Bey v. Tampa Bay Downs

Middle District of Florida, flmd-8:2016-cv-01038

REPORT AND RECOMMENDATIONS re {{5}} MOTION for leave to proceed in forma pauperis/affidavit of indigency filed by Brother Sundiata Shu El Bey; recommending that plaintiff's complaint be dismissed but allowing plaintiff 30 days in which to file an amended complaint that complies with the Federal Rules of Civil Procedure. Signed by Magistrate Judge Thomas G. Wilson on 6/13/2016. (DMS)

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PageID 40 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BROTHER SUNDIATA SHU EL BEY Plaintiff, CASE No. 8: 16 - CV - 1038 - T - 27TGW TAMPA BAY DOWNS Defendant. REPORT AND RECOMMENDATION This cause came on for consideration upon the plaintiff's Motion to Proceed In Forma Pauperis pursuant to 28U.S. C. § 1915 (Doc. 5) . The plaintiff alleges that the defendant's termination of his employment for engaging in sexual harassment was unlawful (Doc. 1) . Because the pleading is procedurally and substantively deficient, I recommend that the plaintiff's complaint be dismissed. Under 28U.S. C. 1915 (a) (1), the court may authorize the filing of a civil lawsuit without prepayment of fees if the affiant submits an affidavit that includes a statement of all assets showing an inability to pay the filing wwwwwwwwwww w wwwwww wwwwwwwwwww SSAN WAR PageID 41 fee, and a statement of the nature of the action which shows that he is entitled to redress. Even if the affiant proves indigency, the case shall be dismissed if the action is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28U.S. C. 1915 (e) (2) (B) (i), (ii) . Initially, it is noted that the plaintiff lists in his application that his average monthly income was $ 4, 100 (Doc. 5, p. 1), with total monthly expenses of $ 1, 094 (id ., p. 5) . Therefore, based on this affidavit, the plaintiff has failed to show that he is unable to pay the filing fee. Regardless, the plaintiff's complaint is a rambling 17 - page document replete with non - sensical and irrelevant allegations that does not comply with the Federal Rules of Civil Procedure. See Rules 8 (a), 10 (b), F. R. Civ. P. For example, it clearly does not contain a short and plain statement of the claim, as it asserts multiple allegations that have no basis in the governing law, such as the violation of the " Moorish American Zodiac Constitution, " and the plaintiff includes information regarding his purported DNA and heritage that is irrelevant (Doc. 1, pp. 2, 9) . More significantly, the federal legal predicate for his contention that it was unlawful for the defendant to terminate his employment for sexual harassment is absent. The - 2 ww wwwwwwwwwwwwwwwwwwwwwwwwwwwwwww wwwww w wwwwwwwwwwwwww. PageID 42 plaintiff does not allege a violation of any federal statute governing employment discrimination. Further, he does not allege that he was fired due to a protected characteristic. While he does allege that he was denied due process because the defendant did not conduct a proper investigation before firing him for sexual harassment, the Due Process Clauses do not govern the conduct of the defendant, a private party. In sum, even construing the plaintiff's complaint liberally, Tannenbaum v. United States, 148 F. 3d 1262, 1263 (111h Cir. 1998), the plaintiff's complaint is procedurally deficient and fails to state a claim on which relief may be granted. Accordingly, the complaint should be dismissed. See 28U.S. C. 1915 (e) (2) (B) (ii) . In this circumstance, however, it is appropriate to permit the plaintiff to file an amended complaint. See Troville v. Venz, 303 F. 3d 1256, 1260 n. 5 (11 ' ' Cir. 2002) (81915 (e) (2) (B) (ii) dismissal does not allow the district court to dismiss an in forma pauperis complaint without allowing leave to amend as permitted under Rule 15, F. R. Civ. P .) . I therefore recommend that the complaint be dismissed, but allow the plaintiff to file within thirty days an amended complaint that complies - 3 - Pageld 43 with the Federal Rules of Civil Procedure. The plaintiff must also include a supplement explaining his purported inability to pay the filing fee. Respectfully submitted, Semes 8. Wilson THOMAS G. WILSON UNITED STATES MAGISTRATE JUDGE DATED: JUNE 13, 2016 NOTICE TO PARTIES A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected - to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3 - 1.