Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 1 of 8 PageID 16
`
`STEVE CUMMINGS,
`
`Plaintiff,
`
`-VS-
`
`Case No. 6:07-cv-748-0rl-22UAM
`
`GEORGE BUSH, JR., RICHARD
`CHENEY, DAN BARTLETT, KARL
`ROVE, CABLE NEWS NETWORK, INC.,
`LARRY KING,
`
`REPORT AND RECOMMENDATION
`
`TO THE UNITED STATES DISTRICT COURT
`
`This cause came on for consideration without oral argument on the following motion:
`
`MOTION: MOTION FOR LEAVE TO PROCEED IN FORMA
`PAUPERIS (Doc. No. 3)
`
`FILED:
`
`May 1,2007
`
`-
`
`THEREON it is RECOMMENDED that the motion be DENIED. Further
`RECOMMENDED that the complaint be dismissed as being frivolous.
`
`I
`
`FACTUAL BACKGROUND
`
`Steve Cummings proceeding pro se filed his complaint for a preliminary injunction. The
`
`complaint is largely a jumble of nonsensical allegations. Although the complaint references "FOIA"
`
`(Freedom of Information Act) and asks two specific questions. the complaint is devoid of any facts
`
`that Curnmings has made a proper FOIArequest to any specific government agency. Further, although
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 2 of 8 PageID 17
`
`Cummings seeks to sue President George Bush individually, Cummings alleges no facts regarding any
`
`alleged acts by the President. Similarly, C~lmmings alleges no facts to support any wrongdoing by any
`
`of the other named defendants in this action.
`
`11.
`
`THELAW
`
`A.
`
`The Statute and Local Rules
`
`The United States Congress has required that the district court review' a civil complaint filed
`
`in formapazrperis. and shall dismiss a complaint that is frivolous, malicious, or fails to state a claim.
`
`See 28 U.S.C. 8 19 15. The mandatory language applies to all proceedings in forma pauperis. The
`
`statute 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
`(iii) seeks monetary relief against a
`defendant who is immune from
`such relief.
`
`28 U.S.C. tj 1915 (e)(2).
`
`The Local Rules of the United States District Court for the Middle District of Florida also
`
`govern proceedings in forrnrrpauperis. See Local Rule 4.07. Pursuant to Local Rule 4.07 (a), the
`
`Clerk dockets, assigns to ajudge, and then transmits to the judge cases commenced informapuuperis.
`
`Local Rule 4.07 (a). The district court assigns to United States Magistrate Judges the supervision and
`
`' Section 191 5A of 28 U.S.C. requires the district coun to screen only prisoner's complaints. Nevertheless, the
`
`district court screens other complaints pursuant to 28 U.S.C. $ 191 5 (e)(2) and Local Rule 4.07 (a).
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 3 of 8 PageID 18
`
`determination of all civil pretrial proceedings and motions. Local Rule 6.0 1 (c)(18). With respect to
`
`any involuntary dismissal or other final order that would be appealable if entered by a district judge,
`
`the United States Magistrate Judge may make recommendations to the district judge. Id. The Court
`
`may dismiss the case if satisfied that the action is frivolous or malicious under 28 U.S.C. 5 19 15, or
`
`may enter such other orders as shall seem appropriate. Local Rule 4.07 (a).
`
`B.
`
`Discretion Under 28 U.S.C. 5 1915
`
`Section 191 5 grants broad discretion to the district courts in the management of in forrna
`
`puuperis cases, and in the denial of motions to proceed in forma pauperis when the complaint is
`
`frivolous.' Clark v. Ga. Pardons and Paroles Bd., 91 5 F.2d 636, 639 (1 lth Cir. 1990); Phillips v.
`
`Mnshbzwn, 746 F.2d 782,785 (1 1 th Cir. 1984). The pauper's affidavit should not be a broad highway
`
`into the federal courts. Phillips, 746 F.2d at 785; Jones v. Atrlt, 67 F.R.D. 124, 127 (S.D.Ga. l974),
`
`qffd without opinion, 5 1 6 F.2d 898 (5th Cir. 1975). Indigence does not create a constitutional right
`
`to the expenditure of public funds and the valuable time of the courts in order to prosecute an action
`
`which is totally without merit. Phillips, 746 F.2d at 785; Collins v. Cundy, 603 F.2d 825,828 (10th
`
`Cir. 1979).
