The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LARRY K. WILLIAMS,
Plaintiff,
v. CASE NO. 3:20-cv-1452-TJC-MCR
MOMIN AQEEL,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court on (1) Plaintiff’s Affidavit of
Indigency (“Affidavit”) (Doc. 2), which the Court construes as a motion for
Plaintiff to proceed in forma pauperis in this action, and (2) Plaintiff’s Motion
[to] the Court for Leave to Issue and/or Enter a Default Judgment Order in
Favor of the Plaintiff [ ] (“Motion for Default Judgment”) (Doc. 5). The Court
has also reviewed and considered the Complaint (Doc. 1) as presently filed,
Plaintiff’s Notice, Consent and Reference of a Civil Action to a Magistrate
Judge (“Trial Consent”) (Doc. 6), and the Case Management Report (“CMR”)
(Doc. 7) that Plaintiff unilaterally filed.
For the reasons stated herein, the Court finds Plaintiff’s Affidavit for in
forma pauperis status and Plaintiff’s Motion for Default Judgment are due to
be DENIED WITHOUT PREJUDICE. Plaintiff shall have the opportunity
to file a fully completed and notarized Application to Proceed in District
Court Without Prepaying Fees or Costs (Long Form) and a properly amended
Complaint that states a cause of action cognizable in this federal court, on or
before May 19, 2021.
I. In forma pauperis status
Upon a finding of indigency, the Court may authorize the
commencement of an action without requiring the prepayment of costs, fees,
or security. 28 U.S.C. § 1915(a)(1). The Court’s decision to grant in forma
pauperis status is discretionary. See Pace v. Evans, 709 F.2d 1428, 1429
(11th Cir. 1983). While a litigant need not show that he is “absolutely
destitute” to qualify for pauper status under Section 1915, a litigant does
need to show an inability “to pay for the court fees and costs, and to support
and provide necessities for himself and his dependents.” Martinez v. Kristi
Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
Here, Plaintiff filed a partially completed Affidavit of Indigency.
Initially, the Court notes the Affidavit of Indigency is a form created
primarily for use by prisoners and Plaintiff does not appear to be
incarcerated. The preferred form for use by civil litigants seeking in forma
pauperis status is the Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form), which Plaintiff will be given the
opportunity to complete.1 The Court, nonetheless, has reviewed the present
Affidavit and finds the information provided is insufficient for the Court to
make an informed decision.
For example, basic living expenses, such as groceries, utilities, and
vehicle or transportation costs are omitted from the Affidavit. Plaintiff lists
his marital status as single, but it is not clear whether anyone lives with
Plaintiff who may either contribute financial support to Plaintiff or who
wholly relies upon Plaintiff for support. (See Doc. 2 at 1-2.) Plaintiff reports
$2,500.00 in monthly income from his job with F&M Investments. (Id. at 2.)
The only expenses Plaintiff lists are $500.00 per month for rent or mortgage,
and another $100.00 to $200.00 per month he provides for the support of his
three children. (Id.) Plaintiff indicates he has financial debts and obligations
to Navy Federal Credit Union and Vystar Credit Union, but reports monthly
payments are “N/A.” (Id. at 4.) Plaintiff lists ownership of “investment
property” that is located at 1659 West 32nd Street, Jacksonville, Florida. (Id.
at 3.) Public records show Plaintiff purchased this property on March 9, 2020
for $4,400.00.2 The disagreement between Plaintiff and an adjacent property
1 The Application to Proceed in District Court Without Prepaying Fees or
Costs (Long Form) is also available on this Court’s public website, located at
www.flmd.uscourts.gov/.
2 See City of Jacksonville, Duval Cty. Official R., Quitclaim Deed, OR Book
19132, Pages 912-15 (Mar. 9, 2020), https://oncore.duvalclerk.com/ (last visited
4/28/2021).
owner is at the core of this dispute.
Thus, upon review of the Affidavit, it is evident there are gaps within
the financial information Plaintiff provided. The Court is unable to
adequately determine whether Plaintiff is indigent and qualifies for in forma
pauperis status pursuant to 28 U.S.C. § 1915.
Accordingly, Plaintiff is instructed to carefully and completely fill out,
notarize, and file with the Court the attached Application to Proceed in
District Court Without Prepaying Fees or Costs (Long Form) no later than
May 19, 2021. In lieu thereof, Plaintiff may opt to pay the appropriate filing
fee.
II. Review of the pro se drafted complaint
When a court receives an application to proceed in forma pauperis, it is
obligated to review the complaint and must dismiss the case sua sponte if the
action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). An action fails to state
a claim on which relief may be granted if the complaint does not include “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Harper v. Lawrence Cty., Ala., 592 F.3d 1227, 1232-33 (11th Cir.
