Lewis v. Affiliated Enterprise Solutions, LLC

• Court: District Court, N.D. New York
• Decided: February 20, 2024
• Docket: 8:24-cv-00061
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-13 Vv. (GTS/DJS) ONONDAGA COUNTY, NY, ef al., Defendants.

SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-27 Vv. (BKS/DJS)

ADIRONDACK MEDICAL CENTER, Defendant.

SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-29 Vv. (TJM/DJS) CITIZENS UNITED, INC..,

Defendant.

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SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-61 V. (BKS/DJS) AFFILIATED ENTERPRISE SOLUTIONS, LLC, et al., Defendants.

SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-68 V. (BKS/DJS) REDLINE HOCKEY, LLC, et al.,

Defendants.

SCOTT PHILLIP LEWIS, Plaintiff, 8:24-CV-69 Vv. (AMN/DJS) R.L. VALLEE, INC., Defendant.

APPEARANCES: OF COUNSEL: SCOTT PHILLIP LEWIS Plaintiff Pro Se Lake Placid, New York 12946 DANIEL J. STEWART United States Magistrate Judge _2-

ORDER On January 25, 2024, this Court issued an Order in each of these cases denying Plaintiff's request that the Clerk of the Court issue summonses despite the fact that Plaintiff's applications to proceed in forma pauperis (“IFP’’) had not yet been granted and

no review of the Complaints had yet been done as required by 28 U.S.C. § 1915. See, e.g., 8:24-CV-13, Dkt. No. 7. Plaintiff now seeks reconsideration of those Orders. See, e.g., 8:24-CV-13, Dkt. Nos. 8, Motion & 8-1, Pl.’s Mem. of Law. The Motions for Reconsideration are denied. “A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; _|or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice.” Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). “The standard for reconsideration is strict, and a motion for reconsideration will be denied unless the moving party can point to controlling decisions or facts that the court ‘overlooked’ and that might ‘reasonably be expected to alter the conclusion reached by the court.’” Hum. Elecs., Inc. v. Emerson Radio Corp., 375 F. Supp. 2d 102, 114 (N.D.N.Y. 2004) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Reconsideration “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).

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Plaintiff sets forth several grounds for reconsideration, none of which meet the strict standard required for granting the Motion. Plaintiff first takes exception to the authorities the Court relied upon in denying

the request to issue summonses. Motion at p. 3. He objects that the Court “did not offer any case law or Federal statutes that are binding on this Court.” /d. The Court, however, did rely on a binding federal statute in citing 28 U.S.C. § 1915. Order at p. 3. Moreover, that Plaintiff disagrees with the cases cited by the Court is not a basis for reconsideration. Schottenstein v. Schottenstein, 2005 WL 912017, at *2 (S.D.N.Y. Apr. 18, 2005). Issuance of summonses as requested by Plaintiff is clearly contrary to L.R. 5.1.4 which

Provides: “Prior to the Marshal serving process pursuant to 28 U.S.C. § 1915(d) and L.R. 5.1(e), the Court shall review all actions filed pursuant to 28 U.S.C. § 1915(g) to determine whether sua sponte dismissal is appropriate.” (emphasis added). This Court’s prior Order merely cited additional persuasive authorities to explain the conclusion. That is clearly not a basis for reconsideration. Plaintiff also appears to argue that the Order is unjust because it prejudices his right to proceed with the case. Motion at pp. 3-4. Plaintiff's argument appears to be that he is prejudiced by the delay in issuing summonses pending review of his in forma pauperis application and that no harm would come from issuing summonses now since the cases could be dismissed later if the applications were later denied. Jd. at p. 4. What this argument overlooks 1s that together with consideration of the application for in forma

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pauperis status, the Court must review Plaintiff's Complaints under 28 U.S.C. § 1915. Until that review is complete service upon one or more Defendants is clearly premature. See Morse v. United States Postal Serv., 2018 WL 3575654, at *5 (W.D.N.Y. July 25, 2018) (discussing the process for review of cases under 28 U.S.C. § 1915).