`
`C.
`
`Frivolous and Malicious Actions Under 28 U.S.C. 5 1915 (e)(2)(B)(i)
`
`A lawsuit is frivolous if the plaintiffs realistic chances of ultimate success are slight. Clark
`
`v. Go. Pardons and Paroles Bd , 9 1 5 F.2d 636,63 9 (1 1 th Cir. 1 990). The trial court must determine
`
`whether there is a factual and legal basis, of constitutional or statutory dimension, for the asserted
`
`I
`
`I
`
`1
`1
`
`least one court of appeals views the Prisoner Litigation Reform Act of 1996 as removing some of a district
`
`' ~ t
`courf's discretion because it requires the district court to dismiss a case if it determines that the action or appeal is
`frivolous, malicious, or fails to state a claim under 28 U.S.C. $ 19 15 (e J( 2 1. See Clfalp v. Scott, 1 15 F.3d 308 (5th Cir.
`1997).
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 4 of 8 PageID 19
`
`wrong. Clark. 91 5 F.2d at 639 (1 1 th Cir. 1990). A district court should order a 5 191 5 dismissal only
`
`when a claim lacks an arguable basis in law. Neitzke v. Willinn~s. 490 U.S. 3 19, 325 (1 989). Claims
`
`may lack an arguable basis in law because of either factual or legal inadequacies. Id.
`
`1.
`
`Frivolous Factual Allegations
`
`Factual allegations are frivolous for the purpose of 8 191 5 when they are "clearly baseless."
`
`Denton v. Hernandez, 504 U.S. 25, 32 -33 (1992). citing Neitzke v. Williams, 490 U.S. 319,325-28
`
`(1989). The district court may dismiss even meritorious legal theories under 9 191 5 if the factual
`
`allegations in the complaint are "clearly baseless." Denton. 504 U S . at 32 - 33. "Fantastic" or
`
`"delusional" allegations are examples of clearly baseless allegations. Id. Also, factual allegations in
`
`the complaint may be "clearly baseless" if they are contradicted by other allegations in the complaint.
`
`Battle v. Centrul State Hosp., 898 F.2d 126, 130 n.3 (1 1 th Cir. 1990), aff'd without opinion after
`
`remand, 114 F.3d 1200 (1 1 th Cir. 1997).
`
`Unsupported conclusory factual allegations also may be "clearly baseless." For. example. a
`
`district court may properly dismiss a 5 1983 complaint as frivolous pursuant to 5 191 5 where the
`
`complaint makes no particularized showing -- and provides no supporting operative facts -- in support
`
`of the naked assertion of a conspiracy between a state judge and private defendants. Phillips v.
`
`Mashburn, 746 F.2d 782, 785 (1 lth Cir. 1984) (insufficient state nexus under 5 1983 without
`
`conspiracy); crccord, Sooner Products Co. v. McBride, 708 F.2d 5 10, 5 12 (I 0th Cir. 1983). In
`
`Phillips, the Court of Appeals reasoned that the in forma pauperis plaintiff must provide an adequate
`
`basis for believing that such a conspiracy existed before the district court is required to compel the
`
`defendants to answer. PhiNips. 746 F.2d at 785. This is necessary to protect the courts, state oficials,
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 5 of 8 PageID 20
`
`and private defendants from malicious or frivolous suits filed by plaintiffs who lack an economic
`
`incentive to refrain from filing them. Phillips, 746 F.2d at 785 citing Cruz v. Beto, 405 U.S. 3 19,326
`
`- 27 (1972); accord, Denton, 504 U.S. at 33.
`
`If a complaint presents an arguable basis in law and asserts something other than fanciful
`
`factual allegations, the district court may not dismiss an action until the court has conducted a
`
`sufficient inquiry to determine whether the plaintiffs realistic chances of ultimate success are slight.