2010) (citing Fed. R. Civ. P. 8(a)(2), 12(b)(6)). To establish entitlement to
relief, Plaintiff must include in the complaint a short and plain statement of
facts in support of his claims. Fed. R. Civ. P. 8(a). This statement of facts
must show the plausibility of Plaintiff’s claim. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “[L]abels and conclusions” are not enough to satisfy the
“plausibility” standard.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
Further, federal courts are courts of limited jurisdiction and therefore,
have an obligation to inquire into their subject matter jurisdiction. See
Kirkland v. Midland Mortgage Co., 243 F.3d 1277, 1279 80 (11th Cir. 2001).
“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). A court must dismiss an action
sua sponte if it “determines at any time that it lacks subject-matter
jurisdiction.” Fed. R. Civ. P. 12(h)(3); see also Blankenship v. Gulf Power Co.,
551 F. App’x 468, 470 (11th Cir. 2013) (per curiam) (same).
Diversity jurisdiction exists only when the plaintiffs and defendants
are citizens of different states, and the amount in controversy exceeds
$75,000.00. 28 U.S.C. § 1332(a) (emphasis added). Absent diversity of
citizenship, a plaintiff must present a substantial federal question in order to
invoke the district court’s jurisdiction. Walker v. Sun Trust Bank of
Thomasville, GA, 363 F. App’x 11, 15 (11th Cir. 2010) (per curiam)
In the instant case, Plaintiff does not bring a claim pursuant to a
federal statute conveying subject matter jurisdiction. Likewise, there is no
diversity jurisdiction, as both Plaintiff and the one specifically named
defendant, Momin Aqeel, reside in Florida. (See Doc. 1 at 24.) Accordingly,
the only remaining basis for subject matter jurisdiction is federal question
jurisdiction.
Plaintiff initiated this action by filing the “Complaint for Violation of
Civil Rights (Prisoner Complaint)” on December 28, 2020. Plaintiff’s use of
the prisoner civil rights complaint form somewhat muddles the claims he
attempts to assert. As Plaintiff will be given the opportunity to file a
properly amended complaint, it is strongly recommended Plaintiff review the
additional forms for Litigants without Lawyers, also available on the Court’s
website identified in footnote 1 above, and select a form more closely aligned
with the issues Plaintiff raises.
Confusingly, Plaintiff leaves entire sections of the form he selected
blank. For example, no defendant is identified under Section I(B) of the form,
but Momin Aqeel is noted as the defendant on the cover page of the
Complaint. Rather than fill in the complaint form completely, Plaintiff states
the details of (1) his alleged claims, (2) the basis he believes establishes this
Court’s jurisdiction, (3) the sought relief, and (4) a “Certificate of Service”
statement on nine typed pages inserted throughout the form pages. The
result is a twenty-four (24) page rambling, often incoherent, document, that
is filed as the Complaint in this action.
Plaintiff claims to be the lawful owner of real property located at 1659
West 32nd Street, Jacksonville, Florida 32209. (Doc. 1 at 5.) Plaintiff sues
Momin Aqeel, whom he identifies as the “rightful and lawful” owner of real
property located at 4217 Pearce Street, Jacksonville, Florida 32209. (Id.)
Both properties are contained within the Royal Terrace subdivision and share
a common boundary line. See Jerry Holland, Property Appraiser, https://
paopropertysearch.coj.net/Basic/Search.aspx (enter street number, name,
type and direction in blank fields) (last visited Apr. 28, 2021); see also JaxGis
Duval Property Maps, found at
https://maps.coj.net/duvalproperty/default.aspx?img=img?RE=085080-0000
(enter property address) (last visited Apr. 28, 2021).
Plaintiff states he is suing “Defendant in an individual Capacity for
exercising Negligence, thereby inquiring, orchestrating and successfully
making a[n] unlawful sale and purchase transaction Under Color of Law of
the . . . property located at 4217 Pearce Street, Jacksonville, Florida 32209,
from the City of Jacksonville . . . on or about March 18, 2020, in the amount
of $19,200.00, with reckless disregard for the truth that the Plaintiff did own
approximately 44 Square [feet] of the Encroaching Structure of the 2-story
Building located at 4217 Pearce Street. (Doc. 1 at 8.) Plaintiff goes on to
complain of unauthorized construction and remodeling “on the 2-story
Encroaching structure,” the improper disposal of trash and building
materials that allegedly were illegally dumped onto Plaintiff’s property
without consent, and a conspiracy with collusion acts that has deprived
Plaintiff of his constitutional rights and caused “an unwarranted Public
Nuisance to be placed onto the Plaintiff’s Property Tax Bill by City Officials.”
(Id. at 10.)
Plaintiff alleges he has been deprived of his Fourth, Fifth, Sixth and
Eighth Amendment rights, as well as due process and equal protection of the
law under the Fourteenth Amendment to the Constitution of the United
States. Plaintiff does not specifically refer to 28 U.S.C. § 1983 in the text of
his Complaint, nor did he mark on the civil rights complaint form that he was
bringing suit against state or local officials as a § 1983 claim. Rather,
Plaintiff refers to the alleged deprivation of constitutional rights as the basis
for jurisdiction. (See Doc. 1 at 5.) To the extent Plaintiff is attempting to
bring an action against Defendants directly under the Constitution, “there is
no direct right of action against private entities or individuals for
violations of the federal Constitution.” Randolph v. Beardsley, Case No.
