King v. Florida Department of Children and Families

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

BRITTNEY KING,

Plaintiff,

v. Case No: 6:23-cv-465-CEM-LHP

FLORIDA DEPARTMENT OF

CHILDREN AND FAMILIES, ONE

HOPE UNITED, HEATHER HIGBEE,

CHANTELLE WADE-CAINES, AVEY

C HOLLOWAY, CYNTHIA

RODRIGUEZ, TIMIKA MCGAHEE,

RHONDA BROWN, WASHAN

SABUNCHY, CRYSTAL PFISTER,

DYESHA BAKER and SHACARIA

CUMMINGS,

Defendants

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:

This cause came on for consideration without oral argument on the following

motion filed herein:

MOTION: MOTION TO PROCEED IN FORMA PAUPERIS

(Doc. No. 2)

FILED: March 14, 2023

THEREON it is RECOMMENDED that the motion be DENIED

WITHOUT PREJUDICE.

I. BACKGROUND.

On March 14, 2023, Plaintiff Brittney King, appearing pro se, filed a complaint

against the above-named Defendants. Doc. No. 1. Plaintiff purports to bring her

claims pursuant to 42 U.S.C. § 1983, for a violation of her rights under the “1st, 2nd,

4th, 5th, 6th, 8th, 12th, 14th, 16th, and 18th Amendment[s].” Id. at 3.1

The complaint is not a model of clarity, but it appears to be premised on state

court child custody proceedings over which Defendant Judge Heather Higbee

presided. Id. at 5–6. The remaining Defendants include Florida Department of

Children and Families (“DCF”), several DCF case workers (Defendants Chantelle

Wade, Cynthia Rodriguez, Timika McGahee, Rhonda Brown, Washan Sabunchy,

Crystal Pfister, Dyesha Baker, Shacaria Cummings), One Hope United (a DCF

agency), and Avey C. Holloway, who is either Plaintiff’s children’s aunt or

Plaintiff’s husband’s ex-wife. Id. at 3–5, 6. It appears that during the state court

proceedings, Plaintiff lost custody of her children and was denied visitation. Id. at

6–7. She claims that the named Defendants violated her rights in various ways

during the custody proceedings, such as by taking her children, denying her right

1 In the complaint, Plaintiff also makes cursory reference to 42 U.S.C. § 1988, the

Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes

(2009), Title V Judicial Branch 26.012 (2016), Fla. Const., art. V § 1, and Fla. Stat. § 34.01.

Doc. No. 1, at 3.

to visitation, harassing her, misleading her, making insinuations, and manipulating

her children. Id. at 6–7. Plaintiff seeks an injunction against Defendants,

monetary damages, and return of her children to her. Id. at 8.

With the complaint, Plaintiff has also filed an Affidavit of Indigency, which

has been construed as a motion to proceed in forma pauperis. Doc. No. 2. The

motion to proceed in forma pauperis has been referred to the undersigned, and the

matter is ripe for review.

II. STANDARD OF REVIEW.

The Court must conduct a two-step inquiry when a plaintiff files a complaint

and seeks leave to proceed in forma pauperis. First, the Court must evaluate the

plaintiff’s financial status and determine whether he or she is eligible to proceed in

forma pauperis. 28 U.S.C. § 1915(a)(1). Second, once the Court is satisfied that the

plaintiff is a pauper, the Court must review the complaint pursuant to § 1915(e)(2)

and dismiss the complaint if the action is frivolous or malicious, the complaint fails

to state a claim on which relief may be granted, or the complaint seeks monetary

relief against a defendant who is immune from such relief. Id. § 1915(e)(2)(B)(i)–

(iii).2 A complaint is frivolous within the meaning of § 1915(e)(2)(B) if it “lacks an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

2 The statute governing proceedings in forma pauperis references actions instituted

by prisoners, see 28 U.S.C. § 1915, but has been interpreted to apply to all litigants

requesting leave to proceed in forma pauperis. Martinez v. Kristi Kleaners, Inc., 364 F.3d

To avoid dismissal for failure to state a claim upon which relief can be

granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 557 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citation omitted). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

A pro se complaint should be construed leniently, but a court does not have

“license . . . to rewrite an otherwise deficient pleading [by a pro se litigant] in order

to sustain an action.” GJR Invs. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662. Moreover, a pro se

litigant “is subject to the relevant law and rules of court, including the Federal Rules

of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493

U.S. 863 (1989).

