Busch v. County of Volusia

189 F.R.D. 687, 1999 U.S. Dist. LEXIS 19393, 1999 WL 1215769
CourtDistrict Court, M.D. Florida
DecidedDecember 16, 1999
DocketNo. 97-1222-CIV-ORL-3ABI(19)
StatusPublished
Cited by318 cases

This text of 189 F.R.D. 687 (Busch v. County of Volusia) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Busch v. County of Volusia, 189 F.R.D. 687, 1999 U.S. Dist. LEXIS 19393, 1999 WL 1215769 (M.D. Fla. 1999).

Opinion

ORDER

GLAZEBROOK, United States Magistrate Judge.

This cause came on for consideration without oral argument on the following motions:

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[690]*690Following a three day jury trial and jury verdict in favor of defendant County of Volusia [“Volusia County”], the Court entered a judgment on August 5, 1999 against .plaintiff Vicky L. Busch. The judgment dismissed the action on the merits and awarded defendant its costs. Docket No. 64. Gayle S. Graziano [“Graziano”] has throughout this case and trial represented Busch.

On August 24, 1999, Busch filed a pro se notice of appeal. Docket No. 65. On September 7, 1999, Graziano moved to withdraw as Busch’s counsel of record. Docket No. 66. On September 9, 1999, the Court denied the motion to withdraw without prejudice. By order dated September 28, 1999, the Court struck four motions that Busch had attempted to file pro se while still represented by counsel, including a motion to proceed in forma paupeñs on appeal. Docket No. 73, citing Local Rule 2.03(d). At a hearing on October 27, 1999, the Court granted Graziano’s amended motion to withdraw. Docket No. 76.

On the same day, Busch filed another motion to proceed in forma paupens on appeal [Docket No. 77], with a financial affidavit in the form prescribed by Form 4 of the Appendix of Forms of the Federal Rules of Appellate Procedure.’ Docket No. 78. On November 5, 1999, Busch filed a Motion for Permission to Appeal [Docket No. 80]1 and a Motion for a New Trial. Docket No. 81. Defendant County of Volusia timely opposed the Motion for a New Trial on November 15, 1999. Docket No. 82. On November 18, 1999, Busch filed a motion for a transcript of the trial at government expense. Docket No. 83. On December 8, 1999, Busch petitioned the Court to review alleged misconduct by Graziano. Docket No. 84.

In her motions to proceed in forma pauperis [Docket No. 77], for permission to appeal [Docket No. 80], and for a new trial [Docket No. 81], Busch cites the following ten grounds for redress; 1.) Graziano left two witnesses off the witness list for trial; 2.) Volusia County failed to produce Busch’s 1995 Employee Assistance Program records during discovery; 3.) Graziano failed to introduce certain evidence of same-sex harassment; 4.) Graziano failed timely to deliver a settlement offer to Busch; 5.) Graziano improperly instructed Busch to coach a witness; 6.) Graziano failed to call Steven Reichert to testify; 7.) Graziano failed to offer rebuttal witnesses or expert testimony; 8.) Graziano made disparaging remarks in a conversation with defendant’s counsel regarding Busch’s mental health; 9.) the affidavit of Busch’s expert, Dr. Timothy Shaw, was omitted from the evidence submitted to the jury; 10.) jury instructions 18, 19, 20 and 21 were inadequate in that they did not address Busch’s insomnia. In her Motion for a New Trial [Docket- No. 81], Busch asserts an eleventh ground for redress; that Graziano refused to allow Busch to obtain a second medical opinion. In her Petition for Review of Misconduct [Docket No. 84], Busch reiterates the foregoing alleged errors by Graziano and adds numerous additional allegations.

1. The Law

A. Proceedings In Forma Pauperis

Section 1915, 28 U.S.C., and Fed. R.App. P. 24 govern the determination of applications to proceed in forma pauperis. See Brown v. Pena, 441 F.Supp. 1382, 1384 (S.D.Fla.1977), affd, 589 F.2d 1113 (5th Cir. 1979).2 Section 1915(a) provides, in relevant part:

(1) Subject to subsection (b), any 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 [691]*691fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.
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(3) An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

28 U.S.C. § 1915(a) (1996) (emphasis supplied). Congress also mandates that the Court shall dismiss a ease at any time that it determines that the action or appeal taken in forma pauperis is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)®. Section 1915(e), 18 U.S.C., provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue;
or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(Hi) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2) (1996) (formerly § 1915(d)).

Rule 24(a) of the Rules of Appellate Procedure provides:

Leave to Proceed on Appeal in Forma Pauperis From District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party’s inability to pay fees and costs or to give security therefor, the party’s belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial.
Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case, may proceed on appeal informa pauperis

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189 F.R.D. 687, 1999 U.S. Dist. LEXIS 19393, 1999 WL 1215769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busch-v-county-of-volusia-flmd-1999.