The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-13
Vv. (GTS/DJS)
ONONDAGA COUNTY, NY, ef al.,
Defendants.
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-27
Vv. (BKS/DJS)
ADIRONDACK MEDICAL CENTER,
Defendant.
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-29
Vv. (TJM/DJS)
CITIZENS UNITED, INC..,
Defendant.
-|-
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-61
V. (BKS/DJS)
AFFILIATED ENTERPRISE SOLUTIONS, LLC, et al.,
Defendants.
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-68
V. (BKS/DJS)
REDLINE HOCKEY, LLC, et al.,
Defendants.
SCOTT PHILLIP LEWIS,
Plaintiff,
8:24-CV-69
Vv. (AMN/DJS)
R.L. VALLEE, INC.,
Defendant.
APPEARANCES: OF COUNSEL:
SCOTT PHILLIP LEWIS
Plaintiff Pro Se
Lake Placid, New York 12946
DANIEL J. STEWART
United States Magistrate Judge
_2-
ORDER
On January 25, 2024, this Court issued an Order in each of these cases denying
Plaintiff's request that the Clerk of the Court issue summonses despite the fact that
Plaintiff's applications to proceed in forma pauperis (“IFP’’) had not yet been granted and
no review of the Complaints had yet been done as required by 28 U.S.C. § 1915. See,
e.g., 8:24-CV-13, Dkt. No. 7. Plaintiff now seeks reconsideration of those Orders. See,
e.g., 8:24-CV-13, Dkt. Nos. 8, Motion & 8-1, Pl.’s Mem. of Law. The Motions for
Reconsideration are denied.
“A court may justifiably reconsider its previous ruling if: (1) there is an intervening
change in the controlling law; (2) new evidence not previously available comes to light;
_|or (3) it becomes necessary to remedy a clear error of law or to prevent manifest
injustice.” Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New
York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). “The standard for
reconsideration is strict, and a motion for reconsideration will be denied unless the
moving party can point to controlling decisions or facts that the court ‘overlooked’ and
that might ‘reasonably be expected to alter the conclusion reached by the court.’” Hum.
Elecs., Inc. v. Emerson Radio Corp., 375 F. Supp. 2d 102, 114 (N.D.N.Y. 2004) (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration “is not
a vehicle for relitigating old issues, presenting the case under new theories, securing a
rehearing on the merits, or otherwise taking a ‘second bite at the apple.” Sequa Corp. v.
GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
-3-
Plaintiff sets forth several grounds for reconsideration, none of which meet the
strict standard required for granting the Motion.
Plaintiff first takes exception to the authorities the Court relied upon in denying
the request to issue summonses. Motion at p. 3. He objects that the Court “did not offer
any case law or Federal statutes that are binding on this Court.” /d. The Court, however,
did rely on a binding federal statute in citing 28 U.S.C. § 1915. Order at p. 3. Moreover,
that Plaintiff disagrees with the cases cited by the Court is not a basis for reconsideration.
Schottenstein v. Schottenstein, 2005 WL 912017, at *2 (S.D.N.Y. Apr. 18, 2005).
Issuance of summonses as requested by Plaintiff is clearly contrary to L.R. 5.1.4 which
Provides: “Prior to the Marshal serving process pursuant to 28 U.S.C. § 1915(d) and L.R.
5.1(e), the Court shall review all actions filed pursuant to 28 U.S.C. § 1915(g) to
determine whether sua sponte dismissal is appropriate.” (emphasis added). This Court’s
prior Order merely cited additional persuasive authorities to explain the conclusion. That
is clearly not a basis for reconsideration.
Plaintiff also appears to argue that the Order is unjust because it prejudices his
right to proceed with the case. Motion at pp. 3-4. Plaintiff's argument appears to be that
he is prejudiced by the delay in issuing summonses pending review of his in forma
pauperis application and that no harm would come from issuing summonses now since
the cases could be dismissed later if the applications were later denied. Jd. at p. 4. What
this argument overlooks 1s that together with consideration of the application for in forma
_4-
pauperis status, the Court must review Plaintiff's Complaints under 28 U.S.C. § 1915.
Until that review is complete service upon one or more Defendants is clearly premature.
See Morse v. United States Postal Serv., 2018 WL 3575654, at *5 (W.D.N.Y. July 25,
2018) (discussing the process for review of cases under 28 U.S.C. § 1915).
Finally, Plaintiff objects that this Court’s citation to Arroyo v. Georgia, 2023 WL
4539770, at *4 (N.D. Ga. May 30, 2023) “contains a quote that is not properly cited or
does not exist.” P1.’s Mem. of Law at p. 5. As evidence, Plaintiff provides a slip opinion
from a case captioned Arroyo v. Colbert which does not include the above quotation.
Motion at Ex. B. The confusion is easily explained. As noted in the citation, the Court
quoted from a decision issued May 30, 2023. The opinion provided by Plaintiff was
_| March 28, 2018. Id.'_ The quote to which Plaintiff objects does, in fact, appear in the
case cited by the Court, a copy of which is annexed to this Order.
For these reasons the Motions for Reconsideration are DENIED.
The Clerk of the Court is directed to serve a copy of this Order upon the Plaintiff.
Dated: February 20, 2024
Albany, New York
° Z;
eigfed ef
US-Magistrate Judge
' Nor are the two decisions even from the same case. The case cited by the Court was filed in 2022, as evidenced
by the case number 22-CV-1689. The case provided by me bears the case number 18-CV-848.
14-days to file an amended complaint in accordance with the
instructions in this Order.
KeyCite Blue Flag — Appeal Notification
Appeal Filedby VALERIE ARROYO v. STATE □□ GEORGIA, 11th Cir,
July 6, 2023 I. BACKGROUND
Plaintiff filed her first IFP application on April 28, 2022.
2023 WL 4539770
Only the Westlaw citation is currently available. Doc. No. [1]. In the complaint attached to her application,
United States District Court, Plaintiff recounts her ongoing state criminal proceedings,
N.D. Georgia, Atlanta Division. which arose from a traffic stop in December 2016 and law
enforcement finding a small amount of marijuana. Doc. No.
Valerie ARROYO, Plaintiff, [1-1], 2-3. From 2017 until 2021, Plaintiff appeared in state
V. criminal court several times but has yet to have a jury trial. 3
State of GEORGIA, Defendant. Id. at 3-5. Plaintiff is not detained, but contends that her
bail money has not been released and that the judge in the
CIVIL ACTION FILE No. 1:22-CV-01689-SCJ criminal case has not permitted her to pursue a civil legal
| action. Id. at 5. She makes a variety of unclear constitutional
Signed May 30, 2023 claims that appear to be brought under Section 1983, as well
as state law claims of negligence, defamation, slander, and
Attorneys and Law Firms unfair deceptive practices. Id. at 6-12.
Valerie Arroyo, Concord, NC, Pro Se.
On June 28, 2022, the Magistrate Judge issued an order
directing the Plaintiff to file an amended IFP application
ORDER within 21-days or pay the full filing fee because Plaintiff
had failed to complete the financial affidavit for indigency
STEVE C. JONES, UNITED STATES DISTRICT JUDGE status. Doc. No. [2]. Plaintiff then submitted an amended,
but still incomplete, IFP financial affidavit on July 8, 2022.
*1 This matter appears before the Court on Plaintiff's Doc. No. [3]. On July 20, 2022, the Magistrate Judge again
applications to proceed in forma pauperis (“IFP”), | Doc. directed Plaintiff to resubmit a completed application or pay
Nos. [1]; [3]. The Magistrate Judge issued a Report and the full filing fee. Doc. No. [4]. The Magistrate Judge also
Recommendation on November 9, 2022 recommending warned Plaintiff that failure to comply would result in its
that Plaintiffs IFP application be denied because Plaintiff recommendation to this Court that the action be dismissed. Id.
failed to provide sufficient evidence of indigency. Doc.
