In this case, Plaintiff has failed to set
forth facts which show that she is entitled to relief. There is no description of the
Defendants’ acts which Plaintiff believes give rise to a recognized cause of action under
federal law. Rather, the Complaint as filed is conclusory and must be dismissed.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Complaint [DE 1] is DISMISSED;

2.

The Application to Proceed Without Prepaying Fees or Costs [DE 3] is
DENIED as moot;

3.

The Clerk of Court is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 19th day of April, 2012.

Copies provided to:
Carol Lynne Eilberg Levy
1698 Blount Road
Pompano Beach, FL 33069

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