Titus v. Miami-Dade County Water & Sewer Department

Filing 5

ORDER DISMISSING CASE. Closing Case. Signed by Judge Darrin P. Gayles (hs01) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-20162-GAYLES
SELWYN DON TITUS,
Plaintiff,
v.
MIAMI DADE COUNTY WATER
AND SEWER,
Defendant.

ORDER DISMISSING CASE
THIS CAUSE comes before the Court on a sua sponte review of the record. Plaintiff
Selwyn Don Titus, appearing pro se, filed this action on January 12, 2017 [ECF No. 1]. He
also filed a Motion for Leave to Proceed In Forma Pauperis the same day [ECF No. 4]. Because
the Plaintiff has moved to proceed in forma pauperis, the screening provisions of the Prison
Litigation Reform Act, 28 U.S.C. § 1915(e), are applicable. Pursuant to that statute, the court is
permitted to dismiss a suit “any time [] 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 against a defendant who is immune from such relief.” Id. § 1915(e)(2).
The standards governing dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)
are the same as those governing dismissals under Federal Rule of Civil Procedure 12(b)(6). Alba
v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). To state a claim for relief, a pleading must
contain “(1) a short and plain statement of the grounds for the court’s jurisdiction . . . ; (2) a short
and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand
for the relief sought.” Fed. R. Civ. P. 8. To survive a motion to dismiss, a claim “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[T]he pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank,
437 F.3d 1118, 1120 (11th Cir. 2006), and the allegations in the complaint are viewed in the light
most favorable to the plaintiff, Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.
1998). In reviewing the Complaint, the Court must apply the “liberal construction to which pro se
pleadings are entitled.” Holsomback v. White, 133 F.3d 1382, 1386 (11th Cir. 1998). However,
liberal construction cannot serve as a substitute to establishing a valid cause of action. See GJR
Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). At bottom, the question
is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient
to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011).
The Court has reviewed Plaintiff’s filings and finds that it does not have jurisdiction
over Plaintiff’s claims. 1
trative Hearings.

Plaintiff is appealing a ruling by the Florida Division of Adminis-

Florida Statute § 120.68(2)(a) provides that “[j]udicial review shall be

sought in the appellate district where the agency maintains its headquarters or where a party
resides or as otherwise provided by law.”

F.S.A. § 120.68(2)(a).

Accordingly, Plaintiff

must file his appeal in the state court of appeals – in this case the Florida Third District Court
of Appeal.

See also Wilhelm v. Florida A&M University College of Law, Case No.

6:07-CV-281ORL19KRS, 2007 WL 1482022 at * 2 (M.D. Fla. Mar. 7, 2007) (holding that
petition for judicial review of agency action must be filed in the state court of appeals).

1
The Court notes that Plaintiff has another action pending in this Court against Defendant based on virtually
identical underlying facts. See Selwyn Don Titus v. Miami-Dade County Water and Sewer, Case No.
16-CV-24000-MGC.

2

Based thereon, it is
ORDERED AND ADJUDGED that this action is DISMISSED pursuant to Section
1915(e)(2)(B)(ii). This action is CLOSED for administrative purposes and all pending motions
are DENIED as MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of January, 2017.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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