Finally, Plaintiff objects that this Court’s citation to Arroyo v. Georgia, 2023 WL 4539770, at *4 (N.D. Ga. May 30, 2023) “contains a quote that is not properly cited or does not exist.” P1.’s Mem. of Law at p. 5. As evidence, Plaintiff provides a slip opinion from a case captioned Arroyo v. Colbert which does not include the above quotation. Motion at Ex. B. The confusion is easily explained. As noted in the citation, the Court quoted from a decision issued May 30, 2023. The opinion provided by Plaintiff was

_| March 28, 2018. Id.'_ The quote to which Plaintiff objects does, in fact, appear in the case cited by the Court, a copy of which is annexed to this Order. For these reasons the Motions for Reconsideration are DENIED. The Clerk of the Court is directed to serve a copy of this Order upon the Plaintiff. Dated: February 20, 2024 Albany, New York

° Z; eigfed ef US-Magistrate Judge

' Nor are the two decisions even from the same case. The case cited by the Court was filed in 2022, as evidenced by the case number 22-CV-1689. The case provided by me bears the case number 18-CV-848.

14-days to file an amended complaint in accordance with the instructions in this Order. KeyCite Blue Flag — Appeal Notification Appeal Filedby VALERIE ARROYO v. STATE □□ GEORGIA, 11th Cir, July 6, 2023 I. BACKGROUND Plaintiff filed her first IFP application on April 28, 2022. 2023 WL 4539770 Only the Westlaw citation is currently available. Doc. No. [1]. In the complaint attached to her application, United States District Court, Plaintiff recounts her ongoing state criminal proceedings, N.D. Georgia, Atlanta Division. which arose from a traffic stop in December 2016 and law enforcement finding a small amount of marijuana. Doc. No. Valerie ARROYO, Plaintiff, [1-1], 2-3. From 2017 until 2021, Plaintiff appeared in state V. criminal court several times but has yet to have a jury trial. 3 State of GEORGIA, Defendant. Id. at 3-5. Plaintiff is not detained, but contends that her bail money has not been released and that the judge in the CIVIL ACTION FILE No. 1:22-CV-01689-SCJ criminal case has not permitted her to pursue a civil legal | action. Id. at 5. She makes a variety of unclear constitutional Signed May 30, 2023 claims that appear to be brought under Section 1983, as well as state law claims of negligence, defamation, slander, and Attorneys and Law Firms unfair deceptive practices. Id. at 6-12. Valerie Arroyo, Concord, NC, Pro Se. On June 28, 2022, the Magistrate Judge issued an order directing the Plaintiff to file an amended IFP application ORDER within 21-days or pay the full filing fee because Plaintiff had failed to complete the financial affidavit for indigency STEVE C. JONES, UNITED STATES DISTRICT JUDGE status. Doc. No. [2]. Plaintiff then submitted an amended, but still incomplete, IFP financial affidavit on July 8, 2022. *1 This matter appears before the Court on Plaintiff's Doc. No. [3]. On July 20, 2022, the Magistrate Judge again applications to proceed in forma pauperis (“IFP”), | Doc. directed Plaintiff to resubmit a completed application or pay Nos. [1]; [3]. The Magistrate Judge issued a Report and the full filing fee. Doc. No. [4]. The Magistrate Judge also Recommendation on November 9, 2022 recommending warned Plaintiff that failure to comply would result in its that Plaintiffs IFP application be denied because Plaintiff recommendation to this Court that the action be dismissed. Id. failed to provide sufficient evidence of indigency. Doc. No. [6]. Plaintiff timely filed objections to the Report and *2 Plaintiff failed to respond. On November 9, 2022, Recommendation. Doc. No. [8]. She also later filed two therefore, the Magistrate Judge recommended that this Court motions captioned as a “Request for Pre-Trial Conference deny Plaintiff's IFP application for failure to provide evidence and Scheduling Order” and a “Motion for Expedited Status of indigency and to dismiss the action without prejudice. Conference.” Doc. Nos. [9]; [10]. Doc. No. [6]. Plaintiff filed objections to the Report and Recommendation on November 22, 2022. Doc. No. [8]. In this Order, the Court addresses these pending submissions _ Plaintiff also submitted two motions in January 2023: a and determines that Plaintiff is to be granted IFP status, | ‘equest for a pre-trial conference and scheduling order (Doc. but that she has not stated a non-frivolous claim for No. [9]) anda motion for expedited status conference (Doc. relief in her complaint. Thus, to the extent necessary, the No. [10]). Magistrate's order on Plaintiff's financial affidavit (Doc. No. [4]) is VACATED and the Magistrate's Recommendation In this Order, the Court addresses Plaintiff's IFP applications, is REJECTED (Doc. No. [6]). Plaintiff IFP application, the Magistrate's Report and Recommendation to dismiss however, is DENIED (Doc. Nos. [1]; [3]), and her case the case, Plaintiff's objections, and Plaintiff's two remaining is accordingly DISMISSED WITHOUT PREJUDICE. — motions. Doc. Nos. [1]; [3]; [6]; [8]; [9]; [10]. Plaintiff's two remaining motions (Doc. No. [9]; [10]) are DENIED AS MOOT. The Court finally GRANTS Plaintiff

