United States District Court, S.D. Alabama, Southern Division
ROBERT W. JOHNSON, Plaintiff,
v.
VICTORIA FIRE & CASUALTY COMPANY, et al., Defendants.
REPORT AND RECOMMENDATION
P.
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
This
action is before the Court on Plaintiff's amended pro
se complaint (Doc. 5) and his motion to proceed without
prepayment of fees and costs (Doc. 2), as amended (Doc. 4).
This matter has been referred to the undersigned for pretrial
disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and
General Local Rule 72(a)(2)(S). Upon consideration of all
relevant pleadings filed in this case, it is recommended that
this Court DENY Plaintiff's motion to
proceed without prepayment of fees (Doc. 2), as amended (Doc.
4), and it is further recommended that this action be
DISMISSED WITHOUT PREJUDICE, prior to
service of process, both because Plaintiff has failed to
establish that this Court can exercise federal question
jurisdiction in this matter and because he has failed to
state a claim upon which relief can be granted, see
28 U.S.C. § 1915(e)(2)(B)(ii) (recognizing that a
complaint may be dismissed for failure to state a claim upon
which relief may be granted).
I.
PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
(SEE DOC. 2), AS AMENDED (DOC. 4)
On
April 3, 2019, the undersigned ordered Plaintiff to complete
and return this Court's form motion to proceed without
prepayment of fees and costs. (Doc. 3, at 1). Johnson's
initial motion (Doc. 2) was not on this Court's form
(Doc. 3, at 1) and, in addition, as parenthetically noted by
the undersigned, Plaintiff simply stated in “a
one-paragraph note to the Clerk of Court that he is ‘a
poor person with no income as of to date.' (Doc.
2.)” (Doc. 3, at 1 n.1). And while Johnson completed
all sections of this Court's IFP form (see Doc.
4), he has given this Court only slightly more information
than that contained in his note to the Clerk of Court filed
March 29, 2019 (Doc. 2). In both motions, Johnson gives his
address (3345 Fish Avenue, Apt. 1, Bronx, New York 10469), a
brief statement of his action, and that he is a poor person
with no income. (Compare Doc. 2 with Doc.
4, at 1 & 3). The only “real” additional
information Johnson has presented in his amended IFP motion
is that he is a single individual with no dependents and the
last date he was employed was in October 2012, when he
received $150.00 monthly. (Doc. 4, at 1-2). Otherwise,
Johnson's IFP is remarkable for a lack of information
because although he has identified that he lives in an
apartment in Bronx, New York (id. at 1), he states
that he makes absolutely no monthly rental payments on the
apartment (id. at 3), he has no assets or property
(id. at 2-3), and he has no financial debts or
obligations (id. at 3). And yet, despite indicating
that he has absolutely no assets or income, Johnson eschewed
answering how he provided for his basic living needs of
shelter, food, and clothing;[1]instead, he simply wrote the
following: “I am a poor person with no income and due
to above-said legal issues I am unable to provide for myself.
. . . I am in dire need of above-said total punitive damages
relief due to my 14th Amendment rights being
violated.” (Id. at 3.)
The
authority for granting a plaintiff permission to proceed
without prepayment of fees and costs is found at 28 U.S.C.
§ 1915:
(a)(1) Subject to subsection (b), any court of the United
States 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, by a person who submits an affidavit that includes
a statement of all assets such [person] possesses [and] that
the person is unable to pay such fees or give security
therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant's belief that the
person is entitled to redress.
28 U.S.C. § 1915(a)(1); see Troville v. Venz,
303 F.3d 1256, 1260 (11th Cir. 2002) (affirming the
application of § 1915's provisions to a
non-prisoner's complaint).
“The
in forma pauperis statute, 28 U.S.C. § 1915,
ensures that indigent persons will have equal access to the
judicial system.” Attwood v. Singletary, 105
F.3d 610, 612-613 (11th Cir. 1997), citing Coppedge v.
