May v. Winter Haven Police Department et al

Middle District of Florida, flmd-8:2016-cv-01968

ORDER overruling {{6}} --objections; adopting {{5}} --REPORT AND RECOMMENDATIONS; denying {{2}} --motion for leave to proceed in forma pauperis; dismissing the action; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 8/17/2016. (BK)

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PageID 35 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN WESLEY MAY, JR., Plaintiff, v. CASE NO. 8:16-cv-1968-T-23MAP WINTER HAVEN POLICE DEPARTMENT, et al., Defendants. ____________________________________/ ORDER The pro se plaintiff sues (Doc. 1) (1) Checkers, a drive-thru restaurant in Winter Haven, Florida, for refusing the plaintiff an apple pie for which he paid and (2) the Winter Haven Police Department for placing him "under arrest for misuse of a 9-1-1 emergency system and for trespassing."* The plaintiff moves (Doc. 2) to proceed in forma pauperis under 28 U.S.C. § 1915, which permits a proceeding in forma pauperis but which states, "the court shall dismiss [an action] at any time if the court determines that [the action] . . . is frivolous." A "claim is frivolous if it is without arguable merit either in law or fact [and thus] . . . the plaintiff's realistic chances of * Although the complaint fails to identify the statutes under which the officer arrested the plaintiff, the officer likely arrested the plaintiff for violation of Section 365.172(14), Florida Statutes, which prohibits "misusing the 911 system," and for violation of Section 810.08(1), which states, "Whoever. . . having been authorized, licensed, or invited [to enter a "structure or conveyance"] is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance." PageID 36 ultimate success are slight." Fortson v. Georgia, 601 Fed. Appx. 772, 774 (11th Cir. 2015) (per curiam) (citing Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001), and Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990)). Correctly recommending denial of the plaintiff's motion and correctly recommending dismissal of this action, a July 20, 2016 report (Doc. 5) from the magistrate judge explains that the complaint fails to state "a basis for this Court's jurisdiction over this dispute" and that "amendment would be futile." (citing Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)) The plaintiff's objection (Doc. 6) is OVERRULED, and the report and recommendation (Doc. 5) is ADOPTED. The plaintiff's motion (Doc. 2) to proceed in forma pauperis is DENIED, and this action is DISMISSED. The clerk is directed to close the case. ORDERED in Tampa, Florida, on August 17, 2016. -2-