No. [6]. Plaintiff timely filed objections to the Report and *2 Plaintiff failed to respond. On November 9, 2022,
Recommendation. Doc. No. [8]. She also later filed two therefore, the Magistrate Judge recommended that this Court
motions captioned as a “Request for Pre-Trial Conference deny Plaintiff's IFP application for failure to provide evidence
and Scheduling Order” and a “Motion for Expedited Status of indigency and to dismiss the action without prejudice.
Conference.” Doc. Nos. [9]; [10]. Doc. No. [6]. Plaintiff filed objections to the Report and
Recommendation on November 22, 2022. Doc. No. [8].
In this Order, the Court addresses these pending submissions _ Plaintiff also submitted two motions in January 2023: a
and determines that Plaintiff is to be granted IFP status, | ‘equest for a pre-trial conference and scheduling order (Doc.
but that she has not stated a non-frivolous claim for No. [9]) anda motion for expedited status conference (Doc.
relief in her complaint. Thus, to the extent necessary, the No. [10]).
Magistrate's order on Plaintiff's financial affidavit (Doc. No.
[4]) is VACATED and the Magistrate's Recommendation In this Order, the Court addresses Plaintiff's IFP applications,
is REJECTED (Doc. No. [6]). Plaintiff IFP application, the Magistrate's Report and Recommendation to dismiss
however, is DENIED (Doc. Nos. [1]; [3]), and her case the case, Plaintiff's objections, and Plaintiff's two remaining
is accordingly DISMISSED WITHOUT PREJUDICE. — motions. Doc. Nos. [1]; [3]; [6]; [8]; [9]; [10].
Plaintiff's two remaining motions (Doc. No. [9]; [10]) are
DENIED AS MOOT. The Court finally GRANTS Plaintiff
Il. LEGAL STANDARD
This Order addresses both an application to proceed in forma B. Standards Governing Objections to a Magistrate's
pauperis and objections to a Magistrate Court's Report and Report and Recommendation
Recommendation, thus the following legal standards are Pursuant to Pals. U.S.C. § 636(b)(1), the Court must
applicable. conduct a de novo review of the portions of the
Magistrate's Recommendation to which Plaintiff has timely
A. Standards to Proceed In Forma Pauperis and specifically objected. The Court may accept, reject, or
The Court “may authorize the commencement ... of any suit, modify, in whole or in part, the findings and recommendations
action or proceeding, civil or criminal ... without prepayment made. See Fa52 U.S.C. § 636(b)(1); Pal United States v.
of fees or security therefor, by a person who submits an Raddatz, 447 U.S. 667, 673-74 (1980). However, a party's
affidavit that includes a statement of all assets [she] possesses —_ gbjection only receives de novo review when the party
that the person is unable to pay such fees or give security “clearly advise[s] the district court and pinpoint[s] the specific
F228 U.S.C. § 1915(a). This section is intended ndings that [she] disagrees with.” United States v. Schultz,
to provide indigent litigants with meaningful and equalaccess 909 F-3d 1353, 1360 (11th Cir. 2009). The district court need
to the judicial system. | “Neitzke v. Williams, 490 U.S. 319, Hot consider general objections. marsden v. Moore, 847
F.2d 1536, 1548 (11th Cir. 1988). The Court assesses for clear
324 (1988); Pl adkins v. EL. duPont de Nemours & Co., 335 error only the parts of a Recommendation to which there is
331, 342-43 (1948), Pa ttwood v. Singletary v. Singletary, 105 F.3d ng specific objection. See Pm Tauber v. Barnhart, 438 F. Supp.
