KARLA R. SPAULDING, Magistrate Judge.
This cause came on for consideration without oral argument on the following motion filed herein:
On February 7, 2018, Renee D. Bell, appearing pro se, filed a complaint against Defendants Florida Highway Patrol ("FHP") and Larry Costanzo (collectively "Defendants"), alleging several claims against Defendants stemming from her employment with FHP. Doc. No. 1. FHP moved to dismiss the complaint with prejudice, asserting that Plaintiff failed to state a claim and that her causes of action were barred by the statute of limitations, res judicata, collateral estoppel, and, in some cases, sovereign immunity. Doc. No. 14. Plaintiff did not respond to the motion to dismiss. On June 6, 2018, the presiding judge, the Honorable Gregory A. Presnell, dismissed the complaint with prejudice, finding:
Doc. No. 19.
On June 21, 2018, Plaintiff filed a "Motion/Response for Denial of Sanctions, In Response to Defendant/FHP Motion, Memorandum of Law, and Request for Reinstatement." Doc. No. 20. Judge Presnell denied the motion. Doc. No. 21. Plaintiff appealed from that order without paying the filing fee. Doc. No. 23. She simultaneously filed a motion for reconsideration of the denial of that motion, but her motion for reconsideration was denied as moot based on the filing of the notice of appeal. Doc. Nos. 22, 24.
On July 23, 2018, Plaintiff filed a "Motion/Request for `This Court[']s' Final Closure Prior to `Appeal,'" which in substance asked for reconsideration and/or reopening of the case. Doc. No. 26. Judge Presnell denied the motion. Doc. No. 27. Plaintiff then appealed from the denial of that motion, and she also filed a motion to proceed without paying costs, which consisted of an Application to Proceed in District Court without Prepaying Fees or Costs. Doc. Nos. 28, 29.
The Application to Proceed in District Court without Prepaying Fees or Costs was referred to me for issuance of a Report and Recommendation.
In her complaint (Bell v. Florida Highway Patrol, No. 6:18-cv-193-Orl-31KRS, "
In Bell I, Plaintiff sought three million dollars in damages and injunctive relief against Defendants via her third amended complaint. Bell I, Doc. No. 84, at 34. She claimed that she was unfairly demoted and subsequently terminated from employment, after an incident occurring on August 3, 2005. Id. at 2-3. Defendants terminated her from employment on February 20, 2006, for allegedly disregarding directions from her supervisor on August 3, 2005, and generally creating a hostile working environment. Id. at 6, 17. In her complaint, Bell claimed defamation, racial discrimination, negligent infliction of emotional distress, violations of the Americans with Disabilities Act ("ADA"), violations of the Family Medical Leave Act ("FMLA"), hostile work environment, administrative irregularities in the procedures used to terminate her, and that her termination violated the U.S. Constitution and constituted retaliation. See, e.g., Bell I, Doc. No. 84, at 4, 8, 17, 23, 29, 30, 31.
Defendants moved to dismiss the third amended complaint for failure to comply with procedural requirements and failure to state a cause of action. Bell I, Doc. No. 91. The Court granted the motion with leave to amend. Bell I, Doc. No. 110. Instead of amending, Plaintiff appealed to the Eleventh Circuit. Bell I, Doc. No. 118. While the appeal was pending, Plaintiff filed a fourth amended complaint, which the Court dismissed with prejudice. Bell I, Doc. Nos. 127, 135. Plaintiff also appealed from that dismissal. Bell I, Doc. No. 137.
The Eleventh Circuit held that the dismissal order of Plaintiff's third amended complaint was a final appealable order after Plaintiff filed her notice of appeal; thus, because this Court lacked jurisdiction to dismiss the fourth amended complaint, the Eleventh Circuit remanded with directions to strike Plaintiff's fourth amended complaint and vacate all orders after the notice of appeal. Bell I, Doc. No. 146. The Eleventh Circuit noted that, by appealing rather than amending the complaint, Plaintiff waived her right to amend. Id.
The Eleventh Circuit subsequently affirmed the dismissal of Plaintiff's third amended complaint. Bell, 476 F. App'x at 856. Plaintiff requested to refile a fourth amended complaint, but this Court ultimately denied that request. Bell I, Doc. No. 150, 162. Plaintiff again appealed, but the Eleventh Circuit affirmed. Bell, 589 F. App'x at 474. Plaintiff filed a petition for writ of certiorari to the U.S. Supreme Court, but that petition was denied, Bell v. Fla. Highway Patrol, 137 S.Ct. 234 (2016), as was her request for rehearing, Bell v. Fla. Highway Patrol, 137 S.Ct. 844 (2017).
One month later, Plaintiff filed the complaint in Bell II. Bell II, Doc. No. 1. Instead of naming FHP and Costanzo as Defendants, Plaintiff named the State of Florida. Id. In conjunction with the complaint, Plaintiff filed a motion for leave to proceed in forma pauperis. Bell II, Doc. No. 2. The complaint lacked detailed factual allegations but stated that it was "a new case in respect to prior case filed and dismissed." Bell II, Doc. No. 1. Plaintiff alleged: numerous violations of the U.S. Constitution; criminal conspiracy under 18 U.S.C. §§ 241-242; a whistleblower claim under § 1983; defamation; violations of the ADA; violations of Florida's administrative laws; and failure to protect her from unethical conduct. Id. at 1-2. She sought twelve million dollars in damages, "restoration of damage to name," and backpay. Id. at 2.
