Flowers v. South Beach Singles

Filing 4

ORDER DISMISSING CASE WITHOUT PREJUDICE. Plaintiff's Motion, ECF No. #3 , is DENIED AS MOOT. The Clerk of Court is directed to CLOSE this case. Signed by Judge Beth Bloom on 11/17/2020. See attached document for full details. (kpe)

Case 1:20-cv-24732-BB Document 4 Entered on FLSD Docket 11/18/2020 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-24732-BLOOM/Otazo-Reyes
DARIUS FLOWERS,
Plaintiff,
v.
SOUTH BEACH SINGLES, INC.,
Defendant.
________________________________/
ORDER
THIS CAUSE is before the Court upon the pro se Plaintiff Darius Flowers’s (“Plaintiff”)
Motion for Leave to Proceed in Forma Pauperis, ECF No. [3] (“Motion”), filed in conjunction
with Plaintiff’s Complaint, ECF No. [1] (“Complaint”). The Court has carefully considered the
Complaint, the Motion, the record in this case, and the applicable law, and is otherwise fully
advised. For the reasons that follow, Plaintiff’s Complaint is dismissed, and his Motion is denied
as moot.
Plaintiff has not paid the required filing fee and, thus, the screening provisions of 28 U.S.C.
§ 1915(e) are applicable. Fundamental to our system of justice is that the courthouse doors will
not be closed to persons based on their inability to pay a filing fee. Congress has provided that a
court “may authorize the commencement . . . or prosecution of any suit, action or proceeding . . . or
appeal therein, without the prepayment of fees . . . therefore, by a person who submits an affidavit
that includes a statement of all assets such [person] possesses that the person is unable to pay such
fees . . . .” 28 U.S.C. § 1915(a)(1); see Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1
(11th Cir. 2004) (interpreting statute to apply to all persons seeking to proceed in forma pauperis

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Case No. 20-cv-24732-BLOOM/Otazo-Reyes
(“IFP”)). Permission to proceed in forma pauperis is committed to the sound discretion of the
court. Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986); see also Thomas v. Chattahoochee
Judicial Circuit, 574 F. App’x 916, 916 (11th Cir. 2014) (“A district court has wide discretion in
ruling on an application for leave to proceed IFP.”). However, “proceeding in forma pauperis is a
privilege, not a right.” Camp, 798 F.2d at 437.
In addition to the required showing that the litigant, because of poverty, is unable to pay
for the court fees and costs, Martinez, 364 F.3d at 1307, upon a motion to proceed in forma
pauperis, the Court is required to examine whether “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.” 28 U.S.C. § 1915(e)(2). If the Court
determines that the complaint satisfies any of the three enumerated circumstances under
§ 1915(e)(2)(B), the Court must dismiss the complaint.
A pleading in a civil action must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need
detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Importantly, “[p]ro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys and [are] liberally

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Case No. 20-cv-24732-BLOOM/Otazo-Reyes
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “But the leniency
accorded pro se litigants does not give a court license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading to sustain an action.” Matthews, Wilson & Matthews, Inc.
v. Capital City Bank, 614 F. App’x 969, 969 n.1 (11th Cir. 2015) (citing GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds by
Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)).
The Complaint in this case must be dismissed because it fails to state a claim. In order to
state a claim under 42 U.S.C. § 1983, a plaintiff must plead that he was (1) deprived of a right; (2)
secured by the Constitution or laws of the United States; and (3) that the alleged deprivation was
committed under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999);
Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001). In the Complaint, Plaintiff alleges that
he placed an order with Defendant for twenty-five photos and two brochures, which were to be
delivered within 7-10 days, but after extensive delays, he only received the photos, but not the
brochures. ECF No. [1] at 2. Subsequently, Plaintiff placed a second order with Defendant for fifty
photos, which he never received. Id. As such, he requests that this Court order an investigation
into these issues and immediate completion of his orders. Id.
Although the Court liberally construes pro se pleadings, the Court is not free to construct
causes of action for which adequate facts are not pleaded. As pled, the Complaint is entirely devoid
of facts that could state any plausible claim for relief under § 1983. Because the Court is unable to
ascertain any meritorious or plausible § 1983 claim from Plaintiff’s allegations, the instant action
must be dismissed.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Complaint, ECF No. [1], is DISMISSED WITHOUT PREJUDICE.

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Case No. 20-cv-24732-BLOOM/Otazo-Reyes
2. Plaintiff’s Motion, ECF No. [3], is DENIED AS MOOT.
3. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on November 17, 2020.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Darius Flowers
14057-029
AUSP-Thomson
Administrative United States Penitentiary
Inmate Mail/Parcels
Post Office Box 1002
Thomson, IL 61285

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