610, 612 (11th Cir. 1997). The affidavit required must showan = 9g 1366, 1373 (N.D. Ga. 2006).
inability to prepay fees and costs without foregoing the basic
necessities of life. Pa Adkins, 335 US. at 339. Palsection
1915 does not, however, create an absolute right to proceed HII, ANALYSIS
in civil actions without payment of costs. The statute conveys 3 The Court proceeds as follows. It first addresses the
only a privilege to proceed to those litigants unable to pay Magistrate Court's Recommendation to deny Plaintiff's □□□
□ gg status and to dismiss her case, as well as Plaintiff's objections
filing fees when the action is not frivolous or malicious. thereto. The Court ultimately rejects the Magistrate Court's
v. United States, 415 F.2d 1115, 1116 (5th Cir. Recommendation, and grants Plaintiff IFP status for purposes
1969). of dismissing her case, without prejudice, under frivolity
review. Finally, the Court addresses Plaintiffs two other
Pa 28 U.S.C. § 1915(€)(2)(B)(ii) requires a federal court to motions in the light of the dismissal of her IFP application
dismiss an in forma pauperis complaint if it determines that and complaint.
the complaint fails to state a claim for relief. To state a claim
for which relief may be granted, a plaintiff may not merely A. The Magistrate Judge's Recommendation
plead facts that make a claim to relief conceivable; instead, Regarding Indigency
a plaintiff must plead sufficient facts to demonstrate that a Twice now the Magistrate Judge has directed Plaintiff to file
claim is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 4 completed IFP financial affidavit to prove her indigency.
433, 570 (2007). An IFP complaint must also be dismissed Doe. Nos. [2]; [4]. Regarding Plaintiff's amended affidavit,
under cction 1915 if it is frivolous or malicious, or secks _ the Magistrate Judge determined that Plaintiff corrected some
of the original omissions but failed to answer all the questions
monetary relief from an immune defendant. USC. § provided. Doc. No. [4]. The Magistrate Judge also questioned
1915(e)(2)(B)G), (itd. the veracity of Plaintiff's affidavit given that she asserted such
a trivial monthly income. Id. As such, the Magistrate Court
Plaintiff files her amended complaint pro se and so the Court ultimately determined that it had insufficient information to
will “liberally construe[ ]” it. Pa irickson v. Pardus, 551 U.S. determine if Plaintiff qualified for IFP status and ordered
89, 94 (2007) (citing Estelle v. Gamble, 49 U.S. 97, 106 Plaintiff to refile the affidavit or pay the filing fee within 21-
(1976)). days of its July 20, 2022 order. Id.
18-01, NDGa. ® Unless the Parties have consented to proceed
Plaintiff did not further amend her financial affidavit orpayof before a Magistrate Judge, only after a the IFP review
filing fee, and so, on November 9, 2022, the Magistrate Court process is complete does the submission to the Magistrate
recommended denying Plaintiff IFP status and dismissing —_ Judge terminate. See id. This delegation to Magistrate Judges
the case for failure to follow the Court's directions. Doc. Fa
No. [6]. Plaintiff objected. Doc. No. [8]. The Court has complies with the statutory requirements under □□ □□ U.S.C.
distilled Plaintiff's objections to be that: (1) that the Report § 636. Indeed, the Eleventh Circuit has implicitly endorsed a
and Recommendation was incomplete, (2) that Plaintiff did Magistrate Judge's review of IFP applications and dismissal
not consent to a Magistrate Judge resolving her case, (3) the based on failure to meet the statutory requirements.’ See,
treatment of the case lacked speedy resolution, (4) the Clerk's ex., Phomas v. Clayton Cnty. Bd. of Comm'ts, No.
Office erred under Rule 79 for failing to issue a summons, 22-10762, 2023 WL 1487766, at *4 (11th Cir, Feb. 3, 2023)
(5) her indigency status in her criminal case proves that she ra □
meets the indigency requirement to proceed IFP, and (6) (“With respect to the section 1915 review, the district
the Recommendation violates her constitutional rights. See Court (and magistr ate judge) did exactly what the statute
Doc. No. [8]. The Court addresses these objections in two authorizes: screen [petitioner's] in forma pauperis complaint
categories: those that relate to Plaintiff's indigency application 20d then dismiss the claims it determined [petitioner] had
and those that do not. failed to adequately plead.”(emphasis added)).
Accordingly, the Court overrules Plaintiff's objections
relating to her IFP application being considered by a
1, Plaintiff's Objections Unrelated to Her IFP Status Magistrate Judge (Doc. No. [8], 1). Moreover, given that
In large part, Plaintiff's objections to the Report and the Magistrate's review of the application was limited to
Recommendation do not address the reason the Magistrate a neney teen ne Ang Court □□□
Judge recommended dismissing her case—that her financial objections ms the That there udees □ an
affidavit did not provide the Magistrate Judge with adequate oto es id a bE were it □□ □□□
information to assess indigency. Plaintiff objects primarily to act OF Concmustons ° aw, Ie. at ) because the Magistrate
the process and procedure in her case, namely that her IFP Judge was only required to, and indeed completed, thorough
application was submitted to a Magistrate Judge for initial consideration of Plaintiff's financial affidavits to determine
review without her consent, that the case has not been handled indigency,
expeditiously, that the Recommendation failed to contain Nor d Plaintiff’ rai lid. objecti dine th
findings of fact or conclusions of law, and that the Clerk's Che Ki vel ant . raise @ val © □□□ 3 Unde R
office has failed to issue a summons in this matter. cts at ure to issue @ Summons. ~ abe. □□□□□
A(b), Plaintiff is responsible for presenting a summons to the
The Court overrules Plaintiff's objections. First, the Court clerk and serving it on Defendant, even when proceeding in
. . : : j p i * ited States, . □ >
acknowledges that Plaintiff's case has been in the preliminary forma paup ens Tupet_v. United States 304 F. App’x 776
IFP process longer than is ideal. The lengthiness of 780 (11th Cir. 2008). While Plaintiff attached a summons
these pending submissions, however, have not created any to eae ne ok wan [5-2], it ‘ony after
reason for rejecting the Magistrate Judge's Recommendation, ° ourt ctermunes tha am m may Proce’ in forma
especially given that part of the delay has been a result pauperis and has stated a non-frivolous claim that the Court
of Plaintiff's inadequate financial affidavits and failure to crit Clerk one we me sume om to
_. . Cf. y_V. g. Co.,
respond to the Magistrate Judge's orders. Thus, Plaintiff's aintil for compiction uey es aller □□□□ °
. _ No. CIV.A.08-0415-WS-C, 2008 WL 4490621, at *1 (S.D.
objection on this basis is overruled (Doc. No. [8], 3-4). Ala. § 59. 2008) (disallow Cletk § □
The Court, however, commits to Plaintiff that any further a. Sept. he 2 tt hed ne . ted IEP ete a
consideration of her case (including any amendments to her summons when @ p aint □ a not een grante status
complaint) will proceed expeditiously. because “federal courts ‘will ordinarily refuse to allow the
□ litigation to proceed beyond the filing of a complaint until
*4 The procedural treatment of Plaintiff's case, moreover. the fee is paid or a motion to proceed in forma pauperis is
has not been erroneous. Submissions to proceed IFP have Pees i eee wl ase a ee
been delegated to Magistrate Judges. Sce Standing Order VT » 1 (MLD. Fla. Dee.
20, 2007)). Accordingly, the Clerk issuing a summons inthis available to pay all of the household bills, much less court
case would be premature and Plaintiff's objection is overruled. fees.” Doc. No. [8], 2. While the Magistrate did not have
the advantage of Plaintiff's representation in assessing her
In sum, the Court overrules Plaintiff's objections that she has IFP financial affidavit, the Court finds this representation,
unconstitutionally failed to recetve fair and equal treatment in conjunction with the information in Plaintiff's financial
in her case (Doc. No. [8], 4). Rejecting the Magistrate affidavit, supports affording IFP status.
