Lee v. Lee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

SHERRY N. LEE,

Plaintiff,

v. Case No. 8:24-cv-416-MSS-CPT

HEATHER L. LEE,

Defendant.

_________________/

REPORT AND RECOMMENDATION

Before me on referral is pro se Plaintiff Sherry N. Lee’s Application to Proceed in

District Court Without Prepaying Fees or Costs, which I construe as a motion to proceed

in forma pauperis (IFP Motion). (Doc. 3). Also before me is Lee’s complaint against

Defendant Heather L. Lee1 and her later filed “Civil Cover Sheet.” (Docs. 1, 4). For

the reasons discussed below, I respectfully recommend that the Plaintiff’s IFP Motion

be denied without prejudice and that her complaint be dismissed with leave to amend.

I.

Although not entirely clear, this action appears to stem from the Social Security

Administration’s (SSA) purportedly wrongful payment of $11,000 to the Defendant in

2017 and 2018 rather than to the Plaintiff. (Doc. 1). It seems from the Plaintiff’s

1 Because the parties share the same last name, they will be referred to herein simply as the Plaintiff

and the Defendant to avoid any confusion.

complaint that she had a hearing on the matter but that the SSA did not subsequently

pay her the money she believes she is owed. Id. For relief, the Plaintiff seeks, inter

alia, an “investigation,” a “[n]ew [h]earing for [o]verpayment,” and $13,000 in

damages. (Docs. 1, 4).

In support of her claim of indigency, the Plaintiff represents in her IFP Motion

that she receives $944 in monthly disability payments and incurs approximately $1,956

in monthly expenses to care for herself and her minor daughter. (Doc. 3). The Plaintiff

also attests that she owns a home worth approximately $3,8452 and that she received

a gift in the amount of $790 sometime in the past year. Id.

II.

Pursuant to 28 U.S.C. § 1915, a district court “may authorize the

commencement, prosecution or defense of any suit, action or proceeding, civil or

criminal, or appeal therein, without prepayment of fees or security therefor” upon a

showing of indigency by affidavit. 28 U.S.C. § 1915(a)(1). A district court has “wide

discretion” to grant or deny an application to proceed in forma pauperis. Martinez v.

Kristi Kleaners, Inc., 364 F.3d 1305, 1306–07 (11th Cir. 2004) (per curiam) (citation

omitted). While such an application need not evidence “that the litigant is absolutely

destitute,” it must indicate “that the litigant, because of [her] poverty, is unable to pay

for the court fees and costs, and to support and provide necessities for [herself] and

[her] dependents.” Id. at 1307 (internal quotation marks and citation omitted). In

2 The Plaintiff refers in her IFP Motion to an “attached paper,” but none is included with her

submission. (Doc. 3).

assessing whether a litigant is indigent, district “courts will generally look to whether

[she] is employed, [her] annual salary, and any other property or assets [she] may

possess.” Lesure v. Saul, 2021 WL 2003458, at *1 (M.D. Fla. Mar. 31, 2021) (internal

quotation marks and citation omitted), report and recommendation adopted, 2021 WL

2003073 (M.D. Fla. May 19, 2021).

When an application to proceed in forma pauperis is filed, a district court must

also review and dismiss the case sua sponte if it finds that the action “is frivolous or

malicious[,] fails to state a claim on 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).

In addition, the Federal Rules of Civil Procedure provide that a district court must

dismiss an action if it “determines at any time that it lacks subject-matter jurisdiction.”

Fed. R. Civ. P. 12(h)(3); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)

(stating that all federal courts “have an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence of a challenge from any party”)

(citation omitted). When evaluating a complaint under this standard, a district court

must accept all well-pleaded factual allegations as true and view them in the light most

favorable to the plaintiff. Jara v. Nunez, 878 F.3d 1268, 1271–72 (11th Cir. 2018)

(citation omitted). A district court, however, may not “afford [any] presumption of

truth to legal conclusions and recitations of the basic elements of a cause of action.”

Franklin v. Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013) (per curiam) (citations

omitted).

Finally, while pro se pleadings are to be construed liberally, district courts are

not to “act as de facto counsel” for pro se litigants, nor are they to “rewrite an otherwise

deficient pleading to sustain an action.” Bilal v. Geo Care, LLC, 981 F.3d 903, 911 (11th

Cir. 2020) (citing GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir.

1998), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

III.

Irrespective of whether the Plaintiff qualifies as indigent for purposes of

section 1915, her complaint is subject to dismissal, at a minimum, for want of subject

matter jurisdiction and for failing to comply with the basic pleading requirements set

forth in Federal Rules of Civil Procedure 8 and 10. Each of these deficiencies will be

addressed in turn.

A.

It is well established that the “federal courts are courts of limited jurisdiction.”

Home Depot U.S.A., Inc. v. Jackson, 587 U.S. 435, 437 (2019) (internal quotation marks

and citation omitted); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174–78 (1803)

(discussing the jurisdictional limitations of federal courts under Article III of the

United States Constitution). In practice, a federal court’s subject matter jurisdiction is

most often found “arising under” the laws of the United States pursuant to 28 U.S.C.

§ 1331 (i.e., federal question jurisdiction) or predicated upon the “diversity” of the

parties under 28 U.S.C. § 1332 (i.e., diversity jurisdiction). See Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005); Walker v. Sun Trust Bank of Thomasville,

Ga., 363 F. App’x 11, 15 (11th Cir. 2010) (per curiam)3 (citing 28 U.S.C. §§ 1331,

1332). Regardless of whether a plaintiff is relying on federal question or diversity

jurisdiction, she must include in her complaint a short and plain statement setting forth

enough facts that, if true, demonstrate a court has subject matter jurisdiction over her

lawsuit. See Fed. R. Civ. P. 8(a)(1); Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1268–69

(11th Cir. 2013) (citation omitted).

In this case, it appears from the Plaintiff’s most recent submission—her Civil

Cover Sheet—that she wishes to invoke the Court’s federal question jurisdiction based

on 42 U.S.C. § 408. (Doc. 4). As a number of courts have observed, however, section

408 proscribes “criminal penalties for certain acts . . . [and] does not [authorize] . . . a

private civil cause of action.” Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 33

(D.D.C. 2006), aff’d 2006 WL 3798858 (D.C. Cir. Aug. 24, 2006); see also Boyer v.

Bruno, 2023 WL 4602684, at *3 (E.D. Pa. July 17, 2023) (“Multiple federal courts have

explicitly concluded that . . . [section] 408 [does not] provide a private right of action.”)

(citations omitted); Johnson Bene v. Wells Fargo, 2023 WL 4332388, at *5 (N.D. Cal.

July 3, 2023) (“Section 408 is a criminal statute . . . and does not provide a private

right of action.”) (citations omitted); Thomas v. Dep’t of Child Support Servs., 2019 WL

1371150, at *5 (C.D. Cal. Jan. 18, 2019) (“Courts . . . have found [s]ection 408 only

establishes criminal penalties and does not provide a basis for a private civil cause of

action.”) (citations omitted), report and recommendation adopted, 2019 WL 1364969

3 Unpublished opinions are not considered binding precedent but may be cited as persuasive authority.

11th Cir. R. 36-2.

(C.D. Cal. Mar. 25, 2019), aff’d sub nom. Thomas v. Div. of Child Support Servs., 2019 WL

5390030 (9th Cir. 2019); Cogdell v. Cogdell, 2018 WL 705002, at *3 (D. Conn. Feb. 5,

2018) (same) (citations omitted); Edge v. Pro. Claims Bureau, Inc., 64 F. Supp. 2d 115,

118–19 (E.D.N.Y. 1999) (describing section 408 as “a criminal statute which provides

for no civil remedies”).

The Plaintiff’s complaint also does not establish that the Court has diversity

jurisdiction over the action either. A litigant seeking to ground her case on such

jurisdiction must show that there is complete diversity of citizenship among the parties

(i.e., that no plaintiff is a citizen of the same state as any defendant), and that the

amount in controversy exceeds the sum or value of $75,000, exclusive of interest and

costs. See 28 U.S.C. § 1332; see also Underwriters at Lloyd’s London v. Osting-Schwinn, 613

F. 3d 1079, 1085 (11th Cir. 2010); Legg v. Wyeth, 428 F.3d 1317, 1320 n.2 (11th Cir.

2005). To satisfy the monetary threshold, a plaintiff must claim “a sufficient sum in

good faith.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th

Cir. 2003) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)).

Here, the Plaintiff avers that both she and the Defendant are citizens of Florida

and that she only requests $13,000 in damages. (Doc. 4). These assertions are plainly

insufficient for purposes of demonstrating diversity jurisdiction. See Leonard v. Enter.

Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002) (recognizing that dismissal is proper

“where the pleadings make it clear to a legal certainty that the claim is really for less

than the jurisdictional amount”) (internal quotation marks and citation omitted).

B.

In addition to being jurisdictionally infirm, the Plaintiff’s complaint does not

comply with the strictures of Rules 8 and 10. Rule 8 directs, in relevant part, that a

complaint contain “a short and plain statement of [a] claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 10 relatedly instructs that a plaintiff

“state [her] claims . . . in numbered paragraphs, each limited as far as practicable to a

single set of circumstances,” and, if doing so would promote clarity, that she also state

“each claim founded on a separate transaction or occurrence . . . in a separate count.”