United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-922,
8 L.Ed.2d 21 (1962). The opportunity to proceed as an
indigent in civil cases, created by statute, is not
considered a right but a privilege, Rivera v. Allin,
144 F.3d 719, 724 (11th Cir.), cert. dismissed, 524
U.S. 978, 119 S.Ct. 27, 147 L.Ed.2d 787 (1998), and
“should not be a broad highway into the federal
courts[, ]” Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984). Thus, “a trial court has
broad discretion in denying an application to proceed in
forma pauperis under 28 U.S.C.A. § 1915, [but] must
not act arbitrarily and it may not deny the application on
erroneous grounds.” Pace v. Evans, 709 F.2d
1428, 1429 (11th Cir. 1983), citing Flowers v. Turbine
Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975);
see also Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1306 & 1306-1307 (11th Cir. 2004) (“[A] trial
court has wide discretion in denying an application to
proceed IFP under 28 U.S.C. § 1915. . . . However, in
denying such applications a court must not act arbitrarily.
Nor may it deny the application on erroneous
grounds.”).
“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.” Boubonis v. Chater, 957 F.Supp.
1071, 1072 (E.D. Wis. 1997), citing 28 U.S.C. § 1915(a)
& (e)(2)(B)(i). “While one need not be absolutely
destitute to qualify for in forma pauperis status,
such benefit is allowed only when a movant cannot give such
costs and remain able to provide for herself and her
dependents.” Mitchell v. Champs Sports, 42
F.Supp.2d 642, 648 (E.D. Tex. 1998) (citations omitted).
“The question under 28 U.S.C. § 1915 is whether
the litigant is ‘unable to pay' the costs, and the
answer has consistently depended in part on [the]
litigant's actual ability to get funds from a spouse, a
parent, an adult sibling, or other next friend.”
Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md.
1978); see Fridman v. City of New York, 195
F.Supp.2d 534, 537 (S.D.N.Y. 2002) (“In assessing an
application to proceed in forma pauperis, a court may
consider the resources that the applicant has or ‘can
get' from those who ordinarily provide the applicant with
the ‘necessities of life,' such as ‘from a
spouse, parent, adult sibling or other next friend.' . .
. If it appears that an applicant's ‘access to []
court has not been blocked by his financial condition; rather
[that] he is “merely in the position of having to weigh
the financial constraints imposed if he pursues [his
position] against the merits of his case, ”' then a
court properly exercises its discretion to deny the
application.”). In Martinez, supra, the
Eleventh Circuit determined that affidavit statements
satisfying the requirement of poverty should be accepted by
the trial court “absent a serious misrepresentation,
and need not show that the litigant is ‘absolutely
destitute' to qualify for indigent status under §
1915.” 364 F.3d at 1307 (citation omitted); see
also id. (“Such an affidavit will be held
sufficient if it represents that the litigant, because of his
poverty, is unable to pay for the court fees and costs, and
to support and provide necessities for himself and his
dependents.”).
Upon a
review of the Plaintiff's IFP motion (Doc. 2), as amended
on April 12, 2019 (Doc. 4), the undersigned
RECOMMENDS that the Court exercise its broad
discretion to DENY this motion due to
Plaintiff's failure to provide this Court with critical
requested information regarding how he provides for his basic
living needs in light of his specific representation to this
Court that he has absolutely no assets or income
(see Doc. 4, at 3). In other words, Plaintiff has
not explained how he lives in an apartment at 3345 Fish
Avenue, Bronx, New York (id. at 1), see
https://www.realtor.com/realestateandhomes-detail/3345-Fish-Ave
(reflecting that the property is a multi-family home built in
1930 with an estimated value of $627, 300) (last visited,
April 29, 2019, at 2:07 p.m.), yet makes no monthly rental
payment on that apartment (Doc. 4, at 3). Moreover, the
motion does not make clear how a single male can live in such
an apartment rent-free and also provide for his food,
clothing, and other living necessities, much less pay the
utilities on the apartment, when he has had no employment for
more than six years, has no assets or property, yet also
(curiously) no financial debts or obligations. (See
Id. at 1-3.) The only logical explanation for how
Plaintiff provides for his basic living needs (that is,
shelter, food, clothing, etc.) is that he lives with a family
member (or members) or other next friend who provide for
those basic needs. However, because Plaintiff has not
provided this critical information, though it was requested
of him (see Id. at 3 (“If you have indicated
that you have minimal or no assets or income, please explain
how you provide for your basic living needs such as food,
clothing, and shelter. (e.g. food stamps, family
assistance or charitable contributions.)”)), this Court
has no ability to determine whether Plaintiff lives with a
family member(s) or other next friend who is able to pay the
filing fee and other related costs without being deprived of
the basic necessities of life. See Martinez, supra,
364 F.3d at 1307; compare Id. with, e.g., Williams,
supra, 455 F.Supp. at 209 (under § 1915, the answer
to whether a litigant is unable to pay depends “in part
on [the] litigant's actual ability to get funds from a
spouse, a parent, an adult sibling, or other next
friend” (emphasis added)) and Fridman, supra,
195 F.Supp.2d at 537 (“In assessing an application to
proceed in forma pauperis, a court may consider the resources
that the applicant has or ‘can get' from those who
ordinarily provide the applicant with the ‘necessities
of life,' such as ‘from a spouse, parent, adult
sibling or other next friend.'” (emphasis added)).