III. ANALYSIS.

Upon review of Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2), it

appears that Plaintiff may qualify as a pauper pursuant to § 1915(a)(1), given that

she avers that she “has no form of income or assets to meet the fee of filing this

1305, 1306 n.1 (11th Cir. 2004).

complaint.” Doc. No. 2, at 1.3 However, Plaintiff’s complaint fails to comply with

Federal Rule of Civil Procedure 5.2, does not comply with the procedural pleading

rules, and otherwise does not state a cognizable claim for relief.

First, the complaint contains the full names of Plaintiff’s minor children.

Doc. No. 1, at 4, 7, 8. Pursuant to Federal Rule of Civil Procedure 5.2, a minor may

only be identified in filings by the minor’s initials. Fed. R. Civ. P. 5.2(a)(3). See

also M.D. Fla. Administrative Procedures for Electronic Filing, § (I)(2)(a) (2022).

Accordingly, the complaint is due to be stricken. See id.

Second, pursuant to Federal Rule of Civil Procedure 8(a), a complaint must

contain: (1) a short and plain statement of the grounds for the court’s jurisdiction;

(2) a short and plain statement of the claim showing that the pleader is entitled to

relief; and (3) a demand for the relief sought. “A party must state its claims or

defenses in numbered paragraphs, each limited as far as practicable to a single set

of circumstances.” Fed. R. Civ. P. 10(b).

Plaintiff’s complaint does not comply with these requirements. Although

the complaint begins with twenty prefatory paragraphs regarding jurisdiction,

3 I note that Plaintiff has filed only an “Affidavit of Indigency,” and she has not

submitted an Application to Proceed in District Court Without Prepaying Fees or Costs

(Long Form), which courts in this district generally require. Given the recommendation

herein that Plaintiff’s complaint be dismissed with leave to amend, I will recommend that

Plaintiff be required to complete and submit an Application to Proceed in District Court

Without Prepaying Fees or Costs (Long Form) with an amended complaint.

venue, and the parties, the factual allegations are set forth in narrative form,

interspersed with case law, and the complaint does not set forth specific claims

against the named Defendants or otherwise provide a “short and plain statement of

the claim.” See Doc. No. 1. Accordingly, her complaint is subject to dismissal

under § 1915. See, e.g., O’Neil v. State, No. 8:20-cv-1451-T-36JSS, 2020 WL 5899601,

at *2 (M.D. Fla. Sept. 14, 2020) (“The section of the Complaint entitled ‘Statement of

Claim’ does not identify the elements associated with any of Plaintiff’s putative

causes of action or identify which facts pertain to which cause of action or

defendant. Therefore, Plaintiff’s Complaint should be dismissed without

prejudice for failing to satisfy Rule 8(a) and for failing to state any claim on which

relief can be granted.”), report and recommendation adopted, 2020 WL 5893323 (M.D.

Fla. Oct. 5, 2020).

