Hernandez v. Echarte et al
| Miriam Hernandez |
| Judge Pedro Echarte, Automobile Insurance Company State Farm Mutual, Harold B. Kite Truppman Esq. P.A. and Harold B. Truppman |
| 1:2024cv20766 |
| February 27, 2024 |
| US District Court for the Southern District of Florida |
| Miami Office |
| Roy K Altman |
| Eduardo I Sanchez |
| P.I.: Other |
| 28 U.S.C. § 1983 Civil Rights |
| None |
Docket Report
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This docket was last retrieved on April 19, 2024. A more recent docket listing may be available from PACER.
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Filing 16
PAPERLESS ORDER denying #15 the Plaintiff's Motion for Reconsideration (the "Motion"), which asks us to reconsider our Order Denying the Second Amended Complaint #14 . The Plaintiff makes two arguments -- both unavailing. First, she argues that Judge Echarte is not judicially immune because he "was no longer a judge assigned to" her state-court case "[a]t the time" of her allegations, "so his actions were no longer immune[.]" Motion at 1-2. In support of this claim, the Plaintiff tells us that she "filed and served Judge Echarte by delivering to his bailiff at his office a motion to recuse the presiding Judge.... That motion remained pending for more than the allotted 60 days without any ruling. Under the applicable Florida law, the motion is deemed granted after 60 days. Accordingly disqualified Judge Echarte is no longer judge in the pending state-court case but insists on continuing on as judge in violation of Plaintiff's entitlement to judicial proceedings with due process." Motion at 1 (emphasis added). As the Plaintiff herself seems to acknowledge, Judge Echarte is still the judge in the state-court proceeding -- despite the "motion to recuse" she claims to have "deliver[ed] to his bailiff." Moreover, an examination of the docket using the case number the Plaintiff provided also reveals that Judge Echarte is still the judge presiding over the case. We, therefore, reject this argument for dismissal. Second, the Plaintiff argues that the other two Defendants (her lawyer and State Farm) "are not immune from liability just because they are private persons" under 1983 since "Truppman and State Farm engaged in litigation practices that violated due process and moved the presiding judge to issue orders that violated due process." Id. at 2-3. She adds: "Those were indeed actionable under section 1983." We likewise reject this argument for reconsideration: As we've explained, "A person acts 'under color of state law' when he acts with power 'possessed by virtue of state law and made possible only because [he] is clothed with the authority of state law.'" King v. King, 342 F. Supp. 3d 1364, 1371 (M.D. Ga. 2018) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). The Eleventh Circuit has made clear that "[u]se of the courts by private parties does not constitute an act under color of state law." Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992); see also Allaben v. Howanitz, 2013 WL 12097629, at *1 (M.D. Fla. Nov. 13, 2013) (Corrigan, J.) ("[O]nly in rare circumstances can a private party be viewed as a state actor for 1983 purposes.... That plaintiff lost his case when the court eventually granted defendants' motion for summary judgment does not make the defendants here co-conspirators with each other or the state court judges."); Harvin v. Aten, 2018 WL 10509901, at *2 (N.D. Ga. Oct. 30, 2018) (Cohen, J.) (noting, in response to a similar argument by a pro se plaintiff, that if courts were to take the plaintiff's "theory of liability to its illogical conclusion, any time any person ever filed a police report, made a criminal complaint against another person, or attempted to protect his or her rights in court, that person would become a state actor." (cleaned up)). Even a "public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). So, the Plaintiff hasn't shown how her lawyer and State Farm acted under color of state law here. This case shall remain CLOSED. Signed by Judge Roy K. Altman on 4/19/2024. (lcr)
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Filing 15
MOTION for Rehearing re #14 Order Dismissing/Closing Case by Miriam Hernandez. (pcs)
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Filing 14
ORDER Dismissing #13 Second Amended Complaint without leave to amend. Signed by Judge Roy K. Altman on 4/4/2024. See attached document for full details. (pcs)
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Filing 13
SECOND AMENDED COMPLAINT against Pedro Echarte, State Farm Mutual Automobile Insurance Company, Harold B. Truppman filed in response to Order Granting Motion for Leave, filed by Miriam Hernandez.(pcs)
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Filing 12
ORDER DENYING SECOND MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS denying #11 Motion for Reconsideration re #11 MOTION for Reconsideration re #5 Order on Motion for Leave to Proceed in forma pauperis filed by Miriam Hernandez. Second Amended Complaint due by 4/4/2024. Signed by Judge Roy K. Altman on 3/19/2024. See attached document for full details. (pcs)
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Filing 11
MOTION for Rehearing of In Forma Pauperis Order re #5 Order on Motion for Leave to Proceed in forma pauperis by Miriam Hernandez. (pcs)
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Filing 10
AMENDED COMPLAINT against Pedro Echarte, Harold B. Kite Truppman Esq. P.A., Automobile Insurance Company State Farm Mutual, Harold B. Truppman filed in response to Order Granting Motion for Leave, filed by Miriam Hernandez.(pcs)
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Filing 9
ORDER REFERRING CERTAIN MATTERS TO MAGISTRATE JUDGE, referring case to Magistrate Judge Eduardo I. Sanchez for Pretrial Non-Dispositive Matters. Magistrate Judge Jacqueline Becerra no longer assigned as presider/referral judge(s) in case. Signed by Judge Roy K. Altman on 3/2/2024. See attached document for full details. (pcs)
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Filing 8
ORDER OF INSTRUCTIONS TO PRO SE LITIGANTS. Signed by Judge Roy K. Altman on 2/28/2024. See attached document for full details. (ls)
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Filing 7
ORDER in Cases with Multiple Defendants. Signed by Judge Roy K. Altman on 2/28/2024. See attached document for full details. (ls)
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Civil Case Terminated per Order DE #5 . Closing Case. (pcs)
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Filing 6
PAPERLESS ORDER denying without prejudice #4 the Plaintiff's Motion for Referral to Volunteer Attorney Program. The Plaintiff must file a legally sufficient motion for leave to proceed in forma pauperis, and her complaint must survive the screening requirements of 28 U.S.C. 1915A before we will allow this case to proceed to service. See Order Denying Motion for Leave to Proceed in Forma Pauperis #5 . Once that happens, the Plaintiff will be entitled (if she wishes) to re-file a motion for referral to this Court's volunteer attorney program. Signed by Judge Roy K. Altman on 2/28/2024. (lcr)
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Filing 5
ORDER denying #3 Motion for Leave to Proceed in Forma Pauperis. Signed by Judge Roy K. Altman on 2/28/2024. See attached document for full details. (lcr)
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Filing 4
MOTION for Referral to Volunteer Attorney Program by Miriam Hernandez. (mee)
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Filing 3
MOTION for Leave to Proceed in forma pauperis by Miriam Hernandez. (mee)
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Filing 2
Clerks Notice of Judge Assignment to Judge Roy K. Altman. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Jacqueline Becerra is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (mee)
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Filing 1
Complaint pursuant to 42 USC 1983 against Pedro Echarte, Harold B. Kite Truppman Esq. P.A., Automobile Insurance Company State Farm Mutual. Filing fee $ 405.00. IFP Filed, filed by Miriam Hernandez. (Attachments: #1 Civil Cover Sheet)(mee)
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