Judge's recommendation on these grounds is unwarranted and
Plaintiff's objections on these issues are hereby overruled. Plaintiff also indicates in support of her IFP status that she
has been appointed counsel for indigency in her criminal case.
Id. at 3. While somewhat unclear, but the Court understands
2. Plaintiff's Objections Regarding Her IFP Status Plaintiff to be stating that she has qualified as indigent in the
criminal proceedings underlying her IFP application and thus
Plaintiff does, however, raise an objection to the Magistrate's Should be considered indigent for purposes of proceeding IFP.
determination that she does not qualify as indigent (id. at □□□ See id. (“Plaintiff[’s] eligibl[ility] for a private attorney by
3), and the Court agrees with Plaintiff. Thus, the Court grants _ the State of Georgia Public Defender's Atlanta Office, then
her IFP status and will consider her application's complaint — [makes] the Plaintiff eligible for indigency status in this civil
for non-frivolous claims. matter as well.”). There is some indirect support for Plaintiff's
argument that qualifying as indigent in one proceeding
*5 Initially, the Court makes clear that the Magistrate Supports a finding of indigency in another court proceeding.
Court was correct to conduct a searching review of Plaintiffs €f- Winford v. Samuel, No. 3:16-CV-816-J-34PDB, 2017 WL
financial affidavit to determine if IFP status ought to be — 11221332, at *1 (M.D. Fla. Aug. 30, 2017) (“Having found
afforded. The Court has no intention of communicating that _ [petitioner] is eligible to proceed IFP in another case, the
Magistrate Judges should not closely scrutinize IFP financial | Court finds he is eligible to proceed IFP in these □□□□□□□□□
affidavits. In fact, such scrutiny is required given that “a Johns v. United States, No. CIV.A. 09-0386-WS-C, 2011 WL
litigant whose filing fees and court costs are assumed by the 1344245, at *1 (S.D. Ala. Apr. 8, 2011) (“[Petitioner] has
public ... lacks an economic incentive to refrain from filing _ ©Stablished his indigency, the undersigned having appointed
oy Fa the Federal Public Defender to represent the incarcerated
malicious, or repetitive lawsuits. Neitzke V. petitioner in this matter on October 13, 2010.”); United
Williams, 490 U.S. at 324. Close review is further appropriate sites y Catalano, No. 8:04-CR-348-T-24TGW, 2010 WL
because proceeding IFP is a privilege, not an entitlement, for 11519651, at *1 (MLD. Fla. Mar. 1, 2010) (discussing, under
which courts have discretion to grant. See FP! Rowland v. Cal. the Federal Rules of Appellate Procedure, that an indigency
Men's Colony, Unit II Men's Advisory Council 506 U.S. 194, determination at the district court may apply to in forma
198 (1993); Pals USC. § 1915(a)(1) (stating that courts pauperis status on appeal if there is a good faith basis for the
“may authorize the commencement” of IFP actions (emphasis appeal). Thus, while certainly not sole basis for the Court's
added)). decision, Plaintiff's appointment of criminal counsel also
supports granting her IFP status.
Upon review of Plaintiff's amended financial affidavit and *6 Because the Court disagrees with the Magistrate Judge's
especially in the light of Plaintiff's representations in her
objections to the Report and Recommendation, however, the order (Doe. No. [4)) determining that IEP status could not be
Court disagrees with the Magistrate Judge's conclusion that granted on Plamtiff's application, this order must be vacated
IFP status should be withheld from Plaintiff here. While to the extent that Plaintiff's failure to follow the order cannot
4: . . be a basis for dismissing her case. The Court thereby rejects
Plaintiff did not fully complete her financial affidavit, the .
