Opinion
8:23-cv-1227-MSS-TGW
04-08-2024
TOWANNA JOHNSON, Plaintiff, v. MELISSA GOULD, et al., Defendants.
REPORT AND RECOMMENDATION
THOMAS G. WILSON, UNITED STATES MAGISTRATE JUDGE.
The plaintiff filed an affidavit of indigency pursuant to 28 U.S.C. 1915 (Doc. 2), seeking a waiver of the filing fee for her complaint. Thereafter, I issued a Report and Recommendation (Doc. 3) wherein I recommended that the complaint be dismissed without prejudice with leave to amend. The plaintiff then filed an Amended Complaint (Doc. 4) and new affidavit of indigency pursuant to 28 U.S.C. 1915 (Doc. 5). In light of those filings, United States District Judge Mary S. Scriven denied the plaintiffs initial affidavit of indigency pursuant to 28 U.S.C. 1915 (Doc. 2) as moot and terminated the report and recommendation (see Doc. 6).
The plaintiffs Amended Complaint (Doc. 4) suffers from the same deficiencies as her initial complaint. Therefore, I recommend that the plaintiffs complaint be dismissed with prejudice.
I.
Under 28 U.S.C. 1915(a)(1), the court may authorize the filing of a civil lawsuit without prepayment of fees if the plaintiff submits an affidavit that includes a statement of all assets showing an inability to pay the filing fee and a statement of the nature of the action which shows that she is entitled to redress. Even if the plaintiff proves indigency, the case shall be dismissed if the action is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. 1915(e)(2)(B)(i), (ii). The latter requires that the complaint allege facts from which the court may “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II
The plaintiffs Amended Complaint (Doc. 4) is an improvement insofar as she has set forth the facts in counts and numbered paragraphs, as required by Rule 10 of the Federal Rules of Civil Procedure. However, her complaint is still conclusory regarding the defendants' actionable conduct. Thus, the complaint does not comply with Federal Rule of Civil Procedure 8(a)(2).
The plaintiff clarifies, as suspected, that this matter relates to a state court proceeding, where the plaintiff was not the prevailing party, involving her home. Thus, the plaintiff states that the state court proceeding involved a lis pendens action where her home was, she asserts, improperly sold off. The plaintiff again contends that the court's jurisdiction involves a federal question, which would still relate to the alleged violations of the Fifth and Fourteenth Amendments.
Similar to her prior complaint, the plaintiff has alleged violations of various Florida Statutes that appear to be either misplaced or without any factual basis (see, e.g. Doc. 3, p. 4). Thus, for instance, the plaintiff asserts that the defendant, Manatee County Clerk of Courts Comptroller, Angelina Colonneso, violated Florida Statute 838.22, by “fail[ing] to collect bid sum of $11,000 from bidder” (Doc. 4, pp. 6, 13). However, that statute, titled “Bid Tampering” deals primarily with limiting procurement fraud in government contracts. Consequently, the plaintiffs broad claim that Ms. Colonneso failed to collect a bid from a bidder does not rise to the level of bid tampering. Moreover, relief may not be granted for a violation of this statute, since it is a criminal statute that does not provide for a civil remedy, as requested by the plaintiff (Doc. 4, p. 13).
The plaintiff also does not resolve the prior issue of whether the federal court has jurisdiction over this matter. As the Supreme Court stated in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84 n. 16 (1983) (citations omitted):
[L]ower federal courts possess no power whatever to sit in direct review of state court decisions. . . . If the constitutional claims presented to a United States district court are inextricably intertwined with the state court's denial [of a claim] in a judicial proceeding ... then the district court is in essence being called on to review the state-court decision. This the District Court may not do.
Thus, a federal district court cannot review “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting the district court review and rejection of those judgments.” Exxon Mobile Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The complaint still appears to be an attempt to review a state court decision in which she lost.
The plaintiff asserts, in more detail, in her amended complaint that the various defendants were involved in an impermissible lis pendens action against her home (see Doc. 4). She is essentially asking this court for recourse from that decision. While the plaintiff states that the various defendants violated “42 U.S.C. 1983 Deprivation of Rights under color of law. Violation of Civil Procedure 1.140(b)(7) Indispensable Party to a lawsuit, Constitution 5th Amendment right due process, Fourteenth Amendment procedural due process” (Doc. 4, p. 6) she provides no facts to support those violations.
For instance, she claims that defendant Judge Melissa Gould violated those provisions by simply stating that “ [defendant Judge Gould cause the deprivation of plaintiffs right per the Judicial Code of Conduct by Canon's” (id., p. 10). This broad claim does not amount to a violation of any of the provisions asserted by the plaintiff. Further, the plaintiffs claim that “defendant [Damian M.] Ozark filed a frivolous lis pendens for the purpose of gaining leverage in a property dispute of the previous landowner” (id., p. 11) is, likewise, baseless. Notably, the plaintiff provides no facts to show the frivolity of the lis pendens action. Moreover, as indicated, it is unclear how this court would have jurisdiction over that matter.
Finally, the plaintiff also failed to resolve the issue of the defendants' immunity. The plaintiff does not appear to have addressed the matter of immunity at all in her amended complaint. At best, the plaintiff has included additional discussion about her belief that Judge Gould violated the “Florida Judicial Code of Conduct” (id., p. 2). However, that has nothing to do with whether or not Judge Gould is entitled to immunity. Thus, as stated in my previous report judges are entitled to absolute judicial immunity from damages for acts or omissions associated with the judicial phase of the civil or criminal process. See Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005). Judicial immunity does not apply only in situations where the judge, acting in his or her judicial capacity, ruled “in the clear absence of all jurisdiction.” Id. In her amended complaint, the plaintiff still does not allege any facts that Judge Gould's actions did not constitute a normal judicial function within the scope of her assigned jurisdiction. Similarly, the plaintiff does not address the matter of immunity, as well as a total bar against claims, as to the other defendants. See e.g., Kelly v. Ala. Dep't of Revenue, 638 Fed.Appx. 884, 888-89 (11th Cir. 2016) (providing that the Tax Injunction Act is “intended to prevent taxpayers from using federal courts to raise questions of state or federal law relating to the validity of particular taxes”); Hyland v. Kolhage, 267 Fed.Appx. 836, 842 (11th Cir. 2008) (unpublished) (“Court clerks ‘have absolute immunity from actions for damages arising from acts they are specifically required to do under court order or at a judge's discretion, and only qualified immunity from all other actions for damages.'”).
Accordingly, the complaint fails to state a claim on which relief may be granted. § 1915(e)(2)(B)(ii). As indicated, this is the plaintiffs second opportunity to file a cognizable complaint. Since there is nothing to suggest that giving the plaintiff an opportunity to file a third complaint will lead to a different result, I recommend that the amended complaint be dismissed with prejudice.
NOTICE TO PARTIES
The parties have fourteen days from the date they are served a copy of this report to file written objections to this report's proposed findings and recommendations or to seek an extension of the fourteen-day deadline to file written objections. 28 U.S.C. 636(b)(1)(C). Under 28 U.S.C. 636(b)(1), a party's failure to object to this report's proposed findings and recommendations waives that party's right to challenge on appeal the district court's order adopting this report's unobjected-to factual findings and legal conclusions.