Il. LEGAL STANDARD This Order addresses both an application to proceed in forma B. Standards Governing Objections to a Magistrate's pauperis and objections to a Magistrate Court's Report and Report and Recommendation Recommendation, thus the following legal standards are Pursuant to Pals. U.S.C. § 636(b)(1), the Court must applicable. conduct a de novo review of the portions of the Magistrate's Recommendation to which Plaintiff has timely A. Standards to Proceed In Forma Pauperis and specifically objected. The Court may accept, reject, or The Court “may authorize the commencement ... of any suit, modify, in whole or in part, the findings and recommendations action or proceeding, civil or criminal ... without prepayment made. See Fa52 U.S.C. § 636(b)(1); Pal United States v. of fees or security therefor, by a person who submits an Raddatz, 447 U.S. 667, 673-74 (1980). However, a party's affidavit that includes a statement of all assets [she] possesses —_ gbjection only receives de novo review when the party that the person is unable to pay such fees or give security “clearly advise[s] the district court and pinpoint[s] the specific F228 U.S.C. § 1915(a). This section is intended ndings that [she] disagrees with.” United States v. Schultz, to provide indigent litigants with meaningful and equalaccess 909 F-3d 1353, 1360 (11th Cir. 2009). The district court need to the judicial system. | “Neitzke v. Williams, 490 U.S. 319, Hot consider general objections. marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). The Court assesses for clear 324 (1988); Pl adkins v. EL. duPont de Nemours & Co., 335 error only the parts of a Recommendation to which there is 331, 342-43 (1948), Pa ttwood v. Singletary v. Singletary, 105 F.3d ng specific objection. See Pm Tauber v. Barnhart, 438 F. Supp. 610, 612 (11th Cir. 1997). The affidavit required must showan = 9g 1366, 1373 (N.D. Ga. 2006). inability to prepay fees and costs without foregoing the basic necessities of life. Pa Adkins, 335 US. at 339. Palsection 1915 does not, however, create an absolute right to proceed HII, ANALYSIS in civil actions without payment of costs. The statute conveys 3 The Court proceeds as follows. It first addresses the only a privilege to proceed to those litigants unable to pay Magistrate Court's Recommendation to deny Plaintiff's □□□ □ gg status and to dismiss her case, as well as Plaintiff's objections filing fees when the action is not frivolous or malicious. thereto. The Court ultimately rejects the Magistrate Court's v. United States, 415 F.2d 1115, 1116 (5th Cir. Recommendation, and grants Plaintiff IFP status for purposes 1969). of dismissing her case, without prejudice, under frivolity review. Finally, the Court addresses Plaintiffs two other Pa 28 U.S.C. § 1915(€)(2)(B)(ii) requires a federal court to motions in the light of the dismissal of her IFP application dismiss an in forma pauperis complaint if it determines that and complaint. the complaint fails to state a claim for relief. To state a claim for which relief may be granted, a plaintiff may not merely A. The Magistrate Judge's Recommendation plead facts that make a claim to relief conceivable; instead, Regarding Indigency a plaintiff must plead sufficient facts to demonstrate that a Twice now the Magistrate Judge has directed Plaintiff to file claim is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 4 completed IFP financial affidavit to prove her indigency. 433, 570 (2007). An IFP complaint must also be dismissed Doe. Nos. [2]; [4]. Regarding Plaintiff's amended affidavit, under cction 1915 if it is frivolous or malicious, or secks _ the Magistrate Judge determined that Plaintiff corrected some of the original omissions but failed to answer all the questions monetary relief from an immune defendant. USC. § provided. Doc. No. [4]. The Magistrate Judge also questioned 1915(e)(2)(B)G), (itd. the veracity of Plaintiff's affidavit given that she asserted such a trivial monthly income. Id. As such, the Magistrate Court Plaintiff files her amended complaint pro se and so the Court ultimately determined that it had insufficient information to will “liberally construe[ ]” it. Pa irickson v. Pardus, 551 U.S. determine if Plaintiff qualified for IFP status and ordered 89, 94 (2007) (citing Estelle v. Gamble, 49 U.S. 97, 106 Plaintiff to refile the affidavit or pay the filing fee within 21- (1976)). days of its July 20, 2022 order. Id.