3:10-cv-113-J-25MCR, 2010 WL 11651579, at *3 (M.D. Fla. Feb. 17, 2010)
(citations omitted, emphasis in the original). If Plaintiff seeks to state a
claim for relief under § 1983, he must identify the statute and allege first, the
violation of a right secured by the Constitution or laws of the United States
and, second, that the alleged deprivation was committed or caused by a
person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff’s initial complaint is deficient under both prongs.
At first, Plaintiff appears to be suing only Momin Aqeel. However, in
the rambling descriptions of the wrongs Plaintiff claims to have suffered,
Plaintiff refers loosely to the City of Jacksonville, “multiple different
unknown individuals or laborers,” and “all other parties that are unnamed
herein [due] to names unknown to the Plaintiff at the time.” (See Doc. 1 at 5,
8, 9.) Moreover, on the first page of the Affidavit, Momin Aqeel and the
notation “et unknown,” are listed in the style of the case, indicating there
may be additional defendants.3 Thus, it is unclear whether Plaintiff is suing
Momin Aqeel solely, or is suing other persons or entities as well.
Reading the Complaint carefully, the Court is unable to discern any
relevant facts that potentially would support Plaintiff’s entitlement to relief
in federal court. The Complaint, in its current form, indicates the Court does
not have subject-matter jurisdiction over this action, either based on federal
question jurisdiction or based on diversity jurisdiction. This determination
3 Noting that “et al.” is an abbreviation for “and others,” the undersigned has
interpreted Plaintiff’s notation to mean “and others unknown.”
alone is sufficient to support dismissal of the Complaint.
The undersigned, however, will not recommend dismissal at this time,
but will give Plaintiff an opportunity to clarify his allegations by filing an
amended complaint. See Troville v. Venz, 303 F.3d 1256, 1260 n.5 (11th Cir.
2002) (per curiam) (stating that before dismissing an action pursuant to
Section 1915 for failure to state a claim, the Court should permit a pro se
litigant, who is seeking in forma pauperis status, the opportunity to amend
the pleading). Plaintiff is cautioned that the Court will not rewrite the
Complaint or any amended complaint to find a viable federal claim. See
Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).
Plaintiff is also cautioned that the amended complaint and any other
filings with the Court must comply with the Federal Rules of Civil Procedure
and the Local Rules of this Court, which (along with many other resources)
are available for review on the public website of the United States District
Court for the Middle District of Florida at www.flmd.uscourts.gov, as well as
in the law libraries of federal and state courthouses, and can also be obtained
from the Clerk’s Office.
III. Conclusion
If Plaintiff determines he wishes to proceed with this action, he must
file an amended complaint with sufficient factual allegations to state a claim
upon which relief may be granted and allow the Court to determine it has
subject-matter jurisdiction over this case. Specifically, the amended
complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each allegation
must be simple, concise, and direct,” Fed. R. Civ. P. 8(d)(1), and every
essential element of each claim Plaintiff asserts must be directly or indirectly
pleaded to show the Court that Plaintiff is entitled to “a recovery under some
viable legal theory.” Roe v. Aware Woman Ctr., 253 F.3d 678, 683 (11th Cir.
2001). Each claim “must include a concise statement identifying the
remedies and the parties against whom relief is sought.” Cohen v. Office
Depot, Inc., 184 F.3d 1292, 1297 (11th Cir. 1999) (internal quotation and
citation omitted). Further, each claim should be in numbered paragraphs,
with each paragraph limited as far as practicable to a single set of
circumstances. Fed. R. Civ. P. 10(b).
Accordingly, it is ORDERED:
1. The Affidavit (Doc. 2) is DENIED WITHOUT PREJUDICE. On or
before May 19, 2021, Plaintiff shall file fully completed and notarized
Application to Proceed in District Court Without Prepaying Fees or Costs
(Long Form).
2. The Motion for Default Judgment (Doc. 5) was prematurely filed and is
DENIED WITHOUT PREJUDICE.
3. Plaintiff shall file an amended complaint in compliance with this Order
and all applicable rules and law, on or before May 19, 2021.
4. In lieu of filing these documents, Plaintiff may opt to pay the
appropriate filing fee.
5. Failure to comply with this Order will likely result in a
recommendation to the District Judge that this case be dismissed for lack of
subject-matter jurisdiction, and/or failure to state a claim on which relief may
be granted by this Court.
6. The documents filed by Plaintiff on March 22, 2021 (Docs. 6 &7), which
include a unilateral Notice, Consent, and Reference of a Civil Action to a
Magistrate Judge, and a unilateral Case Management Report are
STRICKEN FROM THE RECORD.
DONE AND ORDERED at Jacksonville, Florida, on April 29, 2021.
UNITED STATES MAGISTRATE JUDGE
Attachment:
Application to Proceed in District Court
Without Prepaying Fees or Costs (Long Form)
Copies (w/ attachment) to:
Pro Se Plaintiff
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