`
`Clark, 915 F.2d at 639; Moreland v. Wharton, 899 F.2d 1168, 1169 - 70 (1 lth Cir. 1990). To do
`
`otherwise -- i.e., to allow for szra sponte dismissal of in forma pauperis cases that present arguable
`
`legal or factual questions -- would be to condone differential judicial treatment of cases based solely
`
`on whether a litigant files a complaint accompanied by a filing fee or by an affidavit of indigence. See
`
`Battle v. Central State Hosp., 898 F.2d 126, 129 (1 1 th Cir. 1990). If plaintiffs chances of ultimate
`
`success remain slight after sufficient inquiry, the district court may then amply protect a
`
`nonprofessional pro se litigant by dismissing his suit without prejudice, and by allowing him to file
`
`a new complaint in forn~apalrperis that alleges sufficient facts to substantiate his claim. Phillips. 746
`
`F.2d at 785.
`
`2.
`
`Frivolous Legal Theories
`
`Legal theories are frivolous when they are "indisputably meritless." Neitzke, 490 U.S. at 329:
`
`Battle v. Central State Hosp., 898 F.2d 126, 129 (I 1 th Cir. 1990). Section 1 9 1 5 authorizes the
`
`dismissal of "claims of infringement of a legal interest which clearly does not exist." See Neitzke, 490
`
`U.S. at 327.
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 6 of 8 PageID 21
`
`The district court may dismiss a complaint under 9 191 5 even if it states a claim for relief.3
`
`Clark v. Ga. Pardons and Paroles Bd., 9 1 5 F.2d 636, 639-40 (1 1 th Cir. 1990); Jones v. Bales, 5 8
`
`F.R.D. 453.463-64 (N.D.Ga. 1 972), uff for reasons stated in district court order, 480 F.2d 805 (5th
`
`Cir. 1973); see also Neitzke, 490 U.S. at 326 - 29 (Rule 12 (b)(6) and former section 191 5 (d) serve
`
`distinctive goals). It is an abuse of discretion. however, to conclude that an informapauperis case
`
`is frivolous -- realistically has no better than a slight chance of success -- because of weaknesses on
`
`the face of the complaint as long as the complaint presents an arguable basis in law and fact. A
`
`complaint which states a claim for the purposes of Rule 12 (b)(6) -- that is, one clearly having a basis
`
`in law -- may still be frivolous if it lacks an arguable basis in fact, for example. asserting fantastic
`
`facts. Clark, 91 5 F.2d at 639.
`
`Even if the complaint legally states a claim, and the facts are not fantastic, a district court may
`
`nevertheless dismiss on grounds of frivolousness. For example, a 8 191 5 dismissal is appropriate if
`
`an affirmative defense would defeat the action. Clark, 91 5 F.2d at 640. Also, the absolute immunity
`
`of the defendant would justify the dismissal of a claim as frivolous. See Clark, 915 F.2d at 640;
`
`Fuller v. Ga. State Bd. of Pardons & Paroles, 85 1 F.2d 1307, 13 10 (1 1th Cir. 1988) (parole board
`
`members entitled to absolute quasi-judicial immunity from suit for damages); Patterson v. Aiken, 628
`
`F.Supp. 1068, 1072 (N.D. Ga. 1985), uf'd without opinion. 784 F.2d 403 (1 1 th Cir. 1986) (in-forma
`
`pazperis complaint against federal district judges dismissed as frivolous because of absolute
`
` h he analysis for a dis~nissal for failure to state a claim on which relief may be granted under 28 U.S.C. 5 191 5
`(e)(2)(B)(ii) is somewhat different from the analysis for a dismissal as frivolous under 28 U.S.C. 5 1915 (e)(2)(B)(i). The
`language of 5 1915 (e)(Z)(B)(ii) tracks the language of Fed. R. Civ. P. 12 (b)(6). so the courts view the allegations in the
`complaint as true when assessing failure to state a claim under $ 191 5 (e)(Z)(B)(ii). A4irchell v. Farcass, 1 12 F.3d 1483,
`1490 (1 1th Cir. 1997). A judge performing an examination for frivolity under 8 1915 (e)(2)(B)(i), however, is not required
`to assume the truth of the allegations. See Cofield v. Alabama Plrhlic Sentice Contmission ,936 F.2d 5 12.5 15 ( 1 1 th Cir.
