Rivera v. Highsmith et al

Filing 3

ORDER: Proceeding pro se, Catherine Rivera sues Anna and Lem Highsmith for violation of [her] life tenant rights. See doc. 1 at 10. She also seeks to proceed in forma pauperis (IFP). Doc. 2. Since her Complaint does not establish any basis for this Court's jurisdiction, she must amend it. She also must supplement her IFP application so that the Court can determine whether she is indigent. (Amended Pleadings due by 2/17/2017.) Signed by Magistrate Judge G. R. Smith on 1/18/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CATHERINE T. RIVERA,
Plaintiff,
v.
ANNA HIGHSMITH, and
LEM HIGHSMITH,
Defendants.

)
)
)
)
)
)
)
)
)
)

CV417-007

ORDER
Proceeding pro se , Catherine Rivera sues Anna and Lem Highsmith
for “violation of [her] life tenant rights.” See doc. 1 at 10. She also seeks
to proceed in forma pauperis (IFP). Doc. 2. Since her Complaint does
not establish any basis for this Court’s jurisdiction, she must amend it.
She also must supplement her IFP application so that the Court can
determine whether she is indigent.

I. Application to proceed in forma pauperis
Rivera used this Court’s form for her IFP application, but she has
not supplied all of the information it requests. Doc. 2. She states that
she receives $1,280 payments, but failed to answer the form’s question

about how often she receives those payments. Id. She has also failed to
disclose her regular monthly expenses. Id. at 2. Wary of such indigency
claims and cognizant of how easily one may consume a public resource
with no financial skin in the game, 1 this Court demands supplemental
information from dubious IFP movants.

See, e.g. , Kareem v. Home

Source Rental , 986 F. Supp. 2d 1345, 1346-48 (S.D. Ga. 2013). It will do
likewise here. 2 Therefore, within 30 days from the date this Order is
filed, Rivera shall disclose to the Court the following information:

1

“[A] litigant whose filing fees and court costs are assumed by the public . . . lacks
an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Neitzke v. Williams , 490 U.S. 319, 324 (1989). Courts thus deploy
appropriate scrutiny. See Hobby v. Beneficial Mortg. Co. of Va ., 2005 WL 5409003 at
*7 (E.D. Va. June 3, 2005) (debtor denied IFP status where, although she was unable
to find employment as a substitute teacher, she had not shown she is unable to work
and earn income in other ways); In re Fromal, 151 B.R. 733, 735 (E.D. Va. 1993)
(denying IFP application where debtor was licensed attorney and accountant and she
offered no reason why she cannot find employment), cited in In re Zow , 2013 WL
1405533 at * 2 (Bankr. S.D. Ga. Mar. 4, 2013) (denying IFP to “highly educated”
bankruptcy debtor who, inter alia, had “not shown he is physically unable to work or
earn income in other ways.”); Nixon v. United Parcel Serv. , 2013 WL 1364107 at *1-2
(M.D. Ga. Apr. 3, 2013) (court examined income and expenses on long-form IFP
affidavit and determined that plaintiff in fact had the ability to pay the court’s filing
fee).
2

Two important points must be underscored. First, proceeding IFP is a privilege,
not an entitlement. See Rowland v. Cal. Men's Colony, Unit II Men’s Advisory
Council , 506 U.S. 194, 198 (1993). And second, courts have discretion to afford
litigants IFP status; it’s not automatic. 28 U.S.C. § 1915(a)(1) (courts “ may
authorize the commencement” of IFP actions) (emphasis added); Camp v. Oliver , 798
F.2d 434, 437 (11th Cir. 1986) (“There is no question that proceeding in forma
pauperis is a privilege, not a right, and permission to so proceed is committed to the
sound discretion of the court.”)
2

(1)

How often she receives her $1,280 payment;

(2)

What she spends each month -- broken down by category -- for
basic living expenses such as food, clothing, shelter, and utilities;

(3)

Whether she possesses a cellular telephone, TV set, and any
home electronics equipment (include estimated value and
related carrying expenses, such as carrier and subscription fees);

(4)

Whether she is the account owner, or has signature power, as
to any accounts with a bank or other financial institution;
and

(5)

A list of any other cases showing an indigence-based, filing fee
reduction or waiver granted by any other court (include the
full case name, case number and the name of the court
granting same).
Answering these questions will clarify Rivera’s financial condition.

In that regard, she must declare the facts she pleads to be true under
penalty of perjury. If her response goes beyond the preprinted IFP form
( i.e. , if she uses a blank sheet of paper), she must insert the following
statement, exactly as written, above her signature: “I declare under
penalty of perjury under the laws of the United States of America that
the foregoing is true and correct. Executed on (date).” 28 U.S.C.
§ 1746(1). Otherwise, she must use the Court’s IFP form and supply all
of the information requested. The Clerk is DIRECTED to serve with
this Order a blank IFP form for Rivera’s convenience. Failure to comply

3

with this directive will result in a recommendation of dismissal.

See

Kareem v. Home Source Rental , 2014 WL 24347 at *1 (S.D. Ga. Jan. 2,
2014).

II. Subject matter jurisdiction
The Court has an obligation to determine “whether it has subject
matter jurisdiction at the earliest possible stage in the proceedings.”

Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 410 (11th Cir. 1999).
Federal courts are courts of limited jurisdiction. It is presumed that a
case lies outside that jurisdiction, and the party asserting jurisdiction
(here, the plaintiff) bears the burden of overcoming that presumption.

Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)
(citations omitted). “In a given case, a federal district court must have at
least one of three types of subject matter jurisdiction: (1) jurisdiction
under a specific statutory grant; (2) federal question jurisdiction
pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28
U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp. , 128 F.3d 1466, 1469
(11th Cir. 1997) (cites omitted).

4

Rivera asserts federal question jurisdiction, 3 but, even liberally
construing her Complaint, the Court cannot discern any fact supporting
that jurisdiction. She states, without explanation, that her “case” (it’s
not clear whether she means this case or the proceedings she refers to in
the Complaint) “needed to be heard in [f]ederal court,” doc. 1 at 3, and
that she needs “the magistrate judge to allow this [f]ederal law[,] not
regular law[, claim] to be heard in federal court,” id. at 5. Her
allegations do nothing to clarify the federal question allegedly presented.
She refers to “life tenant rights,” but does not explain the basis for those
rights. See generally doc. 1. She also refers to possible tort claims, s ee

id. at 3 (alleging that she has “evidence of enbesslement [sic],” and that
3

In the civil cover sheet, submitted with her Complaint, she has checked the box
indicating “Federal Question” jurisdiction. Doc. 1 at 10. Despite the form’s
instruction to “Place an ‘X’ in One Box Only,” Rivera has checked three boxes -- in
addition to the “Federal Question” box, she has also checked “U.S. Government,
Plaintiff” and “U.S. Government, Defendant.” Id. Since none of the allegations in
the Complaint indicate that the U.S. Government is involved in the facts underlying
Rivera’s Complaint, the Court concludes that those boxes were checked by mistake.
The civil cover sheet also includes a section entitled “Nature of Suit,” provided for
plaintiffs to indicate the basis of their suit, including common law and statutory
causes of action. Id. Despite the form’s instructions to “[p]lace an ‘X’ in One Box
Only,” Rivera has checked 16 boxes. Id. The checked boxes suggest that this suit
implicates, among other issues, copyrights, the Americans with Disabilities Act, the
False Claims Act, the Freedom of Information Act, and the Administrative Procedure
Act. Id. As explained below, the facts alleged do not support the application of any of
the statutes identified. For that matter, the Court will not tolerate “scatter-shot”
lawsuits. Even pro se litigants must deploy due care to focus their claims or risk sua
sponte dismissal.
5

“defendant” “ultimately caused” “a small brain injury”), and breach of
contract claims, id. (alleging that “[her] sister . . . breached the
agreement”). Finally, she objects to unspecified proceedings before an
unidentified court. Id. at 1 (alleging “she flat out lied to the judge”), 2
(alleging “Life tenant did not have a chance to say one word w / o the
threat of jail”), 3 (alleging “the judge would not let me speak”). None of
those allegations are sufficient to support this Court’s subject matter
jurisdiction.
The Court cannot fill in jurisdictional gaps for Rivera.

Boles v.

Riva , 565 F. App’x 845, 846 (11th Cir. 2014) (“[E]ven in the case of pro se
litigants [where pleadings are construed liberally], this leniency does not
give a court license to serve as de facto counsel for a party, or to rewrite
an otherwise deficient pleading in order to sustain an action.”) (quotes
and cite omitted). Nevertheless, the Court exercises its discretion to give
Rivera a second chance. Within 30 days of the date this Order is filed,
she must file an Amended Complaint containing a “short and plain
statement” of a coherent claim. See Fed. R. Civ. P. 8(a); Bell Atl. Corp. v.

Twombly , 550 U.S. 544, 570 (2007) (requiring complaint state sufficient
facts to be “plausible on its face”). She need not “present every last

6

detail” of her case, Swain v. Colo. Tech. Univ. , 2014 WL 3012693 at * 2
(S.D. Ga. June 12, 2014), but she must give “fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson v. Pardus , 551
U.S. 89, 93 (2007) (quotes and cite omitted). Those grounds must
present the elements of each legal claim, including the basis for this

Court’s jurisdiction ,4 and follow all procedural rules, including Fed. R.
Civ. P. 8 & 10. See Albra v. Advan, Inc. , 490 F.3d 826, 829 (11th Cir.
2007) ([A]lthough we are to give liberal construction to the pleadings of

pro se litigants, we nevertheless have required them to conform to
procedural rules.”) The Clerk is DIRECTED to serve with this Order a
blank complaint form for Rivera’s convenience.

4

As has been explained:
[F]ederal courts have jurisdiction to hear a number of different kinds of cases.
The federal courts have federal question jurisdiction over cases that raise
claims under federal statutes only, pursuant to 28 U.S.C. § 1331. The federal
courts also hear cases raising only state law claims, based on the diversity of
citizenship of the parties, under § 1332. Further, the federal courts have
jurisdiction over “hybrid” actions, where a pendent state law claim is brought
along with a federal question claim in federal court, pursuant to § 1331 and §
1367.

McDaniel v. Smith , 2008 WL 4425305 at *10 (S.D. Ga. Sept. 30, 2008).
7

SO ORDERED , this 18th day of January, 2017.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA