The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEVIN BROWN,
Plaintiff,
v. Case No: 8:23-cv-741-CEH-JSS
PHILLIP MCLEOD,
Defendant.
ORDER
This cause comes before the Court on the Report and Recommendation (Doc.
5), issued by Magistrate Judge Julie S. Sneed. In the Report and Recommendation,
Magistrate Judge Sneed recommends that Plaintiff Devin Brown’s Motion to Proceed
in Forma Pauperis be denied without prejudice, Plaintiff’s Complaint dismissed, and
Plaintiff be given the opportunity to file an Amended Complaint. Plaintiff was
provided a copy of the Report and Recommendation and was afforded the opportunity
to file objections pursuant to 28 U.S.C. § 636(b)(1).
On August 21, 2023, Devin Brown filed a “Motion to Object,” which the Court
construes as an objection filed pursuant to § 636(b)(1). Upon consideration of the
Report and Recommendation, the Objection, and upon this Court’s independent
examination of the file, the Objection will be overruled, the Report and
Recommendation adopted, the Motion to Proceed in Forma Pauperis (Doc. 2) denied
without prejudice, and Plaintiff’s Complaint dismissed with an opportunity to amend.
I. BACKGROUND
On April 14, 2023, Plaintiff, proceeding pro se, filed a Civil Rights Complaint
against Defendant Phillip McLeod. Doc. 1. Plaintiff, a resident of Pasco County, sues
Defendant Phillip McLeod, a St. Petersburg attorney, for allegedly improperly
garnishing his Veteran’s Administration (VA) benefits for the payment of child
support. Doc. 1. In conjunction with the filing of his Complaint, Plaintiff filed a
motion seeking to proceed in Federal Court without prepaying fees and costs. Doc. 2.
On July 24, 2023, Magistrate Judge Sneed issued a Report and
Recommendation (R&R) in which she analyzed Plaintiff’s motion and complaint
pursuant to 28 U.S.C. § 1915. Doc. 5. In the R&R, the Magistrate Judge found that
Plaintiff failed to sufficiently allege a basis for the Court’s subject-matter jurisdiction.
To the extent that Plaintiff seeks to sue attorney McLeod under 42 U.S.C. § 1983, the
Magistrate Judge pointed out that Section 1983 creates no substantive rights. Plaintiff
is required to allege a violation of his constitutional rights, but he failed to do so. The
Magistrate Judge further found that even if Plaintiff could identify a constitutional
right that has been violated, he fails to demonstrate that attorney McLeod is a state
actor acting under the color of state law to subject him to liability under Section 1983.
The Magistrate Judge also found the Complaint deficient for failing to include a short
and plain statement of Plaintiff’s entitlement to relief in compliance with Federal Rules
of Civil Procedure 8 and 10. Rather, the Magistrate Judge found the single-spaced, one
page statement of claim to be disjointed and rambling. The Magistrate Judge
recommended Plaintiff be given at least one chance to amend the complaint before the
Court dismisses the action with prejudice.
On August 6, 2023, Plaintiff filed a motion requesting additional time to
respond to the R&R (Doc. 6), which the Magistrate Judge granted (Doc. 7). On August
21, 2023, Plaintiff filed his Motion to Object, which the Court construes as an
Objection filed pursuant to 28 U.S.C. § 636(b)(1). Doc. 8.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a
party may serve and file specific written objections to the proposed findings and
recommendations” of a magistrate judge. The district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Jeffrey S. v. State
Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). The district judge may
accept, reject, or modify, in whole or in part, the Report and Recommendation. Fed.
R. Civ. P. 72(b)(3). The district judge may also receive further evidence or recommit
the matter to the magistrate judge with further instructions. Id.
III. DISCUSSION
A liberal reading of Plaintiff’s objection reveals he first appears to challenge the
denial of his status as a pauper, arguing that Veterans’ benefits may not be considered
as part of his “gross income.” Doc. 8 at 1–3. However, the R&R recommended denial
of the in forma pauperis motion without prejudice because of the deficiencies in
Plaintiff’s Complaint, not due to a finding that he was financially ineligible to proceed
without the prepayment of fees and costs. In fact, the R&R states that Plaintiff appears
to be eligible to proceed in forma pauperis. Doc. 5 at 2.
In response to the Magistrate Judge’s findings that Plaintiff fails to set forth a
claim under Section 1983, Plaintiff argues he alleged a violation of “seven different
federal constitutional and statutory rights.” Review of the Complaint reveals he has
not alleged the violation of a Constitutional Right, and his perfunctory references to
federal statutes is conclusory and disjointed. Moreover, Plaintiff alleges no facts
demonstrating that McLeod, who is a private attorney, is somehow a state actor. As a
private attorney, Defendant McLeod would not be considered a state actor for
purposes of § 1983 liability. See Yeh Ho v. Sabocik, 775 F. App’x 551 (11th Cir. 2019)
(holding “private attorneys who represented plaintiff’s brother, in state-court
proceedings concerning guardianship matters and probate matters for mother, engaged
in state-court process and obtained court orders, did not make the attorneys state
actors, as would be required for plaintiff’s due process claims against attorneys and for
attorneys’ liability under § 1983”).
