Garner v. United States of America et al

Middle District of Florida, flmd-8:2016-cv-02158

REPORT AND RECOMMENDATIONS re {{2}} MOTION for leave to proceed in forma pauperis filed by Valencia Garner; recommending that complaint be dismissed, but with leave to amend in a more appropriate venue, and that case be closed. Signed by Magistrate Judge Thomas G. Wilson on 8/18/2016. (DMS)

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PageID 85 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION VALENCIA RENA GARNER Plaintiff, CASE No. 8: 16 - CV - 2158 - T - 27TGW UNITED STATES OF AMERICAU.S. ATTORNEY, et al ., Defendants. 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. 2) . The plaintiff asserts nonsensical and essentially incomprehensible allegations against numerous law enforcement agencies. 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 PageID 86 fee, and a statement of the nature of the action which shows that she 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) . The plaintiff has filed a " Motion Court for a Sanction ", which is construed as a complaint. It is a rambling, disjointed, and essentially incoherent document that does not comply with the Federal Rules of Civil Procedure. It does not contain a short plain statement of the claim, and certainly does not delineate the alleged causes of action into counts with the pertinent facts supporting each claim. See Rules 8 (a), 10 (6), F. R. Civ. P. Rather, the complaint is comprised of delusional allegations, such as that her family was abducted to jail by legal authorities (see e. g ., Doc. 1, pp. 2, 7, 8) . Confirming the delusional nature of the allegations is the plaintiff's statement that " threats are received daily inside my head " (id ., p. 2) . It is, furthermore, noted that venue does not appear to be appropriate. Thus, the plaintiff resides in Georgia, the defendants do not reside in Tampa, and most of the allegations relate to events in Georgia. The plaintiff makes one allegation of an incident in Florida, but that was in - 2 PageID 87 Orlando (Doc. 1, p. 9) . See 28U.S. C. S 1391 (b) (1), (2) (Venue is proper within a judicial district in which any defendant resides, if within the same state; or where a substantial part of the events or omissions giving rise to the claim occurred); Local Rule 1. 02 (c) ("All civil proceedings of any kind shall be instituted in that Division encompassing the county. . . having the greatest nexus with the cause. . . .") . Consequently, if the plaintiff does intend to file an amended complaint, it is appropriately filed in the Orlando division of this court, or in the Northern District of Georgia. See Algodonera De Las Cabezas, S. A. v. American Suisse Capital, Inc ., 432 F. 3d 1343 (11th Cir. 2005) (a district court may dismiss a suit sua sponte for improper venue, having the authority to raise the issue of defective venue on its own motion after giving the parties an opportunity to be heard) . In sum, even construing the plaintiff's complaint liberally, Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th 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 PagelD 88 Troville v. Venz, 303 F. 3d 1256, 1260 n. 5 (11th 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 with leave to amend in a more appropriate venue, and that the case be closed. Respectfully submitted, Somme b. Wein THOMAS G. WILSON UNITED STATES MAGISTRATE JUDGE DATED: August 18 2016 NOTICE TO PARTIES Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal. 28U.S. C. 636 (b) (1) . - 4