Frishberg v. University of South Florida Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DANIEL A. FRISHBERG,

Plaintiff,

v. Case No. 8:24-cv-22-TPB-NHA

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES, et al.,

Defendants.

__________________________________________/

ORDER DENYING PLAINTIFF’S “MOTION FOR RECONSIDERATION”

This matter is before the Court on Plaintiff Daniel A. Frishberg’s pro se “Motion

for Reconsideration,” in which he seeks to proceed on appeal without costs, filed on

April 24, 2024. (Doc. 34). The Court previously denied Plaintiff’s motion to proceed on

appeal without costs after finding that the appeal was not taken in good faith because

Plaintiff failed to present any issues for appeal and failed to provide any financial

information. (Doc. 32).

Under certain circumstances, a party may proceed in forma pauperis in federal

court pursuant to 28 U.S.C. § 1915, which authorizes any court of the United States to

allow indigent persons to prosecute, defend, or appeal suits without prepayment of

costs. See, e.g., 28 U.S.C. § 1915; Coppedge v. United States, 369 U.S. 438, 441 (1962).

However, a party may not proceed on appeal in forma pauperis if the trial court

certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good faith

requires that the appeal present a nonfrivolous question for review. Cruz v. Hauck,

404 U.S. 59, 62 (1971). If the plaintiff has little or no chance of success, an appeal is

frivolous. Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An appeal is also

frivolous when it is “without arguable merit either in law or fact.” Bilal v. Driver, 251

F.3d 1346, 1349 (11th Cir. 2001).

Upon review, the Court finds that Plaintiff’s motion to appeal without costs fails

to establish the existence of a reasoned, nonfrivolous argument raised on appeal.

Although Plaintiff has now put forth issues that he intends to present on appeal, his

appeal fails to present issues with arguable merit either in law or fact.1

Most of the issues presented for appeal by Plaintiff relate to his pro se status.

Although a court more liberally construes the pleadings of a pro se plaintiff, “even in

the case of pro se litigants this leniency does not give a court license to serve as de

facto counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.” United States v. Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019)

(quoting GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998),

overruled in part on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709

(11th Cir. 2010)). The Court construed the complaint liberally; it simply declined to

act as de facto counsel for Plaintiff.

Many of the issues raised by Plaintiff relate to the Court’s dismissal of the case

without leave to amend the complaint, and whether the Court should have instead

specifically told Plaintiff how to amend his complaint to state viable claims. Although

Plaintiff requested leave to amend, he improperly did so through an embedded request

1 The Court notes that Plaintiff’s intent to present argument that the Court erred by

dismissing certain claims as independent causes of action when those claims are in fact not

independent causes of action is particularly frivolous.

in his response in opposition rather than filing an independent motion that contained

the substance of the proposed amendment. See Fed. R. Civ. P. 7(b), 15(a); Advance

Trust & Life Escrow Services, LTA v. Protective Life Ins. Co., 93 F.4th 1315, 1336 (11th

Cir. 2024) (request for leave to amend not properly before district court when

embedded in response in opposition); Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.

2018) (same). As such, the request for leave to amend was not properly before the

Court.

Even if the request to amend was somehow properly before the Court,

amendment would have been futile because under the facts alleged by Plaintiff, which

the Court accepts as true, there is no viable Rehabilitation Act claim. The Court is not

required to permit amendment to assert futile claims. See Rance v. Winn, 287 F.

App’x 840, 841-42 (11th Cir. 2008) (district court did not err by dismissing pro se

complaint without leave to amend where, among other things, amendment would have

been futile); Bryant v. Dupree, 252 F.3d 1161, 11638 (11th Cir. 2001) (court need not

permit amendment where amendment would be futile).

Consequently, the Court concludes that the appeal is not taken in good faith.

“Plaintiff's Motion for Reconsideration” (Doc. 34) is therefore DENIED.

DONE and ORDERED in Chambers in Tampa, Florida, this 30th of April,

2024.

NAP. GA.

TOMBARBER i si ss—SsC

UNITED STATES DISTRICT JUDGE

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