Petition for Writ of Certiorari — Dora L. Adkins, Petitioner v. Fitness International, LLC

App. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2297

DORA L. ADKINS,

Plaintiff - Appellant,

v.

FITNESS INTERNATIONAL, LLC,

Defendant - Appellee.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. Patricia

Tolliver Giles, District Judge. (l:22-cv-01130-PTG-WEF)

Submitted: February 21, 2023

Decided: February 23, 2023

Before NIEMEYER and DIAZ, Circuit Judges, and

MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Dora L. Adkins, Appellant Pro Se.

App. 2

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Dora L. Adkins appeals the district court’s order

adopting the recommendation of the magistrate judge,

denying her requests for leave to file an emergency

complaint and for leave to proceed on that complaint

in forma pauperis, and dismissing her case. We have

reviewed the record and find no reversible error. Ac­

cordingly, we grant Adkins’ motion to amend her infor­

mal brief and affirm for the reasons stated by the

district court. Adkins v. Fitness Int% LLC, No. l:22-cv01130-PTG-WEF (E.D. Va. Dec. 16, 2022). We deny Ad­

kins’ motions to reverse and remand, to vacate and re­

mand, to replace her motion to vacate and remand, and

to amend her motion to vacate and remand. We dis­

pense with oral argument because the facts and legal

contentions are adequately presented in the materials

before this court and argument would not aid the deci­

sional process.

AFFIRMED

App. 3

FILED: February 23, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2297

(l:22-cv-01130-PTG-WEF)

DORA L. ADKINS,

Plaintiff - Appellant,

v.

FITNESS INTERNATIONAL, LLC,

Defendant - Appellee.

JUDGMENT

In accordance with the decision of this court, the

judgment of the district court is affirmed.

This judgment shall take effect upon issuance of

this court’s mandate in accordance with Fed. R. App. P.

41.

/s/ PATRICIA S. CONNOR. CLERK

App. 4

FILED: February 28, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2297

(1:22-cv-01130-PTG-WEF)

DORA L. ADKINS,

Plaintiff - Appellant,

v.

FITNESS INTERNATIONAL, LLC,

Defendant - Appellee.

TEMPORARY STAY OF MANDATE

Under Fed. R. App. P. 41(b), the filing of a timely

petition for rehearing or rehearing en banc stays the

mandate until the court has ruled on the petition. In

accordance with Rule 41(b), the mandate is stayed

pending further order of this court.

/s/Patricia S. Connor. Clerk

App. 5

FILED: March 24, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2297

(1:22-cv-01130-PTG-WEF)

DORA L. ADKINS,

Plaintiff - Appellant,

v.

FITNESS INTERNATIONAL, LLC,

Defendant - Appellee.

ORDER

The petition for rehearing en banc was circulated

to the full court. No judge requested a poll under Fed.

R. App. P. 35. The court denies the petition for rehear­

ing en banc and the motions to amend the petition for

rehearing en banc.

For the Court

/s/ Patricia S. Connor. Clerk

App. 6

FILED: April 3, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-2297

(l:22-cv-01130-PTG-WEF)

DORA L. ADKINS,

Plaintiff - Appellant,

v.

FITNESS INTERNATIONAL, LLC,

Defendant - Appellee.

MANDATE

The judgment of this court, entered 02/23/2023,

takes effect today.

This constitutes the formal mandate of this court

issued pursuant to Rule 41(a) of the Federal Rules of

Appellate Procedure.

/s/Patricia S. Connor. Clerk

App. 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

DORA L. ADKINS,

Plaintiff,

v.

FITNESS

INTERNATIONAL, LLC,

Defendant.

)

)

)

)

)

)

)

)

l:22-cv-1130 (PTGAVEF)

ORDER

(Filed Dec. 16, 2022)

This matter comes before the Court on the Report

and Recommendation (“R&R”) from Magistrate Judge

William E. Fitzpatrick regarding Plaintiff’s Motion for

Leave from the Court to File an Emergency Complaint

(“Motion for Leave”) (Dkt. 1) and an Application to Pro­

ceed in District Court Without Prepaying Costs or Fees

(“IFP Application”) (Dkt. 2). On October 20, 2022,

Judge Fitzpatrick issued a Report and Recommenda­

tion regarding Plaintiff’s Motion for Leave and IFP

Application, recommending the Court deny the motion

and application. Dkt. 3.