The Magistrate Judge correctly points out that Plaintiff fails to articulate the
basis for the Court’s subject-matter jurisdiction. “[O]ne cannot go into court and claim
a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against anything.”
Gonzaga Univ. v. Doe, 536 U.S. 273, 285, (2002) (citations omitted). Rather, Ҥ 1983
merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere.” Id.
To establish a § 1983 claim, the plaintiff must show that the conduct complained of (1)
was committed by a “state actor” and (2) “deprived the complainant of rights,
privileges, or immunities secured by the Constitution or laws of the United States.”
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). As discussed above, Plaintiff
fails to allege a Constitutional violation committed by a “state actor.”
Plaintiff’s objection, like his Complaint, repeatedly argues that his Veterans’
benefits are excluded from legal process, including child support. The Supreme Court’s
opinion in Rose v. Rose, 481 U.S. 619, (1987) suggests otherwise. See id. at 634
(“regardless of the merit of the distinction between the moral imperative of family
support obligations and the businesslike justifications for community property
division, we conclude that [38 U.S.C.] § 3101(a) does not extend to protect a veteran’s
disability benefits from seizure where the veteran invokes that provision to avoid an
otherwise valid order of child support”). As the Rose Court points out, “state contempt
proceedings to enforce a valid child support order coincide with Congress’ intent to
provide veterans’ disability compensation for the benefit of both appellant and his
dependents.” Id. at 631.
The Court is unaware of the proceedings in the state court below, in part
because Plaintiff’s Complaint is a rambling shotgun pleading as discussed by the
Magistrate Judge. But suffice it to say, to the extent Plaintiff seeks to challenge a state
court order awarding child support, the Rooker-Feldman1 doctrine may preclude federal
1 The Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),
and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Under the Rooker-Feldman doctrine,
federal district courts and courts of appeals lack subject-matter jurisdiction to review final
state-court decisions. May v. Morgan Cty. Ga., 878 F.3d 1001, 1004 (11th Cir. 2017).
district court review of the state-court judgment Plaintiff discusses. See Green v. Jefferson
Cty. Comm’n, 563 F.3d 1243, 1249 (11th Cir. 2009).
Given the disjointed and rambling nature of the complaint, it is due to be
dismissed. As Plaintiff has raised no valid legal objection to the Magistrate Judge’s
factual findings and recommendations, the Report and Recommendation will be
adopted. Because Plaintiff has not previously amended his Complaint, he will be given
the opportunity to file an amended complaint that complies with Rules 8 and 10 of the
Federal Rules of Civil Procedure and clearly sets forth the basis of the Court’s subject-
matter jurisdiction.
IV. CONCLUSION
After careful consideration of the Report and Recommendation of the
Magistrate Judge and the Objection thereto, in conjunction with an independent de
novo examination of the file, the Magistrate Judge’s Report and Recommendation will
be adopted, confirmed, and approved in all respects, and the motion to proceed in
forma pauperis denied without prejudice. The Court will therefore overrule Plaintiff’s
objection to the Magistrate Judge’s recommendation and dismiss Plaintiff’s Complaint
with leave to amend. Accordingly, it is hereby
ORDERED:
(1) Plaintiff Devin Brown’s Objection (Doc. 8) is OVERRULED.
(2) The Report and Recommendation of the Magistrate Judge (Doc. 5) is
adopted, confirmed, and approved in all respects and is made a part of this Order for
all purposes, including appellate review.
(3) Plaintiff’s Motion to Proceed in Forma Pauperis (Doc. 2) is DENIED,
without prejudice.
(4) Plaintiff’s Complaint is DISMISSED, without prejudice.
(5) Within 21 days from the date of this Order, Plaintiff may file an
Amended Complaint that complies with the Federal Rules of Civil Procedure,
including Rules 8 and 10, and that clearly sets forth the basis of the Court’s subject-
matter jurisdiction.
(6) Additionally, within 21 days from the date of this Order, Plaintiff must
file an Amended Application to Proceed in Court without prepaying Fees (Long
Form)2 or pay the filing fee.
(7) Failure to file an Amended Complaint that sets forth the Court’s subject-
matter jurisdiction and an Amended Application to Proceed in Court without
prepaying Fees (Long Form) within the time permitted will result in this action being
dismissed without prejudice and without further notice.
2 As referenced in the R&R, to the extent Plaintiff submits a new Application, Plaintiff shall
not leave any blanks. If the answer to a question is “0,” “none,” or “not applicable (N/A),”
the applicant shall write that response. Plaintiff can download the form from the Court’s
website: https://www.uscourts.gov/forms/fee-waiver-application-forms/application-
proceed-district-court-without-prepaying-fees-or.
DONE and ORDERED in Tampa, Florida on October 5, 2023.
Chakene Charts Mo TL ol yell
Charlene Edwards Honeywell
United States District Judge
Copies:
Counsel of Record
Unrepresented parties, if any
United States Magistrate Judge