18-01, NDGa. ® Unless the Parties have consented to proceed Plaintiff did not further amend her financial affidavit orpayof before a Magistrate Judge, only after a the IFP review filing fee, and so, on November 9, 2022, the Magistrate Court process is complete does the submission to the Magistrate recommended denying Plaintiff IFP status and dismissing —_ Judge terminate. See id. This delegation to Magistrate Judges the case for failure to follow the Court's directions. Doc. Fa No. [6]. Plaintiff objected. Doc. No. [8]. The Court has complies with the statutory requirements under □□ □□ U.S.C. distilled Plaintiff's objections to be that: (1) that the Report § 636. Indeed, the Eleventh Circuit has implicitly endorsed a and Recommendation was incomplete, (2) that Plaintiff did Magistrate Judge's review of IFP applications and dismissal not consent to a Magistrate Judge resolving her case, (3) the based on failure to meet the statutory requirements.’ See, treatment of the case lacked speedy resolution, (4) the Clerk's ex., Phomas v. Clayton Cnty. Bd. of Comm'ts, No. Office erred under Rule 79 for failing to issue a summons, 22-10762, 2023 WL 1487766, at *4 (11th Cir, Feb. 3, 2023) (5) her indigency status in her criminal case proves that she ra □ meets the indigency requirement to proceed IFP, and (6) (“With respect to the section 1915 review, the district the Recommendation violates her constitutional rights. See Court (and magistr ate judge) did exactly what the statute Doc. No. [8]. The Court addresses these objections in two authorizes: screen [petitioner's] in forma pauperis complaint categories: those that relate to Plaintiff's indigency application 20d then dismiss the claims it determined [petitioner] had and those that do not. failed to adequately plead.”(emphasis added)). Accordingly, the Court overrules Plaintiff's objections relating to her IFP application being considered by a 1, Plaintiff's Objections Unrelated to Her IFP Status Magistrate Judge (Doc. No. [8], 1). Moreover, given that In large part, Plaintiff's objections to the Report and the Magistrate's review of the application was limited to Recommendation do not address the reason the Magistrate a neney teen ne Ang Court □□□ Judge recommended dismissing her case—that her financial objections ms the That there udees □ an affidavit did not provide the Magistrate Judge with adequate oto es id a bE were it □□ □□□ information to assess indigency. Plaintiff objects primarily to act OF Concmustons ° aw, Ie. at ) because the Magistrate the process and procedure in her case, namely that her IFP Judge was only required to, and indeed completed, thorough application was submitted to a Magistrate Judge for initial consideration of Plaintiff's financial affidavits to determine review without her consent, that the case has not been handled indigency, expeditiously, that the Recommendation failed to contain Nor d Plaintiff’ rai lid. objecti dine th findings of fact or conclusions of law, and that the Clerk's Che Ki vel ant . raise @ val © □□□ 3 Unde R office has failed to issue a summons in this matter. cts at ure to issue @ Summons. ~ abe. □□□□□ A(b), Plaintiff is responsible for presenting a summons to the The Court overrules Plaintiff's objections. First, the Court clerk and serving it on Defendant, even when proceeding in . . : : j p i * ited States, . □ > acknowledges that Plaintiff's case has been in the preliminary forma paup ens Tupet_v. United States 304 F. App’x 776 IFP process longer than is ideal. The lengthiness of 780 (11th Cir. 2008). While Plaintiff attached a summons these pending submissions, however, have not created any to eae ne ok wan [5-2], it ‘ony after reason for rejecting the Magistrate Judge's Recommendation, ° ourt ctermunes tha am m may Proce’ in forma especially given that part of the delay has been a result pauperis and has stated a non-frivolous claim that the Court of Plaintiff's inadequate financial affidavits and failure to crit Clerk one we me sume om to _. . Cf. y_V. g. Co., respond to the Magistrate Judge's orders. Thus, Plaintiff's aintil for compiction uey es aller □□□□ ° . _ No. CIV.A.08-0415-WS-C, 2008 WL 4490621, at *1 (S.D. objection on this basis is overruled (Doc. No. [8], 3-4). Ala. § 59. 2008) (disallow Cletk § □ The Court, however, commits to Plaintiff that any further a. Sept. he 2 tt hed ne . ted IEP ete a consideration of her case (including any amendments to her summons when @ p aint □ a not een grante status complaint) will proceed expeditiously. because “federal courts ‘will ordinarily refuse to allow the □ litigation to proceed beyond the filing of a complaint until *4 The procedural treatment of Plaintiff's case, moreover. the fee is paid or a motion to proceed in forma pauperis is has not been erroneous. Submissions to proceed IFP have Pees i eee wl ase a ee been delegated to Magistrate Judges. Sce Standing Order VT » 1 (MLD. Fla. Dee.

