Summary
dismissing shotgun pleading by pro se plaintiff without prejudice and with leave to amend
Summary of this case from Shillingford v. Rolly Marine Serv., Inc.Opinion
Case No: 6:13-cv-60-Orl-36TBS
02-26-2013
CRANDALL POSTELL, Plaintiff, v. FIFTH THIRD BANK, M. CELINE CANNON, ROBERT D. GATTON, et al., Defendants.
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge Thomas B. Smith, filed on February 4, 2013 (Doc. 5). In the Report and Recommendation, the Magistrate Judge recommends that pro se Plaintiff Crandall Postell's ("Plaintiff") Complaint (Doc. 1) be dismissed without prejudice as a shotgun pleading and for failure to properly state a claim upon which relief can be granted, and that the Court defer ruling on Plaintiff's Motion for leave to proceed in forma pauperis ("Motion") (Doc. 2) until the Court has the opportunity to review Plaintiff's amended complaint. See Doc. 5. No party has objected to the Report and Recommendation and the time to do so has expired.
The Magistrate Judge also correctly notes that some of the relief Plaintiff is seeking appears to be barred by the Rooker-Feldman doctrine, which is a jurisdictional rule that precludes lower federal courts from reviewing state court judgments. See Doc. 5, p. 6; Alvarez v. Att'y Gen. for Fla., 679 F.3d 1257, 1262 (11th Cir. 2012).
The Court is in agreement with the Magistrate Judge that the Complaint should be dismissed because it is a shotgun pleading, fails to properly state a claim upon which relief can be granted, and seeks relief which is barred by the Rooker-Feldman doctrine. See 28 U.S.C. § 1915(e)(2) (in proceedings in forma pauperis, the court shall dismiss the case if, among other things, the case is frivolous or fails to state a claim upon which relief may be granted). The Complaint also fails to state any basis for this Court's subject matter jurisdiction. However, based on the fact that Plaintiff is proceeding pro se, the Court agrees that Plaintiff should be given an opportunity to file an Amended Complaint and that the Court should defer ruling on Plaintiff's Motion until that time. Therefore, after careful consideration of the Report and Recommendation of the Magistrate Judge, in conjunction with an independent examination of the court file, the Court is of the opinion that the Magistrate Judge's Report and Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 5) is adopted, confirmed, and approved in all respects, except that Plaintiff is given thirty days to file an Amended Complaint, and is made a part of this Order for all purposes, including appellate review.
2. Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice. Plaintiff is granted leave to file an Amended Complaint which cures the deficiencies addressed in this Order within THIRTY (30) DAYS from the date of this Order. Failure to file an Amended Complaint within the time provided will result in dismissal of this action without further notice.
3. Plaintiff is advised that his Amended Complaint must contain all of his (amended) allegations and should not in any way refer to the original Complaint. The Amended Complaint will completely replace the original Complaint. Plaintiff shall file the Amended Complaint with an original signature and keep an identical copy for himself.
4. A ruling on Plaintiff's Motion for leave to proceed in forma pauperis (Doc. 2) is DEFERRED pending the Court's review of Plaintiff's Amended Complaint.
DONE and ORDERED in Orlando, Florida on February 26, 2013.
______________________
Charlene Edwards Honeywell
United States District Judge
Copies furnished to: Counsel of Record
Unrepresented Parties
United States Magistrate Judge Thomas B. Smith