Fed. R. Civ. P. 10(b). As the Eleventh Circuit has explained, Rules 8 and 10 “work

together to require the pleader to present [her] claims discretely and succinctly so that

[her] adversary can discern what [she] is claiming and frame a responsive pleading,

[and so that a] court can determine which facts support which claims and whether the

plaintiff has stated any claims upon which relief can be granted.” Fikes v. City of

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

The Plaintiff’s complaint does not meet these pleading standards here. To

begin, her factual averments are too vague and conclusory to satisfy Rule 8. See Iqbal,

556 U.S. at 677–78 (noting that Rule 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation”) (citation omitted); Holbrook v. Castle

Key Ins. Co., 405 F. App’x 459, 460 (11th Cir. 2010) (per curiam) (“Where the

allegations of a complaint are ‘vague and ambiguous—leaving the reader to guess at

precisely what the plaintiff [is] claiming,’ the court should order a repleader.”) (quoting

Byrne v. Nezhat, 261 F.3d 1075, 1128 (11th Cir. 2001)). Furthermore, in contravention

of Rule 10, the Plaintiff does not set forth her claims in numbered paragraphs, each of

which is “limited as far as practicable to a single set of circumstances.” Fed. R. Civ.

P. 10(b).

Taken singularly or in combination, these pleading defects deprive the

Defendant and the Court of “fair notice” regarding the nature of the claim(s) brought

against the Defendant and the bases upon which they are predicated. Twombly, 550

U.S. at 555 n.3; see also Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1323

(11th Cir. 2015) (stating that the “unifying characteristic” of complaints that do not

adhere to the dictates of Rules 8 and/or 10 is that they do not give “defendants

adequate notice of the claims against them and the grounds upon which each claim

rests”); Curry, 738 F.3d at 1250 (“It is important that defendants be apprised of the

conduct that forms the basis of the charges against them.”). The fact that the Plaintiff

is proceeding pro se does not relieve her of the obligation of complying with the basic

pleading requirements set forth in Rules 8 and 10. McNeil v. United States, 508 U.S.

106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil

litigation should be interpreted so as to excuse mistakes by those who proceed without

counsel.”).

C.

Notwithstanding the above issues, I respectfully submit that the Court dismiss

the Plaintiff’s complaint without prejudice and with leave to amend, so that she has

an opportunity to correct these problems. See Emrit v. Sec’y, U.S. Dep’t of Educ., 829 F.

App’x 474, 477 (11th Cir. 2020) (per curiam) (“A plaintiff ordinarily should get one

opportunity to amend [her] complaint before dismissal with prejudice.”) (citing Corsello

v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005)). If the Plaintiff wishes to file a

revised complaint, however, I encourage her to seek legal assistance and to consult the

resources available to pro se litigants in advance of doing so. The Plaintiff may obtain

advice, for example, through the “Legal Information Program,” in which the Tampa

Bay Chapter of the Federal Bar Association offers unrepresented parties the chance to

solicit and obtain free, limited guidance from attorneys on the procedures governing

federal cases.

In addition, the Plaintiff may review the materials the Middle District of Florida

makes available to pro se litigants, which includes a “Guide for Proceeding Without a

Lawyer.” The Court’s website also contains helpful links to the Federal Rules of Civil

Procedure, as well as to various forms for federal court litigants to use.

IV.

For the reasons set forth above, I respectfully recommend that the Court:

1. Deny the Plaintiff’s IFP Motion (Doc. 3) without prejudice;

2. Dismiss the Plaintiff’s complaint (Doc. 1) without prejudice;

3. Grant the Plaintiff leave to file, within thirty (30) days of the Court’s

Order, an amended complaint that properly pleads one or more cognizable causes of

action over which the Court has jurisdiction; and

4. Caution the Plaintiff that a failure to abide by this directive may result in

the dismissal of her case without further notice.

Respectfully submitted this 11th day of September 2024.

Nice boca "Ask

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

NOTICE TO PARTIES

A party has fourteen (14) days from this date to file written objections to the

Report and Recommendation’s factual findings and legal conclusions. A party’s

failure to file written objections, or to move for an extension of time to do so, waives

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

conclusion(s) the District Judge adopts from the Report and Recommendation. See

11th Cir. R. 3-1; 28 U.S.C. § 636(b)(1).

Copies to:

Honorable Mary S. Scriven, United States District Judge

Pro se Plaintiff

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