Court is not convinced that if the omitted information had the Magistrate Judge's Recommendation (Doe. No. [6]) and
been included (i.e., the value of her household's cars and er ants Plaintiff 1FP status for purposes of dismissing her case
whether Plaintiff has used non-attorney services in connection (given the ultimate consideration of her complaint, discussed
with this case) that Plaintiff would be deemed able to pay ‘#4.
for her case. Instead, Plaintiff attests in her objections to the
Recommendation that “Plaintiff is unemployed, her husband
receives Social Security Disability, and there are no funds
B. Plaintiff's Complaint Fails to Assert a Non- *7 Plaintiff's remaining motions seek a pre-trial conference
Frivolous Claim Against the Sole Named Defendant and scheduling order (Doc. No. [9]) and an expedited status
The Court has now granted Plaintiff IFP status. An indigency conference (Doc. No. [10]}. As the Court has determined
determination, however, is not the only requirement for Plaintiff's application to proceed IFP must be denied and her
complaint dismissed, these motions pertaining to scheduling
Plaintiff to file a case under Pa2g US.C. § 1915. In matters are now MOOT. Accordingly, the Court DENIES
fact, Plaintiff's complaint must state a non-frivolous claim _ plaintiff's motions. Doc. Nos. [9]; [10].
of relief. See, e.g., Fisher _v. Equifax Servs. LLC, No.
115CV00233TWTGGB, 2015 WL 13777724, at *2 (N.D.
Ga. Feb. 18, 2015), report and recommendation adopted, No. IV. CONCLUSION
1:15-CV-233-TWT, 2015 WL 13777723 (N.D. Ga. Mar. 9, For the foregoing reasons, to the extent necessary, the
2015); Edwards v. Sneed, No. CIV.A.1:08CV1294TWT, 2008 Court VACATES the Magistrate's Order denying Plaintiff
WL 1902064, at *1 (N.D. Ga. Apr. 25, 2008). Again, anIFP —_IFP status based on her most recent financial affidavit and
complaint must be dismissed if it is frivolous, fails to state a objections to the Report and Recommendation. Doc. No.
claim for relief, or seeks monetary relief against an immune [4]. The Court REJECTS the Magistrate's Recommendation
to deny Plaintiff IFP status and dismiss the case. Doc.
defendant. Pas USC. § T9I1S()2IB). No. [6]. In its discretion, the Court GRANTS Plaintiff IFP
Here, Plaintiff asserts various constitutional claims under status for purposes of DENYING her IFP application and
Section 1983 and other state law actions for damages against DISMISSING WITHOUT PREJUDICE her complaint as
one named Defendant, the State of Georgia. The State of itis frivolous and fails to state a claim. See Doc. Nos. [1], [3].
Georgia, however, enjoys soversin tmmunity for claims filed Because Plaintiff is proceeding pro se, the Court GRANTS
by citizens of other states and citizens of its own state under . “a:
Plaintiff leave to file an amended complaint within fourteen
the Eleventh Amendment. v, Skelton, 840 F.3d 1334, (14) days of the date of the Order. If the Plaintiff files such
1337 (11th Cir. 2016) (“A state is immune from a suit for an amended complaint in the time allowed, the Clerk is
damages in federal court by one of its own citizens[.]” (citing § DIRECTED to reopen the case and resubmit the matter to
v. Louisiana, 134 US. 1, 14-17 (1890). The the Court for frivolity review. The Court warns Plaintiff that
State of Georgia has not waived its sovereign immunity in a failure to correct the deficiencies identified in this Order
federal courts, O.C.G.A. § 50-21-23(b), and Congress did may result in a dismissal of the claims with prejudice. See
not abrogate sovereign immunity in passing Section 1983. Pa@ pryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Presnell v. Paulding Cnty., 454 F. App'x 763, 766 (11th Cir.
