Desravines v. Judge Thomas Kirkland, Judge Emerson R. Thompson, Jr., Judge Ted Coleman, Judge Charles N. Prater, Judge, John Marshall Kest, the Orange Cnty. Court, Citi Mortg., Inc.
| Decision Date | 20 November 2014 |
| Docket Number | Case No. 6:14-cv-1826-Orl-28GJK |
| Parties | JOSE DESRAVINES, GISLENE LAURORE, Plaintiffs, v. JUDGE THOMAS KIRKLAND, JUDGE EMERSON R. THOMPSON, JR., JUDGE TED COLEMAN, JUDGE CHARLES N. PRATER, JUDGE, JOHN MARSHALL KEST, THE ORANGE COUNTY COURT, CITI MORTGAGE, INC., CASSANDRA M. RIGAUD, ESQ., LAW OFFICES OF DAVID J. STERN, P.A., PROVEST LLC, PENNYMAC LOAN SERVICES, LLC, ROBERT S. KAHANE, ESQ., CLIVE M. RYAN, ESQ., REENA PATEL SANDERS, ESQ., KAHANE & ASSOCIATES, P.A., PACIFIC STATES CAPITAL, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause came on for consideration without oral argument on the following motions filed herein:
This is at least the fourth action filed pro se by Jose Desravines and Gislene Laurore (collectively, the "Plaintiffs") in which they seek to assert claims, in addition to other claims not relevant here, against state judges who are absolutely immune from suit and private parties who are not subject to suit under the legal theories of relief Plaintiffs assert. See Desravines v. Orange County Sheriff's Office, et. al., Case No. 6:10-cv-851-Orl-28GJK, Doc. Nos. 50, 52, 78-79 (M.D. Fla. 2010) ();1 Desravines v. Orange County Sheriff's Office, et. al., Case No. 6:10-cv-1773-Orl-31DAB, Doc. Nos. 7-8 (M.D. Fla. 2010) (same); Desravines v. Fla. Dep't of Fin. Servs., et. al., Case No. 6:11-cv-235-Orl-22DAB, Doc. Nos. 3, 5 (M.D. Fla. 2011) (same); Desravines v. Walmart, et. al., Case No. 6:11-cv-1806-Orl-22TBS, Doc. Nos. 49 (M.D. Fla. 2011) (§ 1983 action dismissed against private parties). In each of the prior cases, the report and recommendations, as well as the orders adopting the same, have clearly, unequivocally, and repeatedly explained why Plaintiffs' various complaints were due to be dismissed. Id. In Case No. 6:10-cv-851, Doc. No. 78, the Eleventh Circuit affirmed the Court's dismissal based on judicial immunity and the inapplicability of § 1983 to private parties who are not acting under the color of state law. See Desravines v. Orange County Sheriff's Office, 520 F. App'x 946, 947-48 (11th Cir. 2013) (unpublished). Undeterred by their numerous prior dismissals, Plaintiffs have now filed a frivolous complaint against five state court judges, numerous attorneys, law firms, and other private entities related to a 2008 foreclosure action. Doc. No. 1.
On November 7, 2014, Plaintiffs filed a complaint (the "Complaint") against the following defendants: state Judges Thomas Kirkland, Emerson R. Thompson, Jr., Ted Coleman, and Charles N. Prater (collectively, the "Judges"); the Orange County Court, which is Florida's Ninth Judicial Circuit Court, in and for Orange County, Florida (the "Ninth Circuit"); Citi Mortgage, Inc. ("Citi"); Provest LLC ("Provest"); PennyMac Loan Services, LLC ("PennyMac"); Pacific States Capital ("PSC"); Mortgage Electronic Registration Systems, Inc. ("MERS"); attorneys Cassandra M. Rigaud, Esq., Robert S. Kahane, Esq., Clive M. Ryan, Esq., and Reena Patel Sanders, Esq. (collectively, the "Attorneys"); and the Law Offices of David J. Stern, P.A. and Kahane & Associates P.A. (collectively, the "Firms"). Doc. No. 1 at 1-7.
