JONES

v.

BANK OF AMERICA

The Magistrate Judge has entered a Report and Recommendation, recommending that the Court dismiss pro se Plaintiff Donald Jones’s complaint (Doc. 1) without prejudice and without leave to amend. (Doc. 8.) Plaintiff filed a “Motion Answer Magistrate Mizell Report and Recommendation,” which the Court construes as a timely objection to the Report and Recommendation. (Doc. 11.) Also pending is Plaintiff’s “Motion for the Court to Disqualify Magistrate Mizell U.S.Code 455(A)(B).” (Doc. 10.) Upon an independent review of the record, the Report and Recommendation, and Plaintiff’s construed objection (Doc. 11), the Court dismisses Plaintiff’s complaint without prejudice and with leave to amend. Additionally, the motion to disqualify the Magistrate Judge is due to be denied.

BACKGROUND

On January³, 2022, Plaintiff filed his pro se complaint against Defendants Bank of America and the State of Florida, asserting that proceedings to foreclose on his mortgage in state court constituted discrimination, fraud, and a civil rights violation. (Doc. 1 at 1–2.) As best the Court can determine, he appears to allege that after a hearing on his motion for relief from the final judgment of foreclosure,

Bank of America “sent a fake order” denying his motion to reschedule trial “using a stamp for the judge signature and date.” (Id. at 1; Doc. 1-1 at 5–8.) Plaintiff concludes that, because the state court’s various orders were not vacated, he was denied a “fair trial.” (Doc. 1 at 1.) Also on January³, 2022, Plaintiff filed an affidavit of indigency, which the Court construes as a motion for leave to proceed in forma pauperis. (Doc. 2.) He subsequently paid the court filing fee and, on March 7, 2022, filed a “Motion to Remove His Motion to Leave to Proceed Forma Pauperis.” (Docs. 5, 7.) The same day, the Magistrate Judge entered a Report and Recommendation, recommending that, notwithstanding the payment of the filing fee, the complaint be dismissed for lack of subject matter jurisdiction. (Doc. 8.) Specifically, the Magistrate Judge determined that there was no basis for either federal question or diversity jurisdiction. (Id. at 3–6.)

Plaintiff then filed several motions: a “Motion to the Court to Put the Delay of This Case Under Scrutiny” (Doc. 9); a “Motion for the Court to Disqualify Magistrate Mizell U.S.Code 455(A)(B)” (Doc. 10); and a “Motion Answer Magistrate Mizell Report and Recommendation,” which the Court construes as a timely objection to the Report and Recommendation (Doc. 11).

DISCUSSION

Upon review, because Plaintiff’s allegations do not clearly establish this Court’s subject matter jurisdiction, dismissal of his complaint without prejudice and with leave to amend is warranted. Further, Plaintiff’s request to disqualify the Magistrate Judge is denied. I. Dismissal without prejudice and with leave to amend is warranted. The Magistrate Judge recommends dismissing the complaint for lack of subject matter jurisdiction, finding that the complaint presents no basis for federal question or diversity jurisdiction. (Doc. 8.)¹ Specifically, as to whether the complaint presented a federal question, the Magistrate Judge determined that, “[e]ven liberally construed, any suggestion of a federal question here is insubstantial and frivolous. See [Foley v. Orange Cnty., 638 F. App’x 941, 945–46 (11th Cir. 2016)].” (Id. at 4.) And as to diversity jurisdiction, the Magistrate Judge observed as follows: [F]or the court to have diversity jurisdiction, the complaint must allege an amount in controversy over $75,000 and complete diversity between adverse parties. 28 U.S.C. §

(Id. at 5.) In his construed objection, Plaintiff contends that “[t]he magistrate stated that it a [sic] deficient pleading is he saying he doesn’t know the constitution or he saying the plaintiff is a pro se and he doesn’t know the constitution. The magistrate state that the case had no subject-matter juisdiction [sic] The federal court under article 111 hear all case under the constitution see [Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908)].” (Doc. 11 at 1.) In his motion to disqualify the Magistrate Judge, Plaintiff also appears to assert that his property is valued at an amount more than $75,000. (Doc. 10 at 1, 3.) Upon review, the Court agrees with the well-reasoned Report and Recommendation that Plaintiff’s claims, as currently pleaded, do not present a basis for subject matter jurisdiction. First, the Magistrate Judge correctly determined that no question arising under federal law appears on the face of the complaint. See 28 U.S.C. § 1331; Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002). Indeed, the complaint identifies no federal statute or constitutional right, and Plaintiff merely requests that this Court “[g]rant the plaintiff a jury trial for civil rights violation, Age discriminate [sic], Frand [sic], Suffering. Pain.” (Doc. 1 at 2.) While he does mention the Fourteenth Amendment in subsequent filings (Docs. 10, 11), the Fourteenth Amendment is not referenced in his complaint. Further, the factual basis underlying any such claim is unclear. As noted, Plaintiff appears to complain that after a hearing on his motion for relief from the final judgment of foreclosure, Bank of America “sent a fake order” denying his motion to reschedule trial “using a stamp for the judge signature and date.” (Id. at 1; Doc. 1-1 at 5–8.) As currently pleaded, these facts do not appear to support a civil rights violation or age discrimination claim, and the claims thus “clearly appear[] to be immaterial and made solely for the purpose of obtaining jurisdiction” or are “wholly insubstantial and frivolous.” Douse v. Metro Storage,

