Brown v. Sercus

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DEVIN BROWN,

Plaintiff,

v. Case No.: 8:23-cv-00609-KKM-MRM

JULIE SERCUS,

Defendant.

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REPORT AND RECOMMENDATION

Plaintiff Devin Brown filed an Application to Proceed in District Court

Without Prepaying Fees or Costs (Long Form) on March 20, 2023, which the Court

construes as a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915

and M.D. Fla. R. 6.03. (Doc. 2). Plaintiff seeks leave to proceed in forma pauperis,

which is without pre-payment of fees. The Undersigned has carefully reviewed the

Complaint (Doc. 1) and the motion for leave to proceed in forma pauperis (Doc. 2)

under 28 U.S.C. § 1915 and relevant pleading standards. Based upon that review,

the Undersigned recommends that Plaintiff’s motion be denied without prejudice

and Plaintiff be required to amend the Complaint.

LEGAL STANDARDS

When a plaintiff files an application or motion to proceed in forma pauperis, the

Court must review the pleading and the case under 28 U.S.C. § 1915. Upon such a

review, § 1915 requires the Court to dismiss the case if the Court determines that:

(A) the allegation of poverty is untrue; or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be

granted; or

(iii) seeks monetary relief against a defendant who

is immune from such relief.

28 U.S.C. § 1915(e)(2). A complaint is considered to be “frivolous” when it “lacks

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

(1989).

Notably, while pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys, Whitehurst v. Wal-Mart, 306 F. App’x 446, 447 n.2

(11th Cir. 2008), a litigant’s pro se status “generally will not excuse mistakes [the

litigant] makes regarding procedural rules,” Mickens v. Tenth Jud. Cir., 181 F. App’x

865, 875 (11th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)).

This means that even pro se litigants must, among other things, meet minimal

pleading standards and allege the essential elements of their claims for relief. See

Eidson v. Arenas, 910 F. Supp. 609, 612 (M.D. Fla. 1995).

As a threshold consideration, Fed. R. Civ. P. 8 requires a pleading to contain:

(1) a short and plain statement of the grounds for the

court’s jurisdiction, unless the court already has

jurisdiction and the claim needs no new jurisdictional

support;

(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, which may include

relief in the alternative or different types of relief.

Fed. R. Civ. P. 8(a)(1)-(3). A plaintiff’s obligation to show entitlement to relief

requires more than labels, conclusions, or a formulaic recitation of the cause of

action’s elements. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-63 (2007). Rather, a

complaint must contain enough factual allegations to “state a claim to relief that is

plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The

Court need not accept legal conclusions or threadbare recitals of the elements of a

cause of action supported by conclusory statements as true. Twombly, 550 U.S. at

555; Iqbal, 556 U.S. at 678.

Additionally, Fed. R. Civ. P. 10 provides that in any pleading:

A party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to

a paragraph in an earlier pleading. If doing so would

promote clarity, each claim founded on a separate

transaction or occurrence – and each defense other than a

denial – must be stated in a separate count or defense.

Fed. R. Civ. P. 10(b). “Rules 8 and 10 work together ‘to require the pleader to

present his claims discretely and succinctly, so that his adversary can discern what he

is claiming and frame a responsive pleading, the court can determine which facts

support which claims and whether the plaintiff has stated any claims upon which

relief can be granted, and, at trial, the court can determine that evidence which is

relevant and that which is not.’” Meide v. Pulse Evolution Corp., No. 3:18-cv-1037-J-

34MCR, 2019 WL 4918264, at *1-2 (M.D. Fla. Oct. 4, 2019) (quoting Fikes v. City of

Daphne, 79 F.3d 1079, 1082 (11th Cir. 1996)).

Relatedly, the Eleventh Circuit has repeatedly condemned so-called “shotgun

pleadings” that run afoul of Rule 8 and/or Rule 10. See Silverthorne v. Yeaman, 668 F.

App’x 354, 355 (11th Cir. 2016) (citing Weiland v. Palm Bch. Cty. Sheriff’s Office, 792

F.3d 1313, 1321 (11th Cir. 2015)). Shotgun pleadings include those that:

(1) contain multiple counts where each count adopts the

allegations of all preceding counts;

(2) do not re-allege all preceding counts but are “replete

with conclusory, vague, and immaterial facts not

obviously connected to any particular cause of

action;”

(3) do not separate each cause of action or claim for relief

into separate counts; or

(4) contain counts that present more than one discrete

claim for relief.

Id. (quoting Weiland, 792 F.3d at 1321-23); see also Toth v. Antonacci, 788 F. App’x

688, 689-91 (11th Cir. 2019).