Third, Plaintiff purports to bring her claim(s) under 42 U.S.C. § 1983. See

Doc. No. 1. But Plaintiff’s complaint does not adequately allege how Defendants

violated her federal rights during the child custody proceedings. See Doc. No. 1,

at 5–7. Cf. Wray v. Dep’t of Child. & Fam. Servs., No. 1:17-CV-263-MW-GRJ, 2017 WL

6993036, at *2 (N.D. Fla. Dec. 13, 2017), report and recommendation adopted, 2018 WL

476162 (N.D. Fla. Jan. 17, 2018) (complaint alleging solely state tort claims related to

ongoing state child custody proceedings insufficient to state a claim under § 1983

for failure to allege facts suggesting that any defendant violated the plaintiff's

federal constitutional rights). See also generally Hannah v. Union Corr. Inst., No. 3:12-

cv-436-J-20JBT, 2012 WL 1413163, at *1 (M.D. Fla. Apr. 23, 2012) (“To state a claim

under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant deprived him

of a right secured under the United States Constitution or federal law and (2) such

deprivation occurred under color of state law . . . . More than conclusory and

vague allegations are required to state a cause of action under 42 U.S.C. § 1983.”

(citations omitted)).

Moreover, to the extent that Plaintiff is seeking the return of her children in

contravention of a state court custody order, it would appear that the Court lacks

jurisdiction to order such relief under the Rooker-Feldman doctrine.4 See, e.g., Hinds

v. Saunders, No. 6:18-cv-532-Orl-40TBS, 2018 WL 11314083, at *2 (M.D. Fla. Aug. 2,

2018) (finding similar claims barred by Rooker-Feldman because a contention “that

the minor children were taken from Plaintiffs’ care without court order or warrant,

. . . attacks the core of the state court’s judgments, because the state court found

probable cause to remove the children from the custody of Plaintiffs.”); Comstock v.

Hooban, No. 3:08CV25/MCR/EMT, 2008 WL 384483, at *2 (N.D. Fla. Feb. 11, 2008)

(“[T]o the extent Plaintiff seeks this court’s review of or intervention in the child

4 The Rooker-Feldman doctrine provides that lower federal courts lack jurisdiction to

review final judgments of state courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

dependency proceedings, this court lacks jurisdiction to do so. The Rooker-Feldman

doctrine places limits on the subject matter jurisdiction of federal district courts and

courts of appeal over certain matters related to previous state court litigation.”).

See also Cox v. 10th Jud. Cir., No. 8:22-cv-75-CEH-JSS, 2022 WL 1005279, at *1 (M.D.

Fla. Mar. 10, 2022), report and recommendation adopted, 2022 WL 1001498 (M.D. Fla.

Apr. 4, 2022) (“[F]ederal courts generally do not decide domestic relations cases.”

(citing Moussignac v. Ga. Dep’t of Human Res., 139 F. App’x 161, 162 (11th Cir. 2005)

(“The federal judiciary has traditionally abstained from deciding cases concerning

domestic relations. As a result, federal courts generally dismiss cases involving

divorce and alimony, child custody, visitation rights, establishment of paternity,

child support, and enforcement of separation or divorce decrees still subject to state

court modification.”)).

Finally, to the extent that Plaintiff’s claims are not subject to Rooker-Feldman,

the undersigned notes that a § 1983 claim against Judge Heather Higbee would be

barred by judicial immunity. See McCone v. City of Orlando, No. 6:11-cv-1047-Orl-

35DAB, 2011 WL 13174776, at *4 (M.D. Fla. July 8, 2011), report and recommendation

adopted, 2011 WL 13174806 (M.D. Fla. Aug. 4, 2011), aff’d, 497 F. App’x 864 (11th Cir.

2012) (“Judges are entitled to absolute judicial immunity from damages for those

acts taken while they are acting in their judicial capacity unless they acted in the

clear absence of all jurisdiction.” (citing Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.

2000))). And Plaintiff has not alleged that Avey C. Holloway is a state actor for

purposes of § 1983. See Luzier v. Bull, No. 6:06-cv-444-Orl-19JGG, 2006 WL 1000322,

at *1 (M.D. Fla. Apr. 13, 2006) (“Since Defendant was not a state actor, Plaintiff has

not satisfied the first element of the § 1983 analysis, and this case must be dismissed

for failure to state a claim.”). As to the remaining individual Defendants, Plaintiff

fails to plead sufficient facts to overcome qualified immunity. See, e.g., Nichols v.

