Martino v. Campbell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ROLAND THOMAS MARTINO and

LESA MARIA MARTINO,

Petitioners,

v. Case No: 8:21-cv-1636-KKM-JSS

PAMELA CAMPBELL,

CHRISTOPHER SCALZI, and

MEMBERS TRUST COMPANY, FSB,

Respondents.

ORDER

Petitioner Lisa Maria Martino brings this habeas petition on behalf of her father,

Roland Thomas Martino, who is currently incapacitated. Petitioner alleges that Mr.

Martino is “being confined” at an assisted living facility in Tampa, Florida. She claims that

Mr. Martino is under the care of a guardian, Respondent Christopher Scalzi, by order of

the Honorable Pamela Campbell of the Sixth Judicial Circuit Court for Pinellas County.

Petitioner brings claims under the Fourteenth Amendment to the United States

Constitution, 42 U.S.C. § 1986, and 28 U.S.C. § 2254, seeking many forms of relief,

including removal of the guardians, restraining orders, nullification of the Florida state

court orders, an order referring the case to federal law enforcement agencies for criminal

investigation, and the immediate release of Mr. Martino to the custody of Petitioner. (Doc.

1 at 24.) In addition to the petition for writ of habeas corpus, Petitioner has also moved to

proceed in forma pauperis, (Doc. 4), to add an additional respondent, (Doc. 14), and has

moved for a temporary injunction, (Doc. 15).

The Magistrate Judge issued a report recommending that the Court deny

Petitioner’s motion to proceed in forma pauperis, dismiss the habeas petition, and deny the

motion for emergency relief. (Doc. 16.) Specifically, the Magistrate Judge concluded that

this Court lacks subject matter jurisdiction because the case falls within the probate

exception to federal jurisdiction; Petitioner is seeking federal review of state court

proceedings to administer the estate of an incompetent person. Concerning Petitioner’s

claims against Judge Campbell, the Magistrate Judge concluded that these claims are

barred by the Eleventh Amendment and that Judge Campbell enjoys absolute judicial

immunity. In addition, the Magistrate Judge concluded that federal habeas relief is not

available to remedy or challenge state court judgments involving guardianship proceedings.

The Magistrate Judge also found that Petitioners’ filing constituted a shotgun pleading and

Petitioner had not shown she is entitled to emergency relief. Petitioner filed objections to

the Report and Recommendation. (Doc. 20.)

After conducting a careful and complete review of the findings and

recommendations, a district judge may accept, reject, or modify a magistrate judge’s Report

and Recommendation. 28 U.S.C. § 636(b)(1). Ifa party files a timely and specific objection

to a finding of fact by a magistrate judge, the district court must conduct a de novo review

as to that factual issue. Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir. 1992). The

district court reviews legal conclusions de novo, even in the absence of an objection. See

Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Ashworth v. Glades

Cnty. Bd. of Cnty. Comm'rs, 379 F. Supp. 3d 1244, 1246 (M.D. Fla. 2019).

After a careful and complete review of the findings and recommendations, the Court

concludes that the motion to proceed in forma pauperis should be denied and the petition

should be dismissed for the reasons stated in the Magistrate Judge’s Report. (Doc. 16.)

This Court lacks jurisdiction to review state court proceedings to administer the estate of

an incompetent person under the probate exception. See Marshall v. Marshall, 547 U.S.

293, 311-12 (2006); Sarhan v. Rothenberg, No. 07-22818-civ-LENARD, 2008 WL

2474645, at *3 (S.D. Fla. June 17, 2008) (concluding a person deemed incompetent by the

state is within the state court’s control and outside the reach of federal jurisdiction). The

Eleventh Amendment bars any claim against Judge Campbell in her official capacity and

she is also entitled to absolute judicial immunity. See Martino v. Campbell, 2020 WL

2307559, *2-*3 (M.D. Fla. May 8, 2020) (Covington, J.). Federal habeas relief is not

available to remedy or challenge state court judgments involving guardianship proceedings.

Sarhan, 2008 WL 2474645, at “6. Petitioner’s filing is a shotgun pleading because it

contains numerous conclusory, vague, and immaterial facts that do not obviously relate to

a cause of action and fails to clearly separate the various claims and specify which factual

allegations belong with which claims. See Weiland v. Palm Beach Cty. Sheriffs Off, 792

F.3d 1313, 1320 (11th Cir. 2015). Further, Petitioner is not entitled to proceed pro se in

an action brought on behalf of another. See Conner v. Pa. Nat. Mut. Cas., No. 07-14301-

civ, 2008 WL 2944662, at *1 (S.D. Fla. July 31, 2008); Sarhan, 2008 WL 2474645, at *5

n.1. Finally, assuming the Court could grant the injunctive relief Petitioner requests,

Petitioner is not entitled to that relief because, among other things, she has not established

a “substantial likelihood of success on the merits” of her petition. Parker v. State Bd. Of

Pardones & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). And because the petition

is due to be dismissed for a host of reasons, Petitioner’s request to add a respondent is moot.

(Doc. 14), as the Magistrate Judge correctly recommended, (Doc. 17).

The following is ORDERED:

1. The Magistrate Judge’s Report and Recommendations (Doc. 16, 17) are

ADOPTED and made a part of this Order for all purposes, including

appellate review.

2. Petitioner’s Motion for Leave to Proceed in forma pauperis (Doc. 4) is

DENIED without prejudice.

3. The Petition (Doc. 1) is DISMISSED with prejudice insofar as Petitioner

brings claims against Judge Campbell that are barred by the Eleventh

Amendment and the doctrine of judicial immunity.

4, The Petition is otherwise DISMISSED without prejudice and with leave

to file a petition or complaint that establishes the Court’s jurisdiction and

complies with the Federal Rules of Civil Procedure. If Petitioner chooses to

file an amended pleading, she must do so within 30 days, making any

amended pleading due no later than December 1, 2021. Failure to file a

timely amended pleading will render this order a final judgment for appellate

purposes and divest this Court of jurisdiction to entertain any pre-judgment

motions.

5. Petitioner's Motion to Add Party (Doc. 14) and Motion for Preliminary

Injunction are (Doc. 15) are DENIED as moot.

ORDERED in Tampa, Florida, on November 1, 2021.

4 athren Kimlall Whe ge

athryn’ Kimball Mizelle

United States District Judge