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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

NORMAN A MCCRARY,

Plaintiff,

v. CASE NO. 1:10-cv-00134-MP-AK

LISA WHITE SHERRLY, PETER SIGAL,

Defendants.

_____________________________/

O R D E R

This matter is before the Court upon the filing of a First Amended Complaint. (Doc. 10). 

Having considered said claims, the Court is of the opinion that this cause should be

DISMISSED. 

I. Allegations of the Amended Complaint

Plaintiff brings this cause under 42 U.S.C. §1983 alleging that two private attorneys, Lisa

Sherrly and Peter Sigal, who represented fellow prisoner Mark Osterback in a class action suit

concerning the use of chemical agents that presumably included the present Plaintiff. Plaintiff

alleges that these attorneys failed to obtain the relief promised, and Plaintiff continues to have

watery eyes and skin problems. He also complains that he is being segregated unfairly. He does

not specify precisely what relief he seeks.

II. Standard of Review

A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a

claim upon which relief may be granted. 28 U.S.C. § 1915A.

Pro se complaints are to be held to a less stringent standard than those drafted by an
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Case No: 1:10-cv-00134-MP-AK

attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v. Kerner, 404

U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, a plaintiff is still

required to "set forth factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory." Worst v. Hart, 1995

WL 431357, *2 (N.D. Fla. 1995). It cannot be assumed that a Plaintiff will prove facts which

have not been alleged. Quality Foods de Centro America, 711 F.2d at 995, citing Associated

General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519,

103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence, even though the pleading standard for a

pro se complaint is quite liberal, “bald assertions and conclusions of law will not suffice.” Leeds

v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's

complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta Housing

Auth., 998 F.2d 904, 912 (11th Cir. 1993).

The Court is required to dismiss a complaint at any time if it is determined to be

frivolous. 28 U.S.C. §1915(e)(2)(B)(I). Typically, a court should serve the complaint and have

benefit of the defendant’s response before making such a determination, but there are compelling

reasons for immediately dismissing frivolous suits by prisoners since they unduly burden the

courts, obscure meritorious claims, and require innocent parties to expend significant resources

in their defense. Williams v. Secretary for the Department of Corrections, 131 Fed. Appx. 682,

686 (11th Cir. 2005). Dismissal prior to service is also appropriate when the Court determines

from the face of the complaint that the factual allegations are clearly baseless or that the legal

theories are indisputably meritless. Williams, supra; Carroll v. Gross, 984 F.2d 392, 393 (11th

Cir. 1993).

Plaintiff was told by previous Order that his civil rights lawsuit cannot proceed against
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these private attorneys absent some allegation of a connection between them and acts committed

pursuant to some state authority. (Doc. 10). He was also advised that he must identify some

specific constitutional rights which they are alleged to have violated. (Doc. 10). He has not

added any facts nor identified any claims in the first amended complaint and refers to his

previous filings for explanation, even though he was warned that his previous pleadings did not

state a claim for relief and his cause may be dismissed if he did not provide more information.

Accordingly, it is

ORDERED AND ADJUDGED:

That this cause be DISMISSED for failure to state a claim for relief under 28 U.S.C.

§1915(e)(2)(B).

DONE AND ORDERED this 28th day of September, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge