Reddon v. Calero

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MARCIA REDDON,

Plaintiff,

v. CASE NO. 8:23-cv-418-KKM-SPF

GLORIANGELI CALERO,

Defendant.

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REPORT AND RECOMMENDATION

Before the Court is Plaintiff’s Application to Proceed in District Court without

Prepaying Fees or Costs, construed by the Court as a motion to proceed in forma pauperis

(Doc. 2). Upon review of Plaintiff’s Complaint (Doc. 1), Plaintiff’s Amended Complaint

(Doc. 3), and Plaintiff’s request to proceed in forma pauperis (Doc. 2), it is recommended

that Plaintiff’s request be denied and the Complaint dismissed.

I. BACKGROUND

Plaintiff’s Complaint alleges causes of action against Officer Gloriangeli Calero, of

the Winter Haven Police Department, in her official capacity pursuant to 42 U.S.C. §

1983, for malicious prosecution, arrest without probable cause, and unlawful seizure

(Doc. 1-1). Plaintiff alleges that, on or around January 8, 2023, she placed a 911 call with

the claim that the father of her son was physically abusing her (Doc. 1 at 7). In response,

officers from the Winter Haven Police Department arrived at her home (Id.). Plaintiff was

then informed that she would be arrested, and was refused the opportunity to use the

restroom (Id. at 8). After Plaintiff was taken to jail, she was still refused the opportunity

to use the restroom and she ultimately urinated on herself in the holding cell (Id.). Plaintiff

also alleges that she had $20-$30 on her at the time of her arrest that she did not receive

back (Id. at 9). Plaintiff was released on bond on January 11, 2023 and the charges against

her were dismissed pursuant to a no bill on January 12, 2023 (Id.).

II. DISCUSSION

The Court may authorize the commencement of any suit, action, or proceeding

without payment of fees and costs or security by a person who submits an affidavit that

includes a statement of all assets such person possesses and establishes that the person is

unable to pay such fees or give security. 28 U.S.C. § 1915(a). The in forma pauperis statute,

28 U.S.C. § 1915, is designed to ensure “that indigent persons will have equal access to

the judicial system.” Attwood v. Singletary, 105 F.3d 610, 612 (11th Cir. 1997) (per curiam)

(citing Coppedge v. United States, 369 U.S. 438, 446-47 (1962)). “[P]roceeding in forma

pauperis is a privilege, not a right.” Camp v. Oliver, 798 F.2d 434, 437 (11th Cir. 1986).

While the district court has wide discretion in ruling on an application for leave to proceed

in forma pauperis, it should grant such a privilege “sparingly” in civil cases for damages.

Thomas v. Chattahoochee Judicial Circuit, 574 F. App’x 916 (11th Cir. 2014); Martinez v. Kristi

Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir. 2004).

When considering whether a litigant is indigent under § 1915, the only

determination to be made by the district court is whether the statements in the affidavit

satisfy the requirement of poverty. Martinez, 364 F.3d at 1307. In making this

determination, the district court must compare the litigant’s assets and liabilities. Thomas,

574 F. App’x at 917. A litigant need not show he or she is “absolutely destitute” to qualify

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for indigent status. Martinez, 364 F.3d at 1307. An application need only show that the

litigant, because of poverty, is unable to pay for the court fees and costs while providing

necessities for the litigant and any dependents. Id. “In other words, the statute is not to

be construed such that potential litigants are forced to become public charges or abandon

their claims because of the filing fee requirements.” Id. In determining whether a litigant

is indigent, a court can consider income provided by a spouse and income from Social

Security or other disability benefits. See Trimble v. Volz, No. 2:08-cv-417-FtM-99DNF,

2008 WL 4490181, at *3 (M.D. Fla. Sept. 30, 2008); Sutton v. Colvin, No. 3:16-cv-886-J-

34MCR, 2016 WL 7971445, at *1 n.1 (M.D. Fla. July 26, 2016) (“Spousal income can be

considered in determining Plaintiff’s ability to pay for the Court’s fees and costs.”).

According to Plaintiff’s affidavit, her gross monthly income is $6,000.00 (Doc. 2 at

2), which equates to an annual income of $72,000.00. Plaintiff also represents that she

owns a home worth $120,000.00 and a vehicle worth $3,000.00 (Id. at 3). Plaintiff attests

that her monthly expenses and debts, on the other hand, total approximately $750.00 (Id.

at 5). Therefore, Plaintiff’s monthly household income exceeds her monthly household

expenses by approximately $5,250.00. Plaintiff has otherwise failed to demonstrate that

she is unable to pay the filing fee or provide security therefor. See 28 U.S.C. § 1915(a)(1).

Based on Plaintiff’s affidavit, the Court finds that Plaintiff is not indigent and has the

financial ability to pay the costs associated with filing her case. See Steuber v. Walter Inv.

Mgt. Corp., No. 8:17-cv-2405-T-35MAP, 2017 WL 8813074, at *2 (M.D. Fla. Nov. 30,

2017), report and recommendation adopted, 2018 WL 1866099 (Jan. 3, 2018) (finding that

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“[p]laintiff’s access to the courts does not seem to be blocked by her financial status,”

when the plaintiff’s income exceeded her expenses by $600).

Additionally, when a plaintiff files an application to proceed in forma pauperis, the

Court must review the case and dismiss it sua sponte if the court determines the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief. 28 U.S.C. §

1915(e)(2)(B)(i)-(iii). Accordingly, where a district court determines from the face of the

complaint that the factual allegations are clearly baseless, or the legal theories are without

merit, the court may conclude a case has little or no chance of success and dismiss the

complaint before service of process. Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).

The phrase “fails to state a claim upon which relief may be granted” has the same

meaning as the nearly identical phrase in Federal Rule of Civil Procedure 12(b)(6). See

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section

1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6), and we

will apply Rule 12(b)(6) standards in reviewing dismissals under section

1915(e)(2)(B)(ii).”).

To withstand a motion to dismiss, a complaint must state a “plausible”

claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, ––––, 129 S.Ct. 1937, 1949,

173 L.Ed.2d 868 (2009). This requires sufficient “factual content that allows

the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. at ––––, 129 S.Ct. at 1949. Although we must

accept all factual allegations in the complaint as true, we need not apply this

rule to legal conclusions. Id. at ––––, 129 S.Ct. at 1949. Furthermore, the

factual allegations must go beyond “naked assertions” and establish more

than “a sheer possibility” of unlawful activity. Id. at ––––, 129 S.Ct. at 1949

(quotation marks, alteration, and citation omitted). In other words, the

“[f]actual allegations must be enough to raise a right to relief above the

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speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

1955, 1965, 167 L.Ed.2d 929 (2007).

Azar v. Nat'l City Bank, 382 F. App’x 880, 884 (11th Cir. 2010).

And under Rule 8(a)(2), Federal Rules of Civil Procedure, a complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting

Bell, 550 U.S. at 555).

Here, Plaintiff’s complaint fails to state a claim upon which relief may be granted.

Plaintiff alleges causes of action pursuant to 42 U.S.C. § 1983. To state a claim under 42

U.S.C. § 1983, Plaintiff must allege that some person, acting under color of state law,

deprived plaintiff of “rights, privileges, or immunities secured by the Constitution and

Laws of the United States.” 42 U.S.C. § 1983; see Bannum, Inc. v. City of Ft. Lauderdale, 901

F.2d 989, 996–97 (11th Cir. 1990).

Plaintiff states that she is suing Officer Calero in her official capacity. Section 1983

claims against an officer in her official capacity are “another way of pleading an action

against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165

(1985). Claims brought against officers in their official capacity are construed as claims

directly against the state agency that the officer represents. Busby v. City of Orlando, 931

F.2d 764, 776 (11th Cir. 1991). Under § 1983, local government bodies, such as police

departments, may be held liable only for the acts “of the municipality”—that is, acts which

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the municipality has officially sanctioned or ordered. Pembaur v. Cincinnati, 475 U.S. 469,

479 (1986). In other words, a municipality may not be held vicariously liable for the acts

of its employees. Id.; McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Moreover,

to establish a policy or custom, a plaintiff must show a “persistent and widespread

practice,” and “actual or constructive knowledge of such customs must be attributed to a

governing body of the municipality.” Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir.

1999). Absent policymaking authority, a single incident of misconduct by an individual

fails to establish a policy or custom on the part of a municipality under § 1983. Oklahoma

City v. Tuttle, 471 U.S. 808, 821 (1985); Gilmere v. Atlanta, 737 F.2d 894, 902 (11th

Cir.1984).

Here, Plaintiff does not allege “actual or constructive knowledge ... attributed to a

governing body of the municipality,” Wayne, 197 F.3d at 1105, nor does she reference any

incidents establishing a policy or custom, beyond her own. Accordingly, she fails to state

a claim for relief under § 1983 against Officer Calero in her official capacity.

As such, the undersigned recommends that Plaintiff’s complaint be dismissed

without prejudice. It is further recommended that Plaintiff be afforded the opportunity to

file an amended complaint, which should set forth the basis for the Court’s jurisdiction

and the factual allegations establishing a claim for relief in this forum. See Corsello v.

Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005) (“Ordinarily, a party must be given at

least one opportunity to amend before the district court dismisses the complaint.”).1

1 On April 14, 2023, Plaintiff filed an “Amended Complaint” (Doc. 3). The complaint

form is blank except for Section V, in which Plaintiff requests that the Court “issue a

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Accordingly, it is hereby RECOMMENDED:

1. Plaintiffs motion to proceed in forma pauperis (Doc. 2) be DENIED.

2. Plaintiffs Complaint (Doc. 1) be DISMISSED WITHOUT PREJUDICE

and with leave to amend.

3. Plaintiff be directed to file an amended complaint that conforms to federal

pleading standards and be directed to file the applicable filing fee together with his

amended complaint.

4, Plaintiff be advised that failure to file an amended complaint or to pay the

filing fee may result in dismissal of this case without prejudice and without further notice.

IT IS SO REPORTED in Tampa, Florida, on this 10th day of May 2023.

Meee

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

temporary injunction on the Defendant for the safety of the Plaintiff.” Ud. at 5). To the

extent this document was intended to be an Amended Complaint, it is due to be dismissed

for failure to comply with the pleading requirements of the Federal Rules of Civil

Procedure. To the extent Plaintiff merely intended to add an additional request for relief

to her original Complaint, this supplement does not alter the above analysis and Plaintiff's

Complaint is still due to be dismissed. While the Young doctrine “provides an exception

to Eleventh Amendment immunity for lawsuits against state officials as long as the

plaintiffs seek only prospective injunctive relief to stop ongoing violations of federal law,”

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1215 (11th Cir. 2009), Plaintiff failed

to allege facts establishing an ongoing violation of federal law. See, e.g., Merritt v. Transp.

Officer 1, No. 5:21-CV-37-TKW/MIJF, 2022 WL 1284306, at *4(N.D. Fla. Feb. 28, 2022),

report and recommendation adopted, 2022 WL 897765 (Mar. 28, 2022) (“Because Plaintiff's

request for injunctive relief seeks only to vindicate a past wrong, he has failed to state a

claim for injunctive relief.”).

NOTICE TO PARTIES

Within fourteen days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to the proposed findings

and recommendations or request an extension of time to do so. 28 U.S.C. § 636(b)(1);

11th Cir. R. 3-1. Failure of any party to timely object in accordance with the provisions

of § 636(b)(1) waives that party’s right to challenge on appeal the district court’s order

based on the unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1.

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