Opinion
Case No. 4:08cv66-SPM/WCS.
February 13, 2008
REPORT AND RECOMMENDATION
Plaintiff, who is pro se, submitted a civil rights complaint on or about February 11, 2008. Doc. 1. Plaintiff did not pay the filing fee for this case nor did she submit an in forma pauperis motion with the required supporting financial affidavit. Under the local rules of this Court, a civil action "shall not be filed by the clerk until the fee is paid as required by 28 U.S.C. § 1914, unless the complaint . . . is accompanied by a motion for leave to proceed in forma pauperis." N.D. Fla. Loc. R. 5.1(H). Because Plaintiff neither paid the fee nor filed an in forma pauperis motion, this case should be dismissed.
Moreover, federal law permits a United States District Court to dismiss a case filed in forma pauperis, if it is satisfied that the action is frivolous or malicious. The Supreme Court has recognized two types of cases which may be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(d). Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989). The first class are "claim(s) based on an indisputably meritless legal theory," and the second class contain "claims whose factual contentions are clearly baseless." Id. This case lacks both an arguable basis in law and is clearly removed from reality.Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990), citing Neitzke. Plaintiff's allegations are incomprehensible.
Although Plaintiff has not yet been granted in forma pauperis status, there is no need to delay dismissal of this case only to resolve the issue of the filing fee. Because dismissal of the complaint is appropriate, it should be done sua sponte and prior to either requiring Plaintiff to file an in forma pauperis motion or pay the filing fee.
In light of the foregoing, it is respectfully RECOMMENDED that this action be DISMISSED for failure to state a claim upon which relief may be granted.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.