`1991).
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 7 of 8 PageID 22
`
`immunity); Kirnble v. Beckner, 806 F.2d 12%; 1257 (5th Cir. 1986) (in forma patperis suit against
`
`judge, prosecutor, and witnesses dismissed based on immunity given judicial officers); see also
`
`Crisafi v. Holland, 6655 F.2d 1305, 1308 (D.C.Cir. 198 1); Franklin i~. State of Oregon. 563 F-Supp.
`
`13 10, 1324, 1332-33 (D. Ore. 1983), aff'd in part and rev 'd in par[. 745 F.2d 122 1 (9th Cir. 1984).
`
`Res judicata and collateral estoppel are other affirmative defenses which justify dismissal of a claim
`
`as frivolous. See Patterson, 628 F.Supp. at 1076; Wilson v. Lynazrgh, 878 F.2d 846 (5th Cir. 1989)
`
`(complaint dismissed because it reasserts allegations litigated in previous suit), cert. denied, 493 U.S.
`
`969 (1989). The expiration of the statute of limitations is an affirmative defense the existence of
`
`which warrants a dismissal as frivolous. See Fmnklin. 563 F.Supp. at 1330, 1332. When the defense
`
`is apparent from the face of the complaint or the court's records, courts need not wait and see if the
`
`defense will be asserted in a defensive pleading. Clork. 9 1 5 F.2d at 640.
`
`111.
`
`ANALYSIS
`
`Of the allegations that can be deciphered, most of them are fantastic or delusional. Examples
`
`of those allegations are that the Republican/Democratic political parties have illegally surveilled and
`
`tape recorded Cummings' living quarters from 1999 to the present (Docket 1 at l), "the murderer
`
`rudolph giuliani" (Docket 1 at 2), the president's wife is a "hit and run wife" (Docket 1 at 3), "who
`
`PAID-OFF, the Federal Government/State of New York, to NOT prosecute the murders
`
`(rodriguez/boudreau/cho/cunanan~etc./etc.etc.. . . . . . . Israeli 'bondholders,' - or 'James Bond' himself?
`
`Steven Speilberg, Ari Abramson and his mother, the 'women in green.' the Republican and
`
`Democratic parties - who?" (Docket 1 at 3). The allegations of the complaint are clearly frivolous.
`
`

`
`Case 6:07-cv-00748-ACC-UAM Document 5 Filed 06/14/07 Page 8 of 8 PageID 23
`
`To the extent the complaint references FOIA and asks questions to which Curnmings wants
`
`answers, the con~plaint fails to state a claim for violation of FOIA. Under FOIA, federal agencies are
`
`obligated to make certain records available to the public upon proper request to the agency. 5 U.S.C.
`
`€j 552. On complaint, the district court has jurisdiction to enjoin an agency from withholding records
`
`and to order the production of improperly withheld records. 5 U.S.C. 5 552(a)(4)(B). Curnmings'
`
`complaint is not the proper method to make a FOIA request, and the complaint fails to state a claim
`
`over which this Court has jurisdiction.
`
`IT IS RECOMMENDED THAT:
`
`1.
`
`The Court deny Plaintiffs motion to proceed in forma pauperis as the complaint is
`
`frivolous and fails to state a claim.
`
`2.
`
`The Court dismiss the case pursuant to 28 U.S.C. 5 191 5 (e)(2).
`
`Failure to file written objections to the proposed findings and recommendations contained in
`
`this report within ten (1 0) days from the date of its filing shall bar an aggrieved party from attaclung
`
`the factual findings on appeal.
`
`Recommended in Orlando, Florida on
`
`&6Aj?$:fkl
`
`DONALD P.
`
`IETRICH
`
`UNITED STATES MAGISTRATE JUDGE
`
`Copies furnished to:
`The Honorable Anne C. Conway
`Counsel of Record
`Unrepresented Party