Brown v. Girgenti

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DEVIN BROWN,

Plaintiff,

v. Case No. 8:24-cv-02061-KKM-AAS

JAMIE GIRGENTI, et al.,

Defendants,

_________________________________/

REPORT AND RECOMMENDATION

Plaintiff Devin Brown requests to proceed in forma pauperis. (Doc. 3). It

is RECOMMENDED that Mr. Brown’s motion to proceed in forma pauperis

be DENIED, and the complaint be dismissed without prejudice.

I. STANDARD OF REVIEW

To authorize a litigant to proceed in forma pauperis, the court must make

two determinations: first, whether the litigant is unable to pay the costs of

commencing this action; and second, whether the action is frivolous or

malicious. 28 U.S.C. § 1915(a) & (e)(2)(B)(i). 28 U.S.C. § 1915(e)(2)(B) requires

the court to dismiss a case if it determines that an 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.”

“A claim is frivolous ‘where it lacks an arguable basis either in law or

fact.’” Nezbeda v. Liberty Mut. Ins. Corp. (LIC), 306 F. Supp. 3d 1335, 1338

(N.D. Ga. 2017), aff’d sub nom. Nezbeda v. Liberty Mut. Ins. Corp., 789 F. App’x

180 (11th Cir. 2019) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). A

plaintiff does not state a claim under § 1915(e)(2)(B)(ii) when the facts as

pleaded do not state a claim for relief that is plausible on its face. Thompson v.

Rundle, 393 F. App’x 675, 678 (11th Cir. 2010) (citing Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

The court recognizes Mr. Brown is pro se, and therefore has an obligation

to construe his pleadings liberally. Tannenbaum v. United States, 148 F.3d

1262, 1263 (11th Cir. 1998). However, this liberal construction does not allow

the court to act as de facto counsel or rewrite otherwise deficient pleadings for

a pro se litigant. GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369

(11th Cir. 1998).

II. ANALYSIS

The undersigned reviewed Mr. Brown’s complaint under the pleading

standards articulated above and the requirements of § 1915. Mr. Brown

attempts to raise claims against Jamie Girgenti, Esq., and the law firm Older,

Lundy, Kich & Martino (collectively, the defendants), who represented the

opposing party in a child support action against Mr. Brown. (Doc. 1, p. 9). At

issue here is a state court decision apportioning part of Mr. Brown’s veteran’s

benefits to the defendants for travel expenses and legal fees. (Id.).1

First, § 1983 creates no substantive rights. See Baker v. McCollan, 443

U.S. 137, 140, 144 n.3 (1979). Rather, § 1983 provides a vehicle through which

an individual may seek redress when his federally protected rights have been

violated by an individual acting under color of state law. See Livadas v.

Bradshaw, 512 U.S. 107, 132 (1994) (citations omitted). To state a claim for

relief under § 1983, a plaintiff must satisfy two elements. First, a plaintiff must

allege that an act or omission deprived him of a right, privilege, or immunity

secured by the Constitution of the United States. Hale v. Tallapoosa Cnty., 50

F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or

omission was committed by a state actor or a person acting under color of state

law. Id. “A person acts under color of state law when he acts with authority

possessed by virtue of his employment with the state,” Griffin v. City of Opa–

Locka, 261 F.3d 1295, 1303 (11th Cir. 2001), or when “the manner of his

conduct . . . makes clear that he was asserting the authority granted him and

not acting in the role of a private person.” Williams v. United States, 341 U.S.

97, 100 (1951).

1 Mr. Brown also filed a twenty-one-page “Initial Brief in Support of Complaint Under

42. U.S.C. 1983.” (Doc. 2). The brief contains more than legal argument; it contains

factual allegations not found in the complaint. (Id.). The complaint is the operative

pleading in a case that governs the claims and allegations here. Regardless, Mr.

Brown’s brief does not address the issues identified in this order.

Here, even if the court were to presume Mr. Brown sufficiently alleged

the violation of a federal right, which he has not, Mr. Brown has proffered no

allegations to indicate the defendants acted with the authority of the state

beyond Mr. Brown’s conclusory allegations. Rather, it appears the defendants’

actions were performed in the capacity as a private attorney. Private attorneys

who represent individuals in court proceedings, however, do not act under the

color of state law. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Huls v.

Llabona, 437 F. App’x 830, 832 (11th Cir. 2011) (holding that a private attorney

representing a client in a private civil matter is not a state actor for purposes

of § 1983); Hale v. King, No. 5:11-cv-610-Oc-29TBS, 2012 WL 84820, at *2 n.2

(M.D. Fla. Jan. 11, 2012) (“A private attorney is not a person acting under the

color of state law.”). Thus, Mr. Brown’s § 1983 claim fails.

While Mr. Brown’s complaint lists several statutes as the basis for

jurisdiction, he fails to explain how these statutes provide a basis for this

court’s subject matter jurisdiction. (Doc. 1, p. 8). Listing many statutes without

explaining how they connect to Mr. Brown’s claims is conclusory and

insufficient to establish subject matter jurisdiction. See, e.g., Richardson v.

Park Soleil Vacation Owners Ass’n, Inc., No. 6:17-cv-940-Orl-41TBS, 2017 WL

6389670, at *3 (M.D. Fla. July 17, 2017), report and recommendation adopted,

2017 WL 6373924 (M.D. Fla. Dec. 13, 2017) (“Plaintiff lists several federal

statutes and tangentially mentions 15 U.S.C. § 6102 and FICO, but these

conclusory references fall well short of establishing federal question

jurisdiction.”); Brandywine Homes Georgia, LLC v. Steele, No. 1:15-cv-03512-

WSD-AJB, 2015 WL 13720148, at *2 (N.D. Ga. Oct. 21, 2015), report and

recommendation adopted, 2016 WL 8711517 (N.D. Ga. Jan. 8, 2016)

(“[Plaintiff] also asserts that the Court may exercise federal-question

jurisdiction over the matter but simply lists a number of federal statutes

without indicating how they relate to her case.”).

Another reason for preclusion of this action is the Rooker-Feldman

abstention doctrine. Rooker v. Fid. 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). If Mr. Brown requests that the court vacate or

modify a state court decision, Mr. Brown’s claims are barred.

Finally, Mr. Brown has a history of filing repetitive and frivolous

litigation. Indeed, Mr. Brown filed other actions in this district raising similar

allegations. Each action of these actions has been dismissed. See, e.g., Brown

v. McLeod, No. 8:23-CV-741-CEH-NHA, 2024 WL 1744304 (M.D. Fla. Apr. 1,

2024), report and recommendation adopted, No. 8:23-CV-741-CEH-UAM, 2024

WL 1743322 (M.D. Fla. Apr. 23, 2024);2 Brown v. McLeod, No. 8:23-CV-741-

CEH-JSS, 2023 WL 7482757 (M.D. Fla. July 24, 2023), report and

recommendation adopted, No. 8:23-CV-741-CEH-JSS, 2023 WL 6476096 (M.D.

Fla. Oct. 5, 2023); Brown v. Brown-Spencer, No. 8:22-CV-02918-MSS-MRM,

2023 WL 2931757, (M.D. Fla. Jan. 25, 2023), report and recommendation

adopted sub nom. Brown v. Brown-Spender, No. 8:22-CV-2918-MSS-MRM,

2023 WL 2931696 (M.D. Fla. Feb. 13, 2023).

The defects in Mr. Brown’s complaint are incurable and leave to amend

would be futile. See Conventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th

Cir. 2010) (“A proposed amendment may be denied for futility when the

complaint as amended would still be properly dismissed.”). When a plaintiff

cannot meet the second element of the in forma pauperis analysis—by showing

that the complaint is neither frivolous nor malicious—the court “need not reach

a determination on the issue of whether [the plaintiff] is unable to pay the costs

of commencing this action.” See Young v. Marshall, No. CV 20-0495-JB-MU,

2020 WL 7701517, at *2 (S.D. Ala. Dec. 4, 2020), report and recommendation

adopted, No. CV 20-0495-JB-MU, 2020 WL 7700580 (S.D. Ala. Dec. 28, 2020)

(declining to review the plaintiff’s inconsistent and incomplete motion to

2 Attorney Philip McLeod was previous employed by Defendant Older, Lundy, Kich

& Martino, and represented the party opposite Mr. Brown in a child support action.

(Doc. 1, p. 9).

proceed in forma pauperis because the plaintiff lacked standing to bring her

asserted claims).

Ill. CONCLUSION

Accordingly, for the reasons stated above, it is RECOMMENDED that

Mr. Brown’s motion to proceed in forma pauperis (Doc. 3) be DENIED, and

this action be dismissed without prejudice.

ORDERED in Tampa, Florida on September 18, 2024.

Aranda, Agno Sarma

AMANDA ARNOLD SANSONE |

United States Magistrate Judge

NOTICE TO PARTIES

The parties have fourteen days from the date they are served a copy of

this report to file written objections to this report’s proposed findings and

recommendations or to seek an extension of the fourteen-day deadline to file

written objections. 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. A party’s failure to

object timely under 28 U.S.C. § 636(b)(1) waives that party’s right to challenge

on appeal the district court’s order adopting this report’s unobjected-to factual

findings and legal conclusions. 11th Cir. R. 3-1.