Opinion
3:22-cv-389-TJC-MCR
04-27-2022
JAMES FISHER, Plaintiff, v. STATE OF FLORIDA and CIRCUIT JUDGE STEVEN FAHLGREN, Defendants.
“Within 14 days after being served with a copy of [this Report and Recommendation], a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2). “A party may respond to another party's objections within 14 days after being served with a copy.” Id. A party's failure to serve and file specific objections to the proposed findings and recommendations alters the scope of review by the District Judge and the United States Court of Appeals for the Eleventh Circuit, including waiver of the right to challenge anything to which no specific objection was made. See Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.
MONTE C. RICHARDSON UNITED STATES MAGISTRATE JUDGE
THIS CAUSE is before the Court on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) (“Application”) (Doc. 2). For the reasons stated herein, the undersigned recommends that the Application be DENIED and the case be DISMISSED without prejudice.
The Court may, upon a finding of indigency, authorize the. commencement of an action without requiring the prepayment of costs, fees, or security. 28 U.S.C. § 1915(a)(1). The Court's decision to grant in forma pauperis status is discretionary. See Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983). While a litigant need not show that he is “absolutely destitute” to qualify for pauper status under Section 1915, a litigant does need to show an inability “to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004).
The undersigned has reviewed Plaintiff's Application and finds it to be deficient because it is illegible, internally inconsistent, and not notarized. (See Doc. 2.) Although the Court would normally give Plaintiff an opportunity to file an amended, notarized Application or pay the appropriate filing fee, it would be futile to do so here, because Plaintiff's Complaint is due to be dismissed for the reasons stated below.
It is settled that even when a plaintiff is indigent, a court receiving an application to proceed in forma pauperis must dismiss the action sua sponte if the action “(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.” 28 U.S.C. § 1915(e)(2)(B). In addition, the court must dismiss the action sua sponte if it “determines at any time that it lacks subject-matter jurisdiction.” Fed.R.Civ.P. 12(h)(3); see also Blankenship v. Gulf Power Co., 551 Fed.Appx. 468, 470 (11th Cir. Nov. 20, 2013) (per curiam) (same); Walker v. Sun Trust Bank of Thomasville, GA, 363 Fed.Appx. 11, 15 (11th Cir. Jan. 19, 2010) (per curiam) (“[A] district court may sua sponte consider whether it has subject matter jurisdiction over a plaintiff's claims.”).
Subject matter jurisdiction in a federal court may be based upon federal question jurisdiction or diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Diversity jurisdiction exists where the plaintiffs and defendants are citizens of different states, and the amount in controversy exceeds $75,000.... Absent diversity of citizenship, a plaintiff must present a substantial federal question in order to invoke the district court's jurisdiction.Walker, 363 Fed.Appx. at 15 (internal quotation marks omitted).
“The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6), ” and, therefore, courts apply the same standard in both contexts. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). An action fails to state a claim on which relief may be granted if it fails to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Harper v. Lawrence Cnty., Ala., 592 F.3d 1227 (11th Cir. 2010) (citing Fed.R.Civ.P. 8(a)(2), 12(b)(6)). To show entitlement to relief, Plaintiff must include a short and plain statement of facts in support of his claims. Fed.R.Civ.P. 8(a). This statement of facts must show the plausibility of Plaintiff's claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[L]abels and conclusions” are not enough to satisfy the “plausibility” standard. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Further, the pleadings of pro se litigants must be construed liberally and “are held to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 448 U.S. 5, 9 (1980) (per curiam); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (stating that pleadings submitted by pro se parties “are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed”). Courts are under no duty, however, to “re-write” a plaintiff's complaint to find a claim. Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).
Here, the Complaint alleges that on March 28, 2022, a petition was filed against Plaintiff in state court, which included “nothing but lies.” (Doc. 1 at 3.) Judge Fahlgren, who is Defendant in this action, allegedly issued a temporary restraining order (“TRO”) against Plaintiff. (Id.) Plaintiff notes that the state court petition was filed by a mentally unstable person who had not taken medication but, instead, had self-medicated with illegal street drugs. (Id.) The Complaint further alleges that Defendant is “guilty of criminal facilitation of perjury in an official proceeding.” (Id.) As relief, Plaintiff requests 500 million dollars in damages for undue stress; that Judge Fahlgren be removed from his job because he is allegedly unable to properly perform his job and comply with the law; and that the state court case be dismissed with prejudice. (Id. at 4.) Plaintiff alleges that he is entitled to relief on the following grounds: (1) Defendant is a circuit court judge who knows the law and cannot use his job position to help break the law; and (2) Defendant waived immunity by using his job/position to assist in the commission of a third-degree felony. (Id. at 5.)
Although the Complaint also names the “State of Florida” as a party Defendant, there are no allegations against the State of Florida aside from those asserted against Judge Fahlgren.
Even when construed liberally, Plaintiff's Complaint is subject to dismissal for failure to state a claim on which relief may be granted and/or for seeking monetary relief against a defendant who is immune from such relief. The Complaint fails to state a claim on which relief may be granted, because Judge Fahlgren is entitled to immunity from Plaintiff's claims. Although the Complaint does not specify whether this action is brought against Judge Fahlgren in his individual capacity or in his official capacity, the outcome would be the same.
Assuming that Plaintiff is suing Judge Fahlgren in his official capacity, the claims are barred by Eleventh Amendment immunity and should be dismissed. See Price v. Stone, No. 4:11-cv-40 CDL-MSH, 2011 WL 2791350, *2 (M.D. Ga. May 3, 2011) (report and recommendation adopted by 2011 WL 2791958 (M.D. Ga. July 18, 2011)) (“A suit against a state official in his or her official capacity is no different from a suit against the state, which fails because of sovereign immunity.”) (citing Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir. 1996)).