2011) (citing Robinson v. Georgia Dept. of Transp., 966 Finally, given that the Court dismisses Plaintiff's case, the
F.2d 637, 640 (11th Cir. 1992)). Thus, as the primary relief — Court also DENIES AS MOOT Plaintiff's Motions for a Pre-
requested against the State of Georgia is monetary damages, _ Trial Conference and Scheduling and for an Expedited Status
Plaintiff's claims are barred by sovereign immunity.’ Thus, | Conference. Doc. Nos. [9]; [10].
Plaintiff's application to proceed IP is denied under Plog IT IS SO ORDERED this 30th day of May, 2023.
U.S.C. § 1915(e)(2)(B) and this case is dismissed.
All Citations
C. Plaintiff's Motions for a Pre-Trial Conference and
Expedited Status Conference Slip Copy, 2023 WL 4539770
Footnotes
1 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted
by the Court's docketing software.
2 The Complaint was also separately added to the docket with the Report and Recommendation on November
9, 2022. See Doc. No. [5].
3 Plaintiff asserts that a jury trial had been scheduled for April 14, 2020. Doc. No. [1-1], 5. While not in
Plaintiff's complaint and thereby not considered for purposes of resolving the motions in this Order, the Court
acknowledges that this trial date was in the beginning of the Covid-19 pandemic.
4 Although Congress used the word “prisoner,” P2lsection 1915 also applies to non-prisoner indigent litigants.
P@iMartinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004).
5 Decisions of the former Fifth Circuit issued prior to October 1, 1981, are binding precedent on this court. See
P&Q@ Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
6 The Standing Order can be found on the Court's website, under the “Standing Orders” section. See https://
www.gand.uscourts.gov/content/standing-order-18-01.
7 The Court is aware of some debate over a Magistrate Judge's authority to enter an order directly denying IFP
status. See Sanders v. Bayview Loan Servicing, LLC, No. 119CV01008LMMAJB, 2019 WL 2354969, at *2
n.2 (N.D. Ga. Mar. 5, 2019). Here, however, the Magistrate Judge only recommended dismissing Plaintiff's
IFP application, she did not order it, and thus the Court need not weigh in on this issue.
8 Under other circumstances the Court would vacate the Magistrate Judge's order and resubmit Plaintiff's IFP
affidavit to the Magistrate Judge for review in the light of the representations made in Plaintiff's objections
to the Report and Recommendation. Given the length of time that this IFP application has been pending,
however, and that the Court ultimately determines there is no substantive claim asserted in Plaintiff's
complaint, the Court chooses to expedite its frivolity review of Plaintiff's complaint by granting her IFP status
for purposes of dismissing her complaint.
9 To the extent that Plaintiff requests injunctive relief—e.g., for the Court to “[e]nter an order for the Defendant
to dismiss the criminal case against the Plaintiff with prejudice” or “[e]nter an order for an independent and
professional ethical investigation in this matter” (Doc. No. [1-1], 10)—the Court cannot order such relief.
Plaintiff indicates that her criminal case is ongoing. Id. at 5 (stating that no jury trial had been held and that the
case was still open as of December 1, 2021). There is no suggestion that the criminal case against Plaintiff
has been closed—and, in fact, the relief requested (an order dismissing the criminal case) implies that the
proceedings are ongoing. A federal court should not interfere with ongoing state criminal proceedings that
implicate a state interest and in which there is opportunity to raise the federal claim. See Leonard v. Ala. State
Bd. of Pharmacy, 61 F.4th 902, 907 (11th Cir. 2023). Plaintiff has not alleged such bad faith, harassment,
or irreparable injury that would permit the Court to interfere with the ongoing prosecution. See, e.g., Kyser
v. Florida, No. 3:09CV56/MCR/MD, 2009 WL 762199, at *2 (N.D. Fla. Mar. 19, 2009). Accordingly, to the
extent Plaintiff requests injunctive relief, the Court cannot grant such relief.
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.