20, 2007)). Accordingly, the Clerk issuing a summons inthis available to pay all of the household bills, much less court case would be premature and Plaintiff's objection is overruled. fees.” Doc. No. [8], 2. While the Magistrate did not have the advantage of Plaintiff's representation in assessing her In sum, the Court overrules Plaintiff's objections that she has IFP financial affidavit, the Court finds this representation, unconstitutionally failed to recetve fair and equal treatment in conjunction with the information in Plaintiff's financial in her case (Doc. No. [8], 4). Rejecting the Magistrate affidavit, supports affording IFP status. Judge's recommendation on these grounds is unwarranted and Plaintiff's objections on these issues are hereby overruled. Plaintiff also indicates in support of her IFP status that she has been appointed counsel for indigency in her criminal case. Id. at 3. While somewhat unclear, but the Court understands 2. Plaintiff's Objections Regarding Her IFP Status Plaintiff to be stating that she has qualified as indigent in the criminal proceedings underlying her IFP application and thus Plaintiff does, however, raise an objection to the Magistrate's Should be considered indigent for purposes of proceeding IFP. determination that she does not qualify as indigent (id. at □□□ See id. (“Plaintiff[’s] eligibl[ility] for a private attorney by 3), and the Court agrees with Plaintiff. Thus, the Court grants _ the State of Georgia Public Defender's Atlanta Office, then her IFP status and will consider her application's complaint — [makes] the Plaintiff eligible for indigency status in this civil for non-frivolous claims. matter as well.”). There is some indirect support for Plaintiff's argument that qualifying as indigent in one proceeding *5 Initially, the Court makes clear that the Magistrate Supports a finding of indigency in another court proceeding. Court was correct to conduct a searching review of Plaintiffs €f- Winford v. Samuel, No. 3:16-CV-816-J-34PDB, 2017 WL financial affidavit to determine if IFP status ought to be — 11221332, at *1 (M.D. Fla. Aug. 30, 2017) (“Having found afforded. The Court has no intention of communicating that _ [petitioner] is eligible to proceed IFP in another case, the Magistrate Judges should not closely scrutinize IFP financial | Court finds he is eligible to proceed IFP in these □□□□□□□□□ affidavits. In fact, such scrutiny is required given that “a Johns v. United States, No. CIV.A. 09-0386-WS-C, 2011 WL litigant whose filing fees and court costs are assumed by the 1344245, at *1 (S.D. Ala. Apr. 8, 2011) (“[Petitioner] has public ... lacks an economic incentive to refrain from filing _ ©Stablished his indigency, the undersigned having appointed oy Fa the Federal Public Defender to represent the incarcerated malicious, or repetitive lawsuits. Neitzke V. petitioner in this matter on October 13, 2010.”); United Williams, 490 U.S. at 324. Close review is further appropriate sites y Catalano, No. 8:04-CR-348-T-24TGW, 2010 WL because proceeding IFP is a privilege, not an entitlement, for 11519651, at *1 (MLD. Fla. Mar. 1, 2010) (discussing, under which courts have discretion to grant. See FP! Rowland v. Cal. the Federal Rules of Appellate Procedure, that an indigency Men's Colony, Unit II Men's Advisory Council 506 U.S. 194, determination at the district court may apply to in forma 198 (1993); Pals USC. § 1915(a)(1) (stating that courts pauperis status on appeal if there is a good faith basis for the “may authorize the commencement” of IFP actions (emphasis appeal). Thus, while certainly not sole basis for the Court's added)). decision, Plaintiff's appointment of criminal counsel also supports granting her IFP status. Upon review of Plaintiff's amended financial affidavit and *6 Because the Court disagrees with the Magistrate Judge's especially in the light of Plaintiff's representations in her objections to the Report and Recommendation, however, the order (Doe. No. [4)) determining that IEP status could not be Court disagrees with the Magistrate Judge's conclusion that granted on Plamtiff's application, this order must be vacated IFP status should be withheld from Plaintiff here. While to the extent that Plaintiff's failure to follow the order cannot 4: . . be a basis for dismissing her case. The Court thereby rejects Plaintiff did not fully complete her financial affidavit, the . Court is not convinced that if the omitted information had the Magistrate Judge's Recommendation (Doe. No. [6]) and been included (i.e., the value of her household's cars and er ants Plaintiff 1FP status for purposes of dismissing her case whether Plaintiff has used non-attorney services in connection (given the ultimate consideration of her complaint, discussed with this case) that Plaintiff would be deemed able to pay ‘#4. for her case. Instead, Plaintiff attests in her objections to the Recommendation that “Plaintiff is unemployed, her husband receives Social Security Disability, and there are no funds