I issued a Report and Recommendation recommending that the complaint be dismissed as frivolous. Bell II, Doc. No. 10. Specifically, I noted that it appeared that Plaintiff was attempting to use a new case to file the fourth amended complaint that she was denied in Bell I. Id. at 7. In addition, (1) Plaintiff's § 1983 claims were barred by Eleventh Amendment immunity and the statute of limitations; (2) the criminal conspiracy statutes—18 U.S.C. §§ 241 and 242—were unavailable to assert a private cause of action; (3) the ADA claims were barred by sovereign immunity; (4) her defamation claims were barred by the statute of limitations; (5) several of her claims for violations of the Florida Constitution, Administrative Rules, and unspecified other regulations, were either unavailable as a private cause of action or barred by sovereign immunity; and (6) none of the grounds stated a claim upon which relief could be granted. Id. at 8-16. I recommended that the complaint be dismissed without leave to amend. Id. at 17. Judge Presnell overruled Bell's objections and adopted the Report and Recommendation. Bell II, Doc. No. 16. Therefore, the complaint was dismissed with prejudice on April 18, 2017. Id.
Plaintiff instituted the instant case in February 2018. Bell III, Doc. No. 1.
In this case, Plaintiff seeks another opportunity to address allegations regarding her employment with FHP. See Bell III, Doc. No. 1, at 1 ("
The Court dismissed Plaintiff's complaint with prejudice. Bell III, Doc. No. 19. Plaintiff separately appealed two post-dismissal orders denying her motions to reconsider the dismissal or reinstate the case. Bell III, Doc. Nos. 23, 28. She filed an Application to Proceed in District Court without Prepaying Fees or Costs in conjunction with her second notice of appeal, which was referred to me for issuance of a Report and Recommendation. Bell III, Doc. No. 29. For purposes of this Report and Recommendation, I will construe Plaintiff's application as a request for leave to appeal in forma pauperis.
"The only statutory requirement for the allowance of an indigent's appeal is the applicant's `good faith.'" Ellis v. United States, 356 U.S. 674, 674 (1958) (citing 28 U.S.C. § 1915). "In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous." Id. (citing Farley v. United States, 354 U.S. 521 (1957)). "Determination of good faith necessitates an inquiry into the appeal's merits, but such inquiry is limited to whether [the] appeal involves legal points arguable on their merits, and is therefore not frivolous, and does not require that probable success be demonstrated." DeSantis v. United Techs. Corp., 15 F.Supp.2d 1285, 1289 (M.D. Fla. 1998), aff'd without opinion, 193 F.3d 522 (11th Cir. 1999) (citing Jones v. Frank, 622 F.Supp. 1119 (W.D. Tex. 1985)). "An argument is frivolous only when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless." Wilson v. Berryhill, No. 16-CV-81881-BRANNON, 2017 WL 4305125, at *1 (S.D. Fla. Aug. 22, 2017) (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)). Therefore, an application for leave to appeal in forma pauperis is properly denied "if it appears—objectively—that the appeal cannot succeed as a matter of law." DeSantis, 15 F. Supp. 2d at 1289 (citations omitted).
Although Plaintiff's complaint is difficult to follow, it is apparent that it is a continuation of Plaintiff's previous lawsuits in Bell I and Bell II. All of her claims involve her employment with FHP and her termination from employment in February 2006.
In her first notice of appeal (Doc. No. 23), Plaintiff appeals from the denial of her motion for reconsideration of the dismissal, with prejudice, of her complaint (Doc. No. 21). Plaintiff's second notice of appeal is less clear, but it follows the denial of her "Motion/Request for `This Court[']s' Final Closure Prior to `Appeal.'" Doc. Nos. 27, 28. The second notice of appeal was accompanied by the subject motion for leave to appeal in forma pauperis. Doc. No. 29.
Plaintiff's second notice of appeal is untimely. In general, a notice of appeal must be filed within thirty days after entry of the judgment or order appealed. Fed. R. App. P. 4(a)(1)(A). However, motions under Federal Rules of Civil Procedure 50(b), 52(b), 54, 59 and 60 toll the time for appealing. Fed. R. App. P. 4(a)(4)(A). Assuming that Plaintiff's "Motion/Request for `This Court[']s' Final Closure Prior to `Appeal'" qualified as motion to "alter or amend the judgment" under Rule 59, it was not filed until July 23, 2018, and the order of dismissal was entered on June 6, 2018. Thus, Plaintiff's second motion for reconsideration was untimely and did not toll the time to appeal from the final judgment. See Fed. R. Civ. P. 59(e) (allowing twenty-eight days to file motion to alter or amend judgment after judgment is entered); see also Kight v. IPD Printing & Distrib., Inc., 427 F. App'x 753, 754 (11th Cir. 2011) (per curiam)
Assuming that Plaintiff also seeks leave to appeal in forma pauperis as to the first notice of appeal, on the merits Plaintiff's appeal is frivolous. In this case, Plaintiff attempts to raise the same claims as those raised in Bell I and Bell II. As discussed in previous Reports and Recommendations and Orders, each of her claims has been previously dismissed, ultimately without leave to amend. Therefore, Bell has no valid basis to appeal.
For the reasons discussed herein,
It is
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
