A lawsuit filed with almost no facts gets a second chance to be rewritten.

Record source: CourtListener

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION TINA RAMIREZ, : : Plaintiff, : : CIVIL ACTION v. : No. 5:26-CV-437 (CAR) : WHITNEY CLARK, et al. : : Defendants. : : ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS Before the Court is pro se Plaintiff Tina Ramirez’s Motion to Proceed In Forma Pauperis (“IFP”). Having reviewed Plaintiff’s Affidavit, it appears she is unable to pay the cost of commencing this action or the United States Marshal service fees. Accordingly, Plaintiff’s Motion to Proceed IFP [Doc. 2] is GRANTED. But, because Plaintiff fails to allege facts sufficient to state any viable claim for relief, there will be no service of process until further order of this Court. If Plaintiff wishes to maintain this action, then pursuant to 28 U.S.C. § 1915(e)(2) she must file a recast Complaint within 21 days of the date of this Order, which will supersede his original Complaint, as hereinafter directed. A. Motion to Proceed IFP Motions to proceed IFP are governed by 28 U.S.C. § 1915(a)(1), which provides: [A]ny 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 prisoner possesses1 that the person is unable to pay such fees or give security therefor. When considering a motion to proceed IFP filed under § 1915(a), “[t]he only determination to be made by the court . . . is whether the statements in the affidavit satisfy the requirement of poverty.”2 The Court should accept statements contained in an IFP affidavit, “absent a serious misrepresentation.”3 Although a litigant need not show [s]he is “absolutely destitute” to qualify under § 1915(a), [s]he must show that “because of h[er] poverty, [s]he is unable to pay for the court fees and costs, and to support and provide necessities for h[er]self and h[er] dependents.”4 The Court has reviewed Plaintiff’s application to proceed IFP and is satisfied that she cannot pay the court fees because of poverty. Plaintiff states she receives $499.00 per month in income, and her monthly expenses total $500.00.5 The Court finds Plaintiff qualifies as a pauper under § 1915, and her Motion [Doc. 2] is GRANTED. B. Preliminary Screening 1 “Despite the statute’s use of the phrase ‘prisoner possesses,’ the affidavit requirement applies to all persons requesting leave to proceed IFP.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004). 2 Martinez v. Kristi Keaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (internal quotation marks and citation omitted). 3 Id. 4 Id. (citation omitted). 5 Plaintiff’s Motion to Proceed IFP [Doc. 2 at 1–2]. Because Plaintiff is proceeding IFP, the Court is required to screen her Complaint and must sua sponte dismiss the complaint or portion thereof which (1) is found to be frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a defendant who is immune from such relief.6 Title 28 U.S.C. § 1915(e) “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.”7 Dismissal for failure to state a claim is appropriate when the facts as pleaded do not state a claim for relief that is “plausible on its face”8 and is governed by the same standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6).9 A claim is plausible where the plaintiff alleges factual content that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”10 The plausibility standard requires that a plaintiff allege sufficient facts “to raise a reasonable expectation that discovery will reveal evidence” that supports a plaintiff’s claims.11 Pro se “pleadings are held to a less stringent standard than pleadings drafted by attorneys and 6 28 U.S.C. § 1915(e)(2)(b). 7 Neitzke v. Williams, 490 U.S. 319, 327 (1989). 8 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). 9 See, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). 10 Ashcroft, 556 U.S. at 663. 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). will, therefore, be liberally construed.”12 But “[d]espite the leniency afforded pro se plaintiffs, the district court does not have license to rewrite a deficient pleading.”13 Plaintiff has named 34 Defendants, and her allegations in their entirety are: “Defendant [sic] violated first amendment rights in denying access.”14 Plaintiff provides no other factual allegations. Plaintiff has failed to state any viable claim for relief. Indeed, she has failed to state any facts whatsoever about who the Defendants are, what actions they took to violate her rights, or what specific First Amendment rights they violated, such as the right to free speech, assembly, or access to the courts. Given Plaintiff’s pro se status, the Court will afford her an opportunity to amend her complaint to state viable claims.15 The Court will not look back to the facts alleged in the original complaint once any amended complaint is filed; the Court will only consider the facts in the amended complaint when it conducts the frivolity review required by § 1915(e)(2)(B).16 12 Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (citations omitted). 13 Osahar v. United States Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008). 14 Compl. [Doc. 1]. 15 See Duff v. Steub, 378 F. App’x 868, 872 (11th Cir. 2010) (“When it appears a pro se plaintiff’s complaint, if more carefully drafted, might state a claim, the district court should give the pro se plaintiff an opportunity to amend h[er] complaint instead of dismissing it.”). 16 Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (holding that the filing of an amended pleading renders the previous pleading a “legal nullity”). In the “statement of claims” section of her amended complaint, Plaintiff must link any claims she makes to each named defendant. If Plaintiff fails

Official opinion source