United States District Court, N.D. Alabama, Southern Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
T. MICHAEL PUTNAM, Magistrate Judge.
On January 21, 2015, Elmore Cook, Jr. ("Plaintiff") filed a complaint in this court against James Butler, an assistant district attorney for Jefferson County. (Doc. 1). The complaint was accompanied by the plaintiff's application for leave to proceed in forma pauperis, which was granted by court order dated February 6, 2015. This matter was assigned to the undersigned magistrate judge for a preliminary review and recommendation. For the reasons explained below, the magistrate judge recommends that this action be dismissed.
Pursuant to 28 U.S.C. § 1915(a), an indigent party to a civil action may seek leave from the court to file the action and prosecute it without the prepayment of docket and filing fees. If granted, however, the complaint or pleading filed is subject to screening and dismissal by the court for legal frivolousness or maliciousness. See 28 U.S.C. § 1915(e)(2). "A case is frivolous if (1) the factual allegations are clearly baseless' or (2) it is based on an indisputably meritless legal theory.'" Smith v. Hildebrand, 244 Fed.Appx. 288, 290 (11th Cir. 2007) (quoting Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)). The Eleventh Circuit Court of Appeals has noted that a lawsuit may be deemed frivolous where "the plaintiff's realistic chances of ultimate success are slight." Clark v. Georgia Pardons and Paroles Board, 915 F.2d 636, 639 (11th Cir. 1990).
One district court explained screening pursuant to § 1915 as follows:
The screening process under 28 U.S.C. § 1915(e)(2)(B) applies to pro se litigants who are proceeding in forma pauperis. Boyington v. Geo Group, Inc., 2009 WL 3157642 (M.D. Fla.), citing Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (dismissals under 28 U.S.C. 1915 apply to non-prisoners, even if fee assessment provisions do not). "In order 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." Dycus v. Astrue, 2009 WL 47497, at *1 (S.D. Ala. 2009). An application to proceed in forma pauperis may be denied if the plaintiff either fails to satisfy the poverty requirement or if plaintiff's claim is frivolous. Martinez v. Kristi Kleaner's Inc., 364 F.3d 1305, 1306 (11th Cir. 2004); see also Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997) (stating that a court may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious).
A claim is frivolous if it is based on an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 317 (1989) (applying section 1915). This circuit has defined a frivolous claim under section 1915 as being one "without arguable merit." Harris v. Menendez, 817 F.2d 737, 739 (11th Cir. 1987) (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976)). "Arguable means capable of being convincingly argued." Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (per curiam) ( quoting Menendez, 817 F.2d at 740 n. 5); see Clark v. State of Ga. Pardons and Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990) (lawsuit is frivolous if the plaintiff's chances of ultimate success are slight); see also Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996) (stating that [f]actual allegations are frivolous for purpose of [28 U.S.C.] 1915(d) when they are clearly baseless; legal theories are frivolous when they are indisputably meritless.") (citations omitted).
Withey-Martin v. Liverman, 1:12-cv-53-MP-GRJ, 2012 WL 913384 (N.D. Fla. Mar. 8, 2012) report and recommendation adopted, 1:12-cv-53-MP-GRJ, 2012 WL 913282 (N.D. Fla. Mar. 18, 2012). Although a pro se litigant's allegations are entitled to the benefit of liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), the court does not have "license... to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) ( overruled on other grounds by Iqbal ).
A review of the instant pleading makes plain that it is legally frivolous and subject to dismissal. In the initial filing, the plaintiff argues that he was denied access to the Jefferson County Veterans Treatment Court ("Veterans Court"), which violated his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. He does not allege how being denied access to Veterans Court violates his constitutional rights other than to say that veterans (presumably, himself included) were discriminated against based on "race, creed, " and "color." (Doc. 1, p. 3). The court, therefore, construed the complaint to allege a claim under 42 U.S.C. § 1983 for violation of the plaintiff's Fourteenth Amendment right to equal protection under the law. (Doc. 5).
In an Order dated February 6, 2015, the undersigned directed the plaintiff to "amend his complaint to clearly set out all facts that he believes support the claim that his denial of admission to the Program was racially motivated, " and further directed him to set out "any claims he wishes to raise in addition to his claim under 42 U.S.C. § 1983, and all supporting facts." (Doc. 5). The plaintiff filed his response to the court's order on February 26, 2015. (Doc. 6). The Amended Complaint also fails to set out any cognizable claim. The plaintiff failed to put forth any factual allegations supporting his claim of race-based discrimination. In fact, the plaintiff removed from his Amended Complaint any mention of race, simply stating that some veterans are allowed to proceed through Veterans Court while some are not. (Doc. 6, p. 3). The only relief requested by the plaintiff is that the defendant explain why some veterans are "routinely being denied" access to Veterans Court while others are allowed to proceed through the program. Because the plaintiff has essentially produced no factual allegations, his claim cannot support a cause of action and is due to be dismissed as frivolous.
A. Plaintiff Asserts No Statutory Right to Veterans Court
The plaintiff claims that not being approved to participate in Veterans Court violates his constitutional rights. However, the plaintiff has not alleged any statutory provision granting veterans the right to participate in an alternative court system. The fact that the plaintiff was not approved for the program does not create a legal claim. The plaintiff must at least allege that he has a statutory right to participate in Veterans Court or that he was not approved for the program for some statutorily impermissible reason. The plaintiff has done neither. Because the plaintiff has not asserted any cognizable right to participate in Veterans Court, his legal theory is indisputably meritless, rendering his claim frivolous and due to be dismissed.
B. Plaintiff Failed to Allege Discrimination
Although the court is unable to determine precisely what claim the plaintiff is attempting to make, it seems that the plaintiff believes he was denied access to Veterans Court because of his race. Denying the plaintiff access to Veterans Court based on his race would violate his Fourteenth Amendment right to equal protection under the laws. However, the plaintiff has stated no facts to support a claim that denying him entry into the program was racially motivated. Alone, the statement "my federally-protected rights have been violated, " is not sufficient to create a cause of action. The allegation must be supported by ...