Maynard, 204 F. App’x 826 (11th Cir. 2006) (cited as persuasive authority) (directing

dismissal of complaint against DCF employees on grounds of qualified immunity).5

See also generally Henning v. Day, No. 6:15-cv-927-Orl-40DAB, 2016 WL 1068482, at

*4 (M.D. Fla. Mar. 18, 2016) (addressing qualified immunity on § 1915 review).

For these reasons, Plaintiff’s complaint is due to be dismissed, and the filing

should be stricken from the docket.

Ordinarily, a pro se party should be given one opportunity to file an amended

complaint. See Sifford v. Ford, 701 F. App’x 794, 796 (11th Cir. 2017) (“Generally, a

district court must sua sponte provide a pro se plaintiff at least one opportunity to

amend his complaint, even where the plaintiff did not request leave to amend.”

(citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v.

5 “Unpublished opinions are not controlling authority and are persuasive only

insofar as their legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340,

1345 n.7 (11th Cir. 2007).

Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002))). Because it is at

least possible that Plaintiff may file an amended complaint that states a claim within

the Court’s jurisdiction, I recommend that the Court allow Plaintiff to file an

amended complaint, within a time established by the Court.

Should Plaintiff file an amended complaint, Plaintiff is cautioned that she

must include factual allegations in the complaint stating a plausible claim for relief,

which requires her to “plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (citation omitted). Therefore, in an amended complaint, Plaintiff

must clearly allege the legal basis of the cause of action, whether a constitutional

provision, treaty, statute, or common law. To the extent that Plaintiff seeks to

proceed under 42 U.S.C. § 1983, Plaintiff must specifically allege that the named

defendant(s) deprived her of a right secured under the United States Constitution

or federal law and that such deprivation occurred under color of state law.

Further, in an amended complaint, Plaintiff must allege in the body of the

complaint how each named Defendant participated in the activity that allegedly

violated her rights. Plaintiff must allege some causal connection between each

Defendant named and the injury she allegedly sustained. One generally cannot be

held liable for the actions and/or omissions of others, but can only be held

responsible if he or she participated in the deprivation of a person’s rights or

directed such action and/or omission that resulted in such deprivation. Finally,

Plaintiff must allege specifically harm or injury by the actions and/or omissions of

the Defendant(s).

Because Plaintiff is currently proceeding without a lawyer, the undersigned

directs her attention to the Court’s website, http://www.flmd.uscourts.gov. On

the Court’s homepage, Plaintiff can find basic information and resources for parties

who are proceeding without a lawyer in a civil case by clicking on the “For

Litigants” tab and then clicking on “Litigants without Lawyers.”

IV. RECOMMENDATION.

For the reasons stated herein, I RESPECTFULLY RECOMMEND that the

Court:

1. DENY without prejudice the motion to proceed in forma pauperis (Doc.

No. 2);

2. DISMISS the complaint without prejudice, and STRIKE the filing

from the docket (Doc. No. 1);

3. PERMIT Plaintiff to file an amended complaint, within a time

established by the Court, along with a renewed motion to proceed in forma

pauperis, by filing a completed Application to Proceed in District Court

Without Prepaying Fees or Costs (Long Form).6

6 The Application to Proceed in District Court Without Prepaying Fees or Costs

NOTICE TO PARTIES

A party has fourteen days from the date the Report and Recommendation is

served to serve and file written objections to the Report and Recommendation’s

factual findings and legal conclusions. Failure to serve written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. 11th

Cir. R. 3-1.

Recommended in Orlando, Florida on April 24, 2023.

hegrar Hic

LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Presiding District Judge

Counsel of Record

Unrepresented Party

Courtroom Deputy

(Long Form) is available on the Court’s website, https://www.flmd.uscourts.gov, by

selecting “For Litigants,” and “Litigants Without Lawyers,” and then selecting “Forms.”

WS