Henning v. Day
| Decision Date | 18 March 2016 |
| Docket Number | Case No: 6:15-cv-927-Orl-40DAB |
| Parties | BRYAN HENNING, Plaintiff, v. RAYMOND DAY, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This cause comes before the Court on Plaintiff's [Second] Application to Proceed in Forma Pauperis (Doc. 6), filed July 6, 2015. On August 26, 2015, Magistrate Judge David A. Baker submitted a report recommending that Plaintiff's application be denied and that the Amended Complaint be dismissed. (Doc. 10). On September 8, 2015, Plaintiff objected to Magistrate Judge Baker's recommendation. (Doc. 11). Plaintiff's objections are ripe for review.
Over a period of approximately four months, Plaintiff, Bryan Henning, has filed seven lawsuits in this district against a total of thirty-eight defendants who he claims have wronged him. This case represents the third installment of Plaintiff's vendetta.1
Plaintiff states that, on June 8, 2013, he was sitting on the shoreline near the Cocoa Beach Pier pursuing his hobby of photography. (Doc. 5, ¶ 17). While he was takingpictures, six individuals who appeared to be intoxicated approached Plaintiff, called him a pedophile, and sought the assistance of a nearby lifeguard to remove Plaintiff from the area. (Id. ¶¶ 19-22). When the lifeguard refused, the six individuals took it upon themselves to "concoct[] a scheme to assault and batter and or kill [Plaintiff]." (Id. ¶ 23). To that end, two of these individuals agreed to provide false statements to police while the other four agreed to attack Plaintiff. (Id. ¶ 24). After gathering other individuals to aid in their attack, a total of seven or eight men, all of whom appeared to be intoxicated, approached and surrounded Plaintiff. (Id. ¶¶ 25-27). Upon an exchange of insults, one of the men charged Plaintiff. (Id. ¶¶ 28-30). In fear for his life, Plaintiff brandished a pocket knife and threatened to stab anyone who came near him. (Id. ¶¶ 31-34). The party of attackers immediately backed away and called the police. (Id. ¶¶ 34-35).
Soon thereafter, Defendant, Don Potenziani ("Officer Potenziani"), arrived at the scene, drew his gun, and pointed it at Plaintiff. (Id. ¶ 37). Plaintiff states that he complied with Officer Potenziani's orders and that Officer Potenziani handcuffed Plaintiff. (Id. ¶¶ 38, 41). After being handcuffed, Officer Potenziani then shouted to the surrounding crowd, "[O]k everyone take a picture now." (Id. ¶ 38). Officer Potenziani additionally searched Plaintiff's belongings, took statements from witnesses, and escorted Plaintiff to a nearby police car. (Id. ¶¶ 39-46). Officer Potenziani ultimately charged Plaintiff with aggravated assault and disorderly conduct. (Id. ¶ 44). The prosecuting attorney later dropped these charges. (Id. ¶ 51).
Plaintiff initiated this lawsuit on June 8, 2015 and filed an Amended Complaint on July 6, 2015. Plaintiff sues Officer Potenziani, the City of Cocoa Beach, six individuals who were involved in the altercation, the current and prior owners of the Cocoa Beach Pier, and a website which posted Plaintiff's mugshot on the Internet. As with his six otherlawsuits, Plaintiff asks to proceed without paying the filing fee. Upon review of Plaintiff's Application to Proceed in Forma Pauperis, however, the Magistrate Judge made a number of determinations which would preclude Plaintiff from doing so. First, the Magistrate Judge noted a number of inconsistencies in Plaintiff's Affidavit of Indigency. (Doc. 10, pp. 4-5). Second, the Magistrate Judge found that Plaintiff failed to invoke the Court's diversity jurisdiction, as Plaintiff's allegations did not satisfy complete diversity among the parties and did not establish an amount in controversy exceeding $75,000. (Id. at pp. 5-6). Lastly, the Magistrate Judge determined that Plaintiff failed to state a claim for relief sufficient to invoke the Court's federal question jurisdiction, as Officer Potenziani is entitled to qualified immunity on the face of Plaintiff's Amended Complaint and no constitutional claim may lie against the City of Cocoa Beach absent a constitutional violation committed by Officer Potenziani. (Id. at pp. 7-15). Plaintiff objects to all of the Magistrate Judge's findings.