In short, the Complaint alleges that between June 13, 2008 and August 25, 2011, the Judges, Ninth Circuit, Firms, Attorneys, the mortgage companies who held or hold Plaintiffs' mortgage, and MERS all conspired with each other to violate Plaintiffs' constitutional rights andto foreclose upon Plaintiffs' mortgage in Case No. 48-2008-CA-14468-O, which was filed on June 13, 2008 by Citi in the Ninth Circuit. Doc. No. 1 at ¶¶ 5-21. Plaintiffs' claims against the Judges are brought pursuant 42 U.S.C. § 1983 for deprivation of Plaintiffs' constitutional rights in their capacity as judges in the foreclosure action. Doc. No. 1 at ¶ 2. Plaintiffs' claims against the Ninth Circuit, Attorneys, Firms, mortgage companies, and MERS are solely brought pursuant to Bivens v. Six Unknown Named Agent of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Doc. No. 1 at 3-5. Plaintiffs request that the Court enter judgment finding that all prior and future orders of the state court in the underlying foreclosure action are "void and have no legal force," and Plaintiffs requests an award of damages from each of the defendants individually in the amount $100,000,000.00. Doc. No. 1 at ¶¶ 20-21.
Now before the Court are Plaintiffs' respective motions to proceed in forma pauperis (the "Motions"). Doc. Nos. 2-3. For the reasons set forth below, it is RECOMMENDED that the Court DENY the Motions, DISMISS the Complaint as to all defendants for several independent reasons, and direct the Clerk to CLOSE the case.
The United States Congress has required that the district court review2 a civil complaint filed in forma pauperis and dismiss any such complaint that is frivolous, malicious or fails to state a claim. See 28 U.S.C. § 1915. The mandatory language of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis. Section 1915 provides:
28 U.S.C. § 1915 (e)(2) (2010) (formerly § 1915 (d)).3
The Local Rules of the United States District Court for the Middle District of Florida also govern proceedings in forma pauperis. See Local Rule 4.07. Pursuant to Local Rule 4.07 (a), the Clerk dockets, assigns to a judge, and then transmits to the judge cases commenced in forma pauperis. Local Rule 4.07 (a). The district court assigns to United States Magistrate Judges the supervision and determination of all civil pretrial proceedings and motions. Local Rule 6.01(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 Section 1915, or may enter such other orders as shall seem appropriate. Local Rule 4.07(a).
Section 1915 grants broad discretion to the district courts in the management of in forma pauperis cases, and in the denial of motions to proceed in forma pauperis when the complaint isfrivolous. Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990); Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984).4 The pauper's affidavit should not be a broad highway into the federal courts. Phillips, 746 F.2d at 785; Jones v. Ault, 67 F.R.D. 124, 127 (S.D. Ga.1974), aff'd without opinion, 516 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 that is totally without merit. Phillips, 746 F.2d at 785; Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979).
A lawsuit is frivolous if the plaintiff's realistic chances of ultimate success are slight or "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Clark v. Georgia Pardons and Paroles Board, 915 F.2d 636, 639 (11th Cir. 1990).5 The trial court must determine whether there is a factual and legal basis of constitutional or statutory dimension for the asserted wrong. Clark, 915 F.2d at 639. Specifically, a complaint is frivolous where it relies on "indisputably meritless legal theor[ies.]" Id. at 327. A complaint is also frivolous where it asserts factual allegations that are "clearly baseless," which, in turn, encompass allegations that are "fanciful," "fantastic," and "delusional." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke, 490 U.S. at 325, 327-28). Accordingly, where a district court determines from the face of the complaint that the legal theories are indisputably meritless or the factual allegations are clearly baseless, the court may conclude that the case haslittle or no chance of success and dismiss the complaint before service has been perfected. Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (per curiam). Critical to the Court's analysis is whether the claims asserted are within the limited jurisdiction of the federal courts. See generally Cogdell v. Wyeth, 366 F.3d 1245, 1247-48 (11th Cir. 2004).
Plaintiffs seek relief against the Judges for their actions, including relief from all of their respective orders and/or judgments, which were taken in their official capacity in the underlying foreclosure action. Doc. No. 1 at ¶¶ 2, 5, 7, 17, 20. As it has been repeatedly explained to the Plaintiffs, "[j]udges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the 'clear absence of all jurisdiction.'" Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). "Absolute judicial...
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