B. Plaintiff's Complaint Fails to Assert a Non- *7 Plaintiff's remaining motions seek a pre-trial conference Frivolous Claim Against the Sole Named Defendant and scheduling order (Doc. No. [9]) and an expedited status The Court has now granted Plaintiff IFP status. An indigency conference (Doc. No. [10]}. As the Court has determined determination, however, is not the only requirement for Plaintiff's application to proceed IFP must be denied and her complaint dismissed, these motions pertaining to scheduling Plaintiff to file a case under Pa2g US.C. § 1915. In matters are now MOOT. Accordingly, the Court DENIES fact, Plaintiff's complaint must state a non-frivolous claim _ plaintiff's motions. Doc. Nos. [9]; [10]. of relief. See, e.g., Fisher _v. Equifax Servs. LLC, No. 115CV00233TWTGGB, 2015 WL 13777724, at *2 (N.D. Ga. Feb. 18, 2015), report and recommendation adopted, No. IV. CONCLUSION 1:15-CV-233-TWT, 2015 WL 13777723 (N.D. Ga. Mar. 9, For the foregoing reasons, to the extent necessary, the 2015); Edwards v. Sneed, No. CIV.A.1:08CV1294TWT, 2008 Court VACATES the Magistrate's Order denying Plaintiff WL 1902064, at *1 (N.D. Ga. Apr. 25, 2008). Again, anIFP —_IFP status based on her most recent financial affidavit and complaint must be dismissed if it is frivolous, fails to state a objections to the Report and Recommendation. Doc. No. claim for relief, or seeks monetary relief against an immune [4]. The Court REJECTS the Magistrate's Recommendation to deny Plaintiff IFP status and dismiss the case. Doc. defendant. Pas USC. § T9I1S()2IB). No. [6]. In its discretion, the Court GRANTS Plaintiff IFP Here, Plaintiff asserts various constitutional claims under status for purposes of DENYING her IFP application and Section 1983 and other state law actions for damages against DISMISSING WITHOUT PREJUDICE her complaint as one named Defendant, the State of Georgia. The State of itis frivolous and fails to state a claim. See Doc. Nos. [1], [3]. Georgia, however, enjoys soversin tmmunity for claims filed Because Plaintiff is proceeding pro se, the Court GRANTS by citizens of other states and citizens of its own state under . “a: Plaintiff leave to file an amended complaint within fourteen the Eleventh Amendment. v, Skelton, 840 F.3d 1334, (14) days of the date of the Order. If the Plaintiff files such 1337 (11th Cir. 2016) (“A state is immune from a suit for an amended complaint in the time allowed, the Clerk is damages in federal court by one of its own citizens[.]” (citing § DIRECTED to reopen the case and resubmit the matter to v. Louisiana, 134 US. 1, 14-17 (1890). The the Court for frivolity review. The Court warns Plaintiff that State of Georgia has not waived its sovereign immunity in a failure to correct the deficiencies identified in this Order federal courts, O.C.G.A. § 50-21-23(b), and Congress did may result in a dismissal of the claims with prejudice. See not abrogate sovereign immunity in passing Section 1983. Pa@ pryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Presnell v. Paulding Cnty., 454 F. App'x 763, 766 (11th Cir. 2011) (citing Robinson v. Georgia Dept. of Transp., 966 Finally, given that the Court dismisses Plaintiff's case, the F.2d 637, 640 (11th Cir. 1992)). Thus, as the primary relief — Court also DENIES AS MOOT Plaintiff's Motions for a Pre- requested against the State of Georgia is monetary damages, _ Trial Conference and Scheduling and for an Expedited Status Plaintiff's claims are barred by sovereign immunity.’ Thus, | Conference. Doc. Nos. [9]; [10]. Plaintiff's application to proceed IP is denied under Plog IT IS SO ORDERED this 30th day of May, 2023. U.S.C. § 1915(e)(2)(B) and this case is dismissed. All Citations C. Plaintiff's Motions for a Pre-Trial Conference and Expedited Status Conference Slip Copy, 2023 WL 4539770

Footnotes

1 All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.

2 The Complaint was also separately added to the docket with the Report and Recommendation on November 9, 2022. See Doc. No. [5]. 3 Plaintiff asserts that a jury trial had been scheduled for April 14, 2020. Doc. No. [1-1], 5. While not in Plaintiff's complaint and thereby not considered for purposes of resolving the motions in this Order, the Court acknowledges that this trial date was in the beginning of the Covid-19 pandemic. 4 Although Congress used the word “prisoner,” P2lsection 1915 also applies to non-prisoner indigent litigants. P@iMartinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004). 5 Decisions of the former Fifth Circuit issued prior to October 1, 1981, are binding precedent on this court. See P&Q@ Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981). 6 The Standing Order can be found on the Court's website, under the “Standing Orders” section. See https:// www.gand.uscourts.gov/content/standing-order-18-01. 7 The Court is aware of some debate over a Magistrate Judge's authority to enter an order directly denying IFP status. See Sanders v. Bayview Loan Servicing, LLC, No. 119CV01008LMMAJB, 2019 WL 2354969, at *2 n.2 (N.D. Ga. Mar. 5, 2019). Here, however, the Magistrate Judge only recommended dismissing Plaintiff's IFP application, she did not order it, and thus the Court need not weigh in on this issue. 8 Under other circumstances the Court would vacate the Magistrate Judge's order and resubmit Plaintiff's IFP affidavit to the Magistrate Judge for review in the light of the representations made in Plaintiff's objections to the Report and Recommendation. Given the length of time that this IFP application has been pending, however, and that the Court ultimately determines there is no substantive claim asserted in Plaintiff's complaint, the Court chooses to expedite its frivolity review of Plaintiff's complaint by granting her IFP status for purposes of dismissing her complaint. 9 To the extent that Plaintiff requests injunctive relief—e.g., for the Court to “[e]nter an order for the Defendant to dismiss the criminal case against the Plaintiff with prejudice” or “[e]nter an order for an independent and professional ethical investigation in this matter” (Doc. No. [1-1], 10)—the Court cannot order such relief. Plaintiff indicates that her criminal case is ongoing. Id. at 5 (stating that no jury trial had been held and that the case was still open as of December 1, 2021). There is no suggestion that the criminal case against Plaintiff has been closed—and, in fact, the relief requested (an order dismissing the criminal case) implies that the proceedings are ongoing. A federal court should not interfere with ongoing state criminal proceedings that implicate a state interest and in which there is opportunity to raise the federal claim. See Leonard v. Ala. State Bd. of Pharmacy, 61 F.4th 902, 907 (11th Cir. 2023). Plaintiff has not alleged such bad faith, harassment, or irreparable injury that would permit the Court to interfere with the ongoing prosecution. See, e.g., Kyser v. Florida, No. 3:09CV56/MCR/MD, 2009 WL 762199, at *2 (N.D. Fla. Mar. 19, 2009). Accordingly, to the extent Plaintiff requests injunctive relief, the Court cannot grant such relief.

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