To the extent Plaintiff is suing Judge Fahlgren in his individual capacity, the claims should also be dismissed because Defendant is entitled to absolute judicial immunity. “‘[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages.'” Price, 2011 WL 2791350, at *2 (quoting Mireles v. Waco, 502 U.S. 9, 11 (1991)). “Judges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in ‘the clear absence of all jurisdiction.'” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per curiam). “Whether an act by a judge is a judicial one relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge . . . .” Jarallah v. Simmons, 191 Fed.Appx. 918, 920 (11th Cir. 2006). “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.'” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). “Judges are also absolutely immune from suit when (1) the acts in question were performed while he or she was dealing with the parties in his or her judicial capacity, (2) the acts were of the sort normally performed by judicial officers and (3) the judge's conduct did not fall clearly outside his subject matter jurisdiction.” Mosley v. Awerbach, No. 8:06 CV 592 T 27MSS, 2006 WL 2375050, *4 (M.D. Fla. Aug. 15, 2006) (citing, inter alia, Stump v. Sparkman, 435 U.S. 349 (1978)).
Here, Judge Fahlgren was acting in his judicial capacity when he issued a TRO against Plaintiff. See, e.g., Wilson v. Bush, 196 Fed.Appx. 796, 799 (11th Cir. 2006) (“Entering a judgment or order is a quintessential judicial function and immunity attached to it.”); Bussey v. Devane, No. 13-cv-3660(JS)(WDW), 2013 WL 4459059, *3 (E.D.N.Y. Aug. 16, 2013) (“Deciding motions is certainly an act performed within a judge's ‘judicial capacity' and such determinations are undoubtedly entitled to absolute judicial immunity.”). Further, Plaintiff has failed to allege that any action taken by Judge Fahlgren was “taken in the absence of all jurisdiction, and the Court fails to see how such an allegation would be supportable.” Price, 2011 WL 2791350, at *3.
Because Judge Fahlgren is absolutely immune from Plaintiff's claims, the Complaint should be dismissed without prejudice for failure to state a claim on which relief may be granted and/or for seeking monetary relief against a defendant who is immune from such relief. See Brewster v. Land, No. 4:21-cv-102 (LAG) (MSH), 2021 WL 3084916, *3 (M.D. Ga. July 21, 2021); Price, 2011 WL 2791350, at *3; Mosley, 2006 WL 2375050, at *4 (“Plaintiffs' IFP Motions seek leave to file a complaint which seeks monetary relief from Defendants who are immune from such relief and, consequently, should be denied as to any complaint which seeks relief against Defendants Judge Bray and Judge Diskey.”).
Any claims against Judge Fahlgren for injunctive or declaratory relief would also be barred. See Henderson v. Augusta Jud. Cir., No. CV 120-175, 2021 WL 1216877, *2 (S.D. Ga. Mar. 4, 2021). “For a Plaintiff to receive injunctive or declaratory relief, ‘the judicial officer must have violated a declaratory decree or declaratory relief must otherwise be unavailable.'” Id. (quoting Tarver v. Reynolds, 808 Fed.Appx. 752, 754 (11th Cir. 2020)). Also, there must be an “absence of an adequate remedy at law.” Bolin, 225 F.3d at 1242. Plaintiff here does not allege a violation of a declaratory decree, that declaratory relief is otherwise unavailable, or that there is an absence of an adequate remedy at law. Moreover, to the extent any injunctive or declaratory relief sought by Plaintiff would “interfere[] with the state court's judicial process, a federal court lacks jurisdiction and should abstain from interfering under the principles of Younger v. Harris, 401 U.S. 37 (1971).” Henderson, 2021 WL 1216877, at *3.
Although a pro se plaintiff is ordinarily given an opportunity to amend his complaint out of an abundance of caution, it is clear in this case, even when construing the allegations in the Complaint liberally, that permitting Plaintiff to proceed in forma pauperis would be inappropriate, particularly in light of his history of filing numerous, non-meritorious actions in this Court. See Neitzke v. Williams, 490 U.S. 319, 324 (1989) (“Congress recognized . . . that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits. To prevent such abusive or captious litigation, § 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis ....”).
See, e.g., Fisher v. State of Fla., No. 3:21-cv-1069-HES-MCR (M.D. Fla. Oct. 27, 2021) (recommending dismissal of the complaint without prejudice for failure to state a claim on which relief may be granted and/or for seeking monetary relief against a defendant who is immune from such relief, because Judge Mobley was absolutely immune from Plaintiff's claims) (report and recommendation adopted on Nov. 17, 2021); Fisher v. State of Fla., No. 3:18-cv-340-BJD-JBT (M.D. Fla. May 8, 2018) (recommending dismissal of the complaint without prejudice for failure to state a claim on which relief may be granted and failure to prosecute) (report and recommendation adopted on June 5, 2018); Fisher v. State of Fla., No. 3:15-cv-1526-BJD-JRK (M.D. Fla. May 19, 2016) (recommending dismissal of the complaint without prejudice for failure to prosecute after noting that the complaint was frivolous) (report and recommendation adopted on June 23, 2016); Fisher v. State of Fla., No. 3:15-cv-1356-MMH-MCR (M.D. Fla. Jan. 21, 2016) (recommending dismissal of the complaint, filed against the State of Florida and two judges, without prejudice based on several grounds) (report and recommendation adopted on Feb. 10, 2016).
Accordingly, it is respectfully RECOMMENDED that:
1. The Application (Doc. 2) be DENIED.
2. This action be DISMISSED without prejudice.
3. The Clerk of Court be directed to terminate any pending motions and close the file.
DONE AND ENTERED