When reviewing a magistrate judge’s Report and

Recommendation, the Court must make a de novo

determination of those portions of the R&R to which

objections, if any, are made. Fed. R. Civ. P. 72(b); 28

U.S.C. § 636(b)(1)(C). The Court is authorized to ac­

cept, reject, or modify, in whole or in part, the

App. 8

recommendations made by the magistrate judge. Id.

“[Objections must be specific and particularized in or­

der to direct the attention of the district court to ‘only

those issues that remain in dispute after the magis­

trate judge has made findings and recommendations. 5 »

United States v. Kotzev, No. l:18-cv-1409, 2020 WL

1217153, at *3 (E.D. Va. Mar. 11, 2020) (quoting United

States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007).

In this case, Plaintiff has timely objected to Judge

Fitzpatrick’s R&R in two separate filings (Dkts. 4, 5).

These objections essentially reiterate Plaintiff’s

claims of food and/or chemical poisoning stated in her

original Motion for Leave. See, e.g., Dkt. 4 at 2; Dkt. 5

at 2. Simply restating a previously made argument

does not satisfy the specificity requirement of objec­

tions. Abou-Hussein v. Maims, D.S.C. No. 2:09-1988,

2010 WL 4340935, at *1 (D.S.C. Oct. 28, 2010), aff’d,

414 Fed. Appx. 518 (4th Cir. 2011).

After reviewing the record and the objections to

the R&R, and having made de novo determinations

with respect thereto, the Court hereby OVERRULES

Plaintiff’s objections, and APPROVES and ADOPTS

IN FULL the findings Judge Fitzpatrick set forth in

the R&R (Dkt. 3). Accordingly, it is

ORDERED that Plaintiff’s Motion for Leave

(Dkt. 1) and IFP Application (Dkt. 2) are DENIED. It

is further

ORDERED that this matter be and is DIS­

MISSED WITH PREJUDICE.

App. 9

It is SO ORDERED.

Dated:

December 16, 2022

/s/ Patricia Tolliver Giles______

Patricia Tolliver Giles

United States District Judge

App. 10

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

DORA L. ADKINS,

Plaintiff,

v.

FITNESS

INTERNATIONAL, LLC,

Defendant.

)

)

)

) Civil Action No.

) l:22-cv-1130 (PTG/WEF)

)

)

)

REPORT & RECOMMENDATION

(Filed Oct. 20, 2022)

THIS MATTER comes before the Court on pro se

Plaintiff Dora L. Adkins’ (“Adkins”) Motion for Leave

from the Court to File an Emergency Complaint (“Mo­

tion”) (Dkt. 1) and Application to Proceed in District

Court Without Prepaying Costs or Fees (“IFP Motion”)

(Dkt. 2). The denial of an IFP motion may, in certain

circumstances, dispose of a case. Magistrate judges

therefore lack the authority to affirmatively deny such

motions. See Hunter v. Roventini, 617 F. App’x 225, 226

(4th Cir. 2015) (per curiam). Accordingly, the under­

signed issues this Report and Recommendation pursu­

ant to 28 U.S.C. § 636(b)(1)(C) and recommends that

Adkins’ IFP Motion (Dkt. 2) be denied. The under­

signed further recommends that the Court issue a pre­

filing order denying Adkins’ Motion. (Dkt. 1.)

App. 11

I.

IFP Motion

Pursuant to 28 U.S.C. § 1915, a federal court may

allow certain litigants to commence and prosecute a

civil action without paying the required fees. See

DeBlasio v. Gilmore, 315 F.3d 396, 398 (4th Cir. 2003).

The statute “is intended to ensure that indigent per­

sons have equal access to the judicial system by allow­

ing them to proceed without having to advance the fees

and costs associated with litigation.” See Justice v.

Hobgood, No. 5:13-CV-077-BR, 2014 WL 12495256, at

*1 (E.D.N.C. May 27, 2014) (citing Flint v. Haynes, 651

F.2d 970, 972 (4th Cir. 1981)). To qualify, an indigent

litigant must file an affidavit that includes statements

of the litigant’s assets and his inability to pay fees. See

28 U.S.C. § 1915(a)(1); Gilmore, 315 F.3d at 398. A liti­

gant need not prove that he or she is “absolutely desti­

tute to enjoy the benefit of the statute.” Adkins v. E.I.

DuPont de Nemours & Co., 335 U.S. 331, 339 (1948).

However, “IFP status is a privilege, not a right, and is

only available to a litigant who establishes an inability,

due to poverty, to pay the requisite filing fees and still

provide for the necessities of life.” El v. U.S. Dep’t of

Commerce, No. 2:15-cv-532, 2016 WL 9223874, at *1

(E.D. Va. Sept. 21, 2016) (citation and internal quota­

tions omitted). While not entirely dispositive, courts

consistently rely on the current federal poverty guide­

line to evaluate an IFP motion. See, e.g., id. at *1; Jus­

tice, 2014 WL 12495256, at *3. The federal poverty

guideline for a single-person household is currently

$13,590. See Annual Update of HHS Poverty Guide­

lines, 87 Fed. Reg. 3315 (Jan. 21, 2022).

App. 12

Here, Adkins reports a monthly income of

$4,929.86, which translates to an annual income of

$59,158.32. (Dkt. 2.) Accordingly, Adkins' annual in­

come is over four times that of the current poverty

guideline for a single-family household. Even ifAdkins’

household were larger than a single-family household,

her annual income would still be significantly above

the current poverty line. For instance, Adkins’ annual

income is approximately double that of the guideline

for a five-person household. While Adkins does refer­

ence difficulties due to homelessness, id. at 5, those dif­

ficulties do not convince the undersigned that she

should qualify for IFP status. Adkins also owns a 2021

Mercedes-Benz GLA-250 valued at $35,000. Id. at 3.

Based on these facts, the undersigned believes that Ad­

kins could pay the filing fee and still provide for the

necessities of life.

Therefore, the undersigned RECOMMENDS that

the IFP Motion (Dkt. 2) be denied.

II.

Motion for Leave from the Court to File

an Emergency Complaint

On October 1, 2021, this Court entered a Pre-Fil­

ing Injunction Order against Adkins given her “exten­

sive history of filing unsubstantiated lawsuits for the

alleged injuries connected to food or chemical poison­

ing.” Adkins v. Hyatt Corp., l:20-cv-1410-AJT-MSN,

Doc. No. 41 at 4. The Order enjoined Adkins from filing

any complaints related to these allegations of food or

chemical poisoning without leave of the Court. Id.

App. 13

Here, the emergency complaint alleges that cer­

tain LA Fitness gyms in northern Virginia caused her

physical and emotional injuries through, inter alia,

being “sprayed with chemical poisoning.” (Dkt. 1-1.)

Specifically, Adkins alleges her vehicle was “sprayed

with chemical poisoning” while parked at the gym and

she “became ill after re-entering [the] vehicle.” Id. Ad­

kins asserts a cause of action for intentional infliction

of emotional distress against Fitness International,

LLC. Id. These factual and legal contentions are con­

sistent with Adkins’ “extensive history of filing unsub­

stantiated lawsuits for the alleged injuries connected

to food and chemical poisoning” underlying the Court’s

pre-filing injunction. Id. Therefore, the Court’s pre-fil­

ing injunction applies here.1

The issue remains whether the Court should grant

leave to Adkins to file the emergency complaint. A re­

view of the Motion shows that the emergency com­

plaint reiterates the facts and claims related to and

including chemical poisoning rejected by this Court

in previous cases. See, e.g., Adkins v. Merrifield Hotel

Associates, L.P., l:22-cv-399-AJT-IDD, [Doc. No. 3] at 1.

The undersigned therefore finds that Plaintiff fails to

1 In addition to the pre-filing injunction, in a recent case

brought by the Plaintiff, Adkins v. American Service Center Asso­

ciates, LLC, l:22-cv-00956-LMB-WEF, this Court recognized

Adkins as “a serial filer of frivolous lawsuits,” and dismissed the

suit for lack of any plausible cause of action. Id., Doc. No. 3. More­

over, the Court ordered the Clerk not accept any further motions

for leave to file a complaint or attempt to file a new civil action by

Adkins unless she first pays the required filing fees. Id.

App. 14

state a cognizable claim for relief and that leave from

the Court is not warranted.

Accordingly, the undersigned RECOMMENDS

that the Court issue a pre-filing order denying Plain­

tiff’s Motion. (Dkt. 1.)

III.

Notice

The parties are notified that objections to this pro­

posed findings of fact and recommendations must be

filed within 14 days of service of these proposed find­

ings of fact and recommendations in accordance with

28 U.S.C. § 636(b)(1)(C) and a failure to file timely ob­

jections waives appellate review of the substance of

these proposed findings of fact and recommendations

and waives appellate review of any judgment or deci­

sion based on these proposed findings of fact and rec­

ommendations.

The Clerk is directed to send a copy of this Report

and Recommendation to Plaintiff and counsel of record.

/s/ William E. Fitzpatrick_____

WILLIAM E. FITZPATRICK

UNITED STATES

MAGISTRATE JUDGE

October 20, 2022

Alexandria, Virginia