A district judge may designate a magistrate judge to hear and determine both dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. When a magistrate judge decides a matter that is dispositive in nature, the magistrate judge must issue a report to the district judge specifying the magistrate judge's proposed findings of fact and the recommended disposition. Fed. R. Civ. P. 72(b)(1). Any party who disagrees with the magistrate judge's decision has fourteen days from the date of the decision to seek the district judge's review of the matter by filing objections to those specific portions of the decision disagreed with. Fed. R. Civ. P. 72(b)(2). The district judge must then make a de novo determination of each issue to which objection is made.Fed. R. Civ. P. 72(b)(3). De novo review "require[s] independent consideration of factual issues based on the record." Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990) (per curiam). The district judge may accept, reject, or modify the report, in whole or in part, or may recommit the matter to the magistrate judge with further instructions. Fed. R. Civ. P. 72(b)(3).
Upon application, a district court may permit a plaintiff to proceed in a civil case without paying the filing fee. 28 U.S.C. § 1915(a)(1). In order to proceed in this way, the plaintiff must demonstrate that he is indigent—that the cost of the filing fee is beyond his means. Indigency does not demand that the prospective plaintiff be utterly destitute. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Rather, all that is required is for the plaintiff to show that paying the filing fee would prevent him from supporting himself and his dependents in the provision of life's necessities. Id. Such a showing is usually accomplished through the plaintiff's submission of a sworn affidavit attesting to his poverty, which must be accepted as true unless there is reason to believe that the plaintiff seriously misrepresents his financial situation. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307 (11th Cir. 2004) (per curiam).
As part of reviewing the plaintiff's application to proceed in forma pauperis, the district court is also obligated to review the initial pleading submitted by the plaintiff and must dismiss any claim that is "frivolous or malicious," fails to state a claim for relief, or seeks relief against a defendant who is immune from suit. See id.; 28 U.S.C. § 1915(e)(2)(B). The purpose of this review is to prevent waste of both judicial and private resources in confronting baseless lawsuits and claims. Neitzke v. Williams, 490 U.S. 319, 327 (1989). Even where a district court has initially found an action not to be frivolous,the court may revisit the issue at any time during the proceedings. See 28 U.S.C. § 1915(e)(2).
"A claim is frivolous if it is without arguable merit either in law or fact" or "if the plaintiff's realistic chances of ultimate success are slight." Fortson v. Georgia, 601 F. App'x 772, 774 (11th Cir. 2015) (per curiam); see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (). A claim may also be frivolous if a defense is obvious from the face of the complaint and the defense would defeat the plaintiff's basis for imposing liability. See Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 & n.2 (11th Cir. 1990). When determining whether a plaintiff states a claim for relief under § 1915(e)(2)(B)(ii), the court must accept all well-pleaded factual allegations within the complaint as true and read the complaint in the light most favorable to the plaintiff. Cf. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam)."2
Plaintiff raises several objections to the Magistrate Judge's findings and recommendations. The Court discusses those objections in the most logical order.
First, Plaintiff objects to the Magistrate Judge's finding that there are inconsistencies in his Application to Proceed in Forma Pauperis and Affidavit of Indigency. (Doc. 11, pp. 21-23). In his report, the Magistrate Judge opined that "Plaintiff lists unrealistic monthly living expenses," lists no monthly payments on debt despitestating approximately $110,000 in student loan and credit card obligations, and identifies himself as homeless despite providing an Arizona mailing address. (Doc. 10, pp. 4-5). However, the Magistrate Judge never determined that Plaintiff does not qualify to proceed in forma pauperis and made no recommendation on the merits of Plaintiff's application. Review of Plaintiff's application is therefore left for the undersigned.
The Court begins by taking judicial notice of the Applications to Proceed in Forma Pauperis and Affidavits of Indigency Plaintiff has filed in his six other cases, identified earlier in footnote 1 of this Order. See Fed. R. Evid. 201. While some of these filings are more detailed than others, Plaintiff is more or less consistent in describing his financial situation. Plaintiff pursues a lifestyle called "nomadic freeganism," which he describes as akin to voluntary homelessness. Plaintiff sleeps in a van, eats food which has been discarded or donated to him by others, and generally rejects the comforts of what can be thought of as modern-day consumerism. Plaintiff is unemployed and states that his last date of employment was in 2009. Plaintiff holds $1,331 in bank accounts and cash, owns miscellaneous personal property worth $125, and values the...
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