Accordingly, given Johnson's calculated decision to not
provide this Court with the just-mentioned critical
information, the undersigned RECOMMENDS that
the Court DENY Plaintiff's IFP motion
(Doc. 2), as amended (Doc. 4).
II.
PLAINTIFF'S AMENDED COMPLAINT (DOC. 5).
By
previous order entered on April 3, 2019, the undersigned also
identified various deficiencies in Plaintiff's original
complaint that he needed to remedy in an amended complaint.
(Doc. 3, at 1-4; compare Id. with 1
(complaint)).[2] In particular, the undersigned explained
to Plaintiff that though his complaint, filed March 29, 2019,
contained a statement of the grounds for the Court's
jurisdiction (Doc. 1, at 2-4), it was unclear whether
Plaintiff was asserting “both diversity jurisdiction,
in accordance with 28 U.S.C. § 1332, and federal
question jurisdiction under 28 U.S.C. § 1331 or
just federal question
jurisdiction[.]” (Doc. 3, at 2 (footnote omitted)). The
undersigned went on to explain the three different types of
subject-matter jurisdiction that a federal district court may
exercise (Doc. 3, at 2 n.3), [3] that Johnson bore the burden of
proving the existence of federal jurisdiction (id.
at 2), and, more specifically, that he was required to
“'affirmatively allege facts demonstrating the
existence of jurisdiction.'” (Id., n.3,
quoting Cornelius v. U.S. Bank Nat'l Ass'n,
452 Fed.Appx. 863, 865 (11th Cir. Nov. 29, 2011), in turn
quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th
Cir. 1994)). In addition, the April 3, 2019 Order further
explained to Johnson that his original complaint did not
contained a short and plain statement of the claim showing he
was entitled to relief, as required by Fed.R.Civ.P. 8(a)(2),
as the Court was unsure “of the exact nature of the
claim or claims Mr. Johnson seeks to assert against Victoria
Fire & Casualty Company and Nationwide Insurance, given
that it appears that neither of these companies insured the
purported tortfeasor (Maureen Fabre) or exercised any control
over her.” (Doc. 3, at 3.) As a result, Johnson was
instructed to “identify all relevant facts in support
of his claim or claims in separately-numbered paragraphs and
also specifically (and separately) identify the claim or
claims asserted against Victoria Fire & Casualty Company,
as well as Nationwide Insurance, and his right to exercise
each identified claim (and his right to recovery as to each
claim) based on the relevant facts.” (Id. at 4
(footnotes omitted)). Parenthetically, Johnson was
specifically instructed to inform the Court which driver (the
alleged tortfeasor, Maureen Fabre, or the driver of the
vehicle in which he was a passenger, that is, Demetrius
Moore) was insured by Victoria Fire & Casualty Company
and Nationwide; make clear that Maureen Fabre was the
individual who had a suspended driver's license; and make
clear whether he was seeking to make a claim against
Demetrius Moore's uninsured (underinsured, or other)
policy provisions. (See Id. at 3 & 4 ns. 4 &
8.)[4]
Plaintiff's
amended complaint filed April 26, 2019 (Doc. 5), the
operative pleading in this case (see Doc. 3, at
4-5), contains the following jurisdictional statement, which
is set forth at the end of the amended complaint in
conjunction with his request for relief: “Relief sought
by Plaintiff is Punitive Damages in the amount of $100
million dollars, in total for above-said action, under 28
U.S.C. § 1331 Federal Question.” (Doc. 5, at 6.)
Plaintiff claims in his amended complaint that the Defendants
violated his due process rights and negligently investigated
his claim without conducting a hearing. (See Doc. 5,
at 2-6.)
A.
Subject-Matter ...