LLC, 770 F. App’x 550, 550 (11th Cir. 2019).2 Turning to diversity jurisdiction, Plaintiff does not expressly object to the Magistrate Judge’s findings in his construed objection. (Doc. 11 at 1.) In other filings, however, Plaintiff appears to take issue with the findings, asserting without elaboration that his property is valued at an amount greater than $75,000. (Doc. 10 at 1.) Even if true, however, Plaintiff does not explain how his allegations satisfy the amount-in-controversy requirement where he seeks relief “for civil rights violation, Age discrimate [sic], Frand [sic], Suffering. Pain.” (Doc. 1 at 2.) Further,

In short, the allegations in the complaint do not establish either federal question or diversity jurisdiction, and Plaintiff’s construed objections are overruled. Because the allegations in this complaint and factual basis of Plaintiff’s claims appear to differ from those raised in Plaintiff’s prior actions, however, the Court will allow Plaintiff one opportunity to amend. Any amended complaint must establish this Court’s subject matter jurisdiction over this action. Failure to do so will result in dismissal of this action without further notice.

II. Plaintiff’s motion to disqualify the Magistrate Judge is denied.

Following the entry of the Report and Recommendation, Plaintiff filed a motion to disqualify the assigned Magistrate Judge. (Doc. 10.) Plaintiff appears to assert that, contrary to the Magistrate Judge’s purported findings, his property is valued at an amount greater than $75,000. (Id. at 1.) He also contends that the Magistrate Judge has a “conflict of interest” based on the Magistrate Judge’s determinations in a prior action. (Id.)³ The motion is due to be denied. First, contrary to the Local Rules, the motion does not include a legal memorandum supporting the request. See M.D. Fla. Local Rule 3.01(a). Indeed, apart from the inclusion of “U.S.Code 455(A)(B)” in the motion’s title, Plaintiff cites no authority whatsoever in support of his request. (Doc. 10 at 1.) This is insufficient and, by itself, a basis for denial. Second, Plaintiff presents no valid basis for recusal. Under 28 U.S.C. § 455, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The test under § 455(a) is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” Johnson v. Wilbur, 375 F. App’x 960, 965 (11th Cir. 2010) (quotation omitted). Notably, “a motion for recusal may not ordinarily be predicated upon the judge’s rulings in the same or a related case.” Jaffe v. Grant, 793 F. 2d 1182, 1189 (11th Cir. 1986) (quotation omitted). In short, any disagreement Plaintiff may have with the Magistrate Judge’s determinations in this or any other case, standing

Plaintiff is permitted one final opportunity to amend his complaint consistent with this Order and the Report and Recommendation.

CONCLUSION

After an independent review of the record, it is ORDERED: 1. The Report and Recommendation (Doc. 8) is ADOPTED with modifications. 2. Plaintiff’s complaint (Doc. 1) is DISMISSED without prejudice and

with leave to amend. Plaintiff may file an amended complaint on or before July 18, 2022. If he fails to timely file an amended complaint or correct the deficiencies noted in this Order and the Report and Recommendation, the Court will dismiss this action without further notice. 3. Plaintiff’s Motion to Remove His Motion to Leave to Proceed Forma

Pauperis (Doc. 7) is GRANTED to the extent that his construed motion for leave to proceed in forma pauperis (Doc. 2) is DENIED as moot. 4. Plaintiff’s Motion to the Court to Put the Delay of This Case Under Scrutiny (Doc. 9) is DENIED as moot. 5. Plaintiff’s Motion for the Court to Disqualify Magistrate Mizell U.S.Code 455(A)(B) (Doc. 10) is DENIED.

6. Plaintiffs Motion Answer Magistrate Mizell Report and

Recommendation (Doc. 11), construed as an objection to the Report and Recommendation, is DENIED. ORDERED in Fort Myers, Florida, on June 30, 2022.

A ke | at flue,

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE