Scotto v. Smiesk et al

Middle District of Florida, flmd-8:2016-cv-02941

REPORT AND RECOMMENDATIONS re {{2}} Motion for leave to proceed in forma pauperis/affidavit of indigency filed by Livia M. Scotto, {{1}} Complaint filed by Livia M. Scotto. Signed by Magistrate Judge Julie S. Sneed on 10/19/2016. (JR)

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PageID 9 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LIVIA M. SCOTTO, Plaintiff, v. Case No: 8:16-cv-2941-T-30JSS JEFF SMIESK, BRETT HART, OSCAR MUNOZ, GLENN F. TILTON, UNITED STATES, UNITED AIRLINES, ERIC HOLDER, DONALD VERRELLI, JOHN KERRY, SOCIAL SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL, DAVID BLACK, LUCINDA DAVIS, DOROTHEY M. GUY, ATTORNEY OF RECORD, MICHELLE KANE, JUDGE LANCE, JUDICIAL OFFICERS USBVA, SECRETARY OF USVA, US COURT OF VETERANS, THE CORPORATION TRUST COMPANY, REED SMITH, PRYOR CUSHMAN, CADES SCHUTTE, DEELY KING PANG HORIO, LEONG LEONG LEZY, DOUGLAS THOMAS MOORE, U.S.E.E.O.C., UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, U.S. DEPARTMENT OF LABOR, DEPARTMENT OF VETERANS AFFAIRS, BOARD OF VETERANS AFFAIRS, MILES MIYAMOTO, COUNSEL OF RECORD, DAMON KEY, STATE OF HAWAII, ROY GONSALVES, DONNA LEONG, K. KANESHIRO, CORPORATION COUNSEL, COLONEL HAN and DEPARTMENT OF DEFENSE, Defendants. ___________________________________/ REPORT AND RECOMMENDATION THIS MATTER is before the Court on Plaintiff's Affidavit of Indigency, which the Court construes as a Motion for Leave to Proceed in Forma Pauperis. (Dkt. 2.) Upon consideration, it PageID 10 is recommended that Plaintiff's Motion for Leave to Proceed in Forma Pauperis be denied and that Plaintiff's Complaint be dismissed without prejudice. Pursuant to 28 U.S.C. § 1915, the Court may, upon a finding of indigency, authorize the commencement of an action without requiring the prepayment of fees or security. 28 U.S.C. § 1915(a)(1). However, when an application to proceed in forma pauperis is filed, the Court must review the case and dismiss it sua sponte if the Court determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Upon review of Plaintiff's Motion for Leave to Proceed in Forma Pauperis, it appears that Plaintiff is financially eligible to proceed in forma pauperis in this case. However, Plaintiff's Complaint fails to comply with the pleading requirements of Federal Rule of Civil Procedure 8. Most notably, Plaintiff's Complaint contains no factual allegations showing that she is entitled to relief. (Dkt. 1.) Although pleadings drafted by pro se litigants are liberally construed, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), they must still "conform to procedural rules," Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). Under Federal Rule of Civil Procedure 8, a complaint must contain a short and plain statement of the grounds for the court's jurisdiction, a short and plain statement of the claim showing that the pleader is entitled to relief, and a demand for the relief sought. Fed. R. Civ. P. 8(a). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Additionally, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. In this case, Plaintiff fails to -2- PageID 11 provide a basis for jurisdiction, a statement of the claim, or a statement regarding damages or relief. (Dkt. 1.) Accordingly, it is RECOMMENDED: 1. Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Dkt. 2) be DENIED without prejudice. 2. Plaintiff's Complaint (Dkt. 1) be DISMISSED without prejudice and with leave to file an amended complaint that complies with the Federal Rules of Civil Procedure. See Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) ("Generally, where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.") (internal quotation and citation omitted). The undersigned recommends that the amended complaint, if any, be due within twenty (20) days of the date this Report and Recommendation becomes final. IT IS SO REPORTED in Tampa, Florida, on October 19, 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. See 11th Cir. R. 3-1. -3- PageID 12 Copies furnished to: The Honorable James S. Moody, Jr. Counsel of Record Unrepresented Party -4-