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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

RICHARD BURTON, JR.,

Plaintiff,

vs. CASE NO. 5:09CV274-RH/AK

PSYCHIATRIST RODRIQUEZ, et al,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff brings this cause of action against three psychiatrists, two of whom are at

Apalachee Correctional Institution and one at Zephyrhills CI, and asserts claims of

“rape, cruel and unusual punishment, involuntary servitude, due process, negligence,

culpable, mental anguish, stress and oppression.” (Doc. 11). He alludes to hexes by

witches, the “spirits and flesh of females,” and that President Obama and Chief Justice

Roberts have his DNA samples “out of my saliva from women and particles.” He has

also filed a motion requesting that the Court release him from custody with a guardian,

which includes an affidavit from him declaring that he is plagued by spirits similar to

those who plagued the “little boy” in the movie, “The Exorcist.” (Doc. 10). 

The Supreme Court in Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 1833,

104 L. Ed. 2d 338 (1989) recognized that a district court could sua sponte dismiss a

case filed in forma pauperis (pursuant 28 U.S.C. § 1915(d)) if it was satisfied that the
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action was frivolous or malicious.1 Neitzke recognized two types of cases which may be

dismissed, sua sponte. In the first class are "claim(s) based on an indisputably

meritless legal theory," and in the second class are "those claims whose factual

contentions are clearly baseless." Id. Within the former are those cases in which it is

either readily apparent that a complaint lacks an arguable basis in law or that

defendants are clearly entitled to immunity from suit. Within the latter are those cases

describing scenarios clearly removed from reality. Cofield v. Alabama Public Service

Comm’n, 936 F.2d 512 (11th Cir. 1991)(a judge conducting a frivolity review under

section 1915 is not required to assume the truth of the allegations and may dismiss

summarily those claims deemed “far-fetched” and “fantastic”).

Not only does Plaintiff fail to explain the constitutional claims at issue in his

factual allegations, he does not explain any relationship between the facts alleged and

the named defendants. The complaint and other papers before the Court are

persuasive that Plaintiff’s claims are not based in reality and that this cause should be

dismissed. 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

amended complaint (doc. 11) be DISMISSED as frivolous under 28 U.S.C. §1915(e). 

IN CHAMBERS at Gainesville, Florida, this 3rd day of December, 2009.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

 1 28 U.S.C. § 1915(d) was redesignated § 1915(e) by the Prison Litigation Reform

Act.

No. 5:09cv274-RH/AK
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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

No. 5:09cv274-RH/AK