ANALYSIS

The Undersigned has carefully reviewed Plaintiff’s Complaint (Doc. 1) in light

of the pleading standards articulated above and the requirements of § 1915. The

Undersigned finds and determines that Plaintiff must amend the Complaint (Doc. 1).

Primarily, Plaintiff brings an action that fails to state a claim on which relief

may be granted within the meaning of 28 U.S.C. § 1915(e)(2)(B)(ii). In his

Complaint, Plaintiff alleges that Defendant Julie Sercus, a state judge, “made an

Unlawful Enforcement order attaching the Disabled Plaintiff[’]s Federally protected

Title 38 VA disability [c]ompensation and used it as ‘income’ as an apportionment

claim for the Plaintiff[’]s daughter.” (Doc. 1 at 9). He also generally alleges that

Judge Sercus was prejudiced and biased against him during the proceedings in state

court. (Id. at 10). Earlier in the Complaint, Plaintiff indicated that his lawsuit is

brought under 42 U.S.C. § 1983 against Defendant in her official capacity. (Id. at 2-

33).1 In terms of relief, Plaintiff requests, in part, an immediate dismissal of “all

order[s] [Defendant] signed involving an unlawful attachment.” (Id. at 5).

Construed liberally, the Undersigned finds that Plaintiff’s Complaint raises

claims related to certain state court decisions apportioning part of his veterans

benefits to pay for child support obligations.2 Under that liberal interpretation, the

Undersigned finds that Plaintiff’s Complaint should be dismissed for several reasons.

First, Plaintiff’s Complaint does not give Defendant adequate notice of the

claims against her pursuant to Fed. R. Civ. P. 8. At a minimum, Plaintiff “does not

denominate any counts in his complaint or aver any causes of action.” Tucker v. Fla.

Dep’t of Revenue, No. 8:21-cv-1251-KKM-CPT, 2021 WL 5923064, at *3 (M.D. Fla.

Nov. 3, 2021), report and recommendation adopted, 2021 WL 5505441 (M.D. Fla. Nov.

1 Additionally, Plaintiff cites, without accompanying explanation, the following

statutes as the basis for invoking this Court’s federal question jurisdiction: 42 U.S.C.

§ 659(a) and (h)(1)(B)(iii), 38 U.S.C. § 511(a), 38 U.S.C. § 5301, 42 U.S.C. § 407, and

38 U.S.C. § 6102(b). (Doc. 1 at 3).

2 Although brought against a different defendant, Plaintiff raised similar claims in an

earlier filed case that is now closed. See Brown v. Brown-Spender, No. 8:22-cv-02918-

MSS-MRM (M.D. Fla. Dec. 22, 2022).

24, 2021). The Undersigned finds that this deficiency “deprive[s] the Defendant[ ]—

and the Court—of ‘fair notice’ about the nature of the claim (or claims) brought

against the Defendant[ ] and the ‘grounds’ upon which it is predicated.” Id. (citing

Twombly, 550 U.S. at 555 n.3). Accordingly, Plaintiff’s Complaint is due to be

dismissed on that basis.

Second, and relatedly, Plaintiff has filed an impermissible shotgun pleading

that does not separate each cause of action or claim for relief into separate counts.

Rule 10(b) requires that Plaintiff separate his allegations into numbered paragraphs.

The failure to do so results in Plaintiff’s Complaint being an impermissible shotgun

pleading. Silverthorne, 668 F. App’x at 355. Therefore, dismissal of the Complaint is

appropriate on this ground as well.

Third, to the extent that Plaintiff seeks any monetary damages in this suit,

those claims likely fail under the Eleventh Amendment. “The Eleventh Amendment

prevents private individuals from suing states—and those agencies and departments

that are considered ‘arms of the state’—for monetary damages, unless the state

consents to be sued, has waived immunity, or Congress has abrogated the state’s

immunity.” Neely v. Ga. Dep’t of Hum. Res., 745 F. App’x 890, 892 (11th Cir. 2018);

see also Tindol v. Ala. Dep’t of Revenue, 632 F. App’x 1000, 1002 (11th Cir. 2015)

(“[N]o remedy is provided by § 1983 for a Complaint naming only state officials in

their official capacities and seeking monetary damages.”). Plaintiff has provided no

basis for why sovereign immunity under the Eleventh Amendment would not bar the

claims against Judge Sercus in her official capacity. (Doc. 1). Should Plaintiff seek

monetary damages and choose to amend his Complaint, he must address this

deficiency. See 28 U.S.C. § 1915(e)(2)(B)(iii).

Fourth, to the extent Plaintiff seeks to overturn or invalidate Judge Sercus’s

decisions or judgments (see Doc. 1 at 5), this action may be precluded by the Rooker-

Feldman abstention doctrine. Rooker v. Fidelity Tr. Co., 263 U.S. 413, 415-16 (1923);

Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983). “The Rooker-

Feldman doctrine provides that federal courts, other than the United States Supreme

Court, have no authority to review the final judgments of state courts.” Bey v. Ninth

Jud. Cir., No. 6:11-cv-510-18DAB, 2011 WL 1791284, at *2 (M.D. Fla. Apr. 15,

2011). The doctrine applies to cases “brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and rejection of those

judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

“The state court appellant has to find a state court remedy, or obtain relief from the

U.S. Supreme Court.” Vasquez v. YII Shipping Co., Ltd., 692 F.3d 1192, 1195 (11th

Cir. 2012). Plaintiff has provided no basis for why his claims would not be barred by

this doctrine. (Doc. 1). If Plaintiff decides to amend his Complaint, he must address

why this Court should not abstain pursuant to the Rooker-Feldman doctrine.

Fifth, Plaintiff’s Complaint is likely subject to dismissal under the domestic

relations exception. Tucker, 2021 WL 5923064, at *5. “This long-standing exception

instructs federal courts to abstain from exercising jurisdiction over cases that require

a determination on issues of child custody, child support, paternity, divorce, or

alimony.” Id. (citing Moussignac v. Ga. Dep’t of Hum. Res., 139 F. App’x 161, 162

(11th Cir. 2005)). “This exception carries greater weight where exercising

jurisdiction over a case would ‘mandate inquiry into the marital or parent-child

relationship.’” Id. (citing Ingram v. Hayes, 866 F.2d 368, 370 (11th Cir. 1988)).

Plaintiff’s primary concern appears to be the judicial order apportioning his

benefits for child support obligations. (Doc. 1). That puts this case “squarely within

the domestic relations exception to federal court jurisdiction.” Azevedo v. Fla. Dep’t of

Revue Child Support Customer Servs., No. 6:17-cv-1304-Orl-37GJK, 2017 WL 5178486,

at *3 (M.D. Fla. Oct. 19, 2017), report and recommendation adopted, 2017 WL 5158406

(M.D. Fla. Nov. 7, 2017); see also Tucker, 2021 WL 5923064, at *5 (finding that the

plaintiff’s “allegations center on the Defendants’ purported conduct with respect to

his court-ordered child support, a matter which would seem to fall within the scope

of the domestic relations exception”). Thus, the Undersigned finds that this action

likely implicates the domestic relations exception, and this Court should not exercise

jurisdiction over Plaintiff’s claims.

Based upon the foregoing, the Undersigned recommends permitting Plaintiff

one opportunity to amend his Complaint to address the deficiencies identified herein.

Additionally, because the Undersigned recommends requiring Plaintiff to amend the

Complaint, the Undersigned also recommends requiring Plaintiff to file an updated

affidavit of indigency on an AO 239 Application to Proceed in District Court

Without Prepaying Fees or Costs (Long Form) reflecting any change in his financial

circumstances.

CONCLUSION

Accordingly, the Undersigned RESPECTFULLY RECOMMENDS that:

1. Plaintiff’s Application to Proceed in District Court Without Prepaying

Fees or Costs (Long Form) (Doc. 2), construed as a motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915 and M.D. Fla. R. 6.03,

be DENIED WITHOUT PREJUDICE.

2. The presiding United States District Judge—

a. order Plaintiff by a date certain to file a First Amended

Complaint that demonstrates why this Court has jurisdiction

over his claims and otherwise complies with the Federal Rules of

Civil Procedure,

b. order Plaintiff to file an updated AO 239 Application to Proceed

in District Court Without Prepaying Fees or Costs (Long Form)

at the same time he files the First Amended Complaint, and

c. direct the Clerk of Court to send Plaintiff a copy of the AO 239

Application to Proceed in District Court Without Prepaying Fees

or Costs (Long Form).

3. If Plaintiff fails to comply timely with the presiding United States

District Judge’s Order, his action be dismissed without further notice.

RESPECTFULLY RECOMMENDED in Tampa, Florida on May 15, 2023.

Mac R. MA

United States Magistrate Judge

NOTICE TO PARTIES

A party has fourteen days from the date the party is served a copy of this

Report and Recommendation to file written objections to the Report and

Recommendation’s factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C).

A party’s failure to file 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. See 11th Cir. R. 3-1. A party wishing to

respond to an objection may do so in writing fourteen days from the date the party is

served a copy of the objection. To expedite resolution, the parties may also file a

joint notice waiving the fourteen-day objection period.

Copies furnished to:

Counsel of Record

Unrepresented Parties