P. Bradley Murray UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

This action is before the Court on Plaintiff's amended pro se complaint (Doc. 5) and his motion to proceed without prepayment of fees and costs (Doc. 2), as amended (Doc. 4). This matter has been referred to the undersigned for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S). Upon consideration of all relevant pleadings filed in this case, it is recommended that this Court DENY Plaintiff's motion to proceed without prepayment of fees (Doc. 2), as amended (Doc. 4), and it is further recommended that this action be DISMISSED WITHOUT PREJUDICE, prior to service of process, both because Plaintiff has failed to establish that this Court can exercise federal question jurisdiction in this matter and because he has failed to state a claim upon which relief can be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii) (recognizing that a complaint may be dismissed for failure to state a claim upon which relief may be granted). I. PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES (see Doc. 2) , AS AMENDED (Doc. 4) .

On April 3, 2019, the undersigned ordered Plaintiff to complete and return this Court's form motion to proceed without prepayment of fees and costs. (Doc. 3, at 1). Johnson's initial motion (Doc. 2) was not on this Court's form (Doc. 3, at 1) and, in addition, as parenthetically noted by the undersigned, Plaintiff simply stated in "a one-paragraph note to the Clerk of Court that he is 'a poor person with no income as of to date.' (Doc. 2.)" (Doc. 3, at 1 n.1). And while Johnson completed all sections of this Court's IFP form (see Doc. 4), he has given this Court only slightly more information than that contained in his note to the Clerk of Court filed March 29, 2019 (Doc. 2). In both motions, Johnson gives his address (3345 Fish Avenue, Apt. 1, Bronx, New York 10469), a brief statement of his action, and that he is a poor person with no income. (Compare Doc. 2 with Doc. 4, at 1 & 3). The only "real" additional information Johnson has presented in his amended IFP motion is that he is a single individual with no dependents and the last date he was employed was in October 2012, when he received $150.00 monthly. (Doc. 4, at 1-2). Otherwise, Johnson's IFP is remarkable for a lack of information because although he has identified that he lives in an apartment in Bronx, New York (id. at 1), he states that he makes absolutely no monthly rental payments on the apartment (id. at 3), he has no assets or property (id. at 2-3), and he has no financial debts or obligations (id. at 3). And yet, despite indicating that he has absolutely no assets or income, Johnson eschewed answering how he provided for his basic living needs of shelter, food, and clothing; instead, he simply wrote the following: "I am a poor person with no income and due to above-said legal issues I am unable to provide for myself. . . . I am in dire need of above-said total punitive damages relief due to my 14^th Amendment rights being violated." (Id. at 3.)

The authority for granting a plaintiff permission to proceed without prepayment of fees and costs is found at 28 U.S.C. § 1915:

(a)(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.

"The in forma pauperis statute, 28 U.S.C. § 1915, ensures that indigent persons will have equal access to the judicial system." Attwood v. Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997), citing Coppedge v. United States, 369 U.S. 438, 446, 82 S.Ct. 917, 921-922, 8 L.Ed.2d 21 (1962). The opportunity to proceed as an indigent in civil cases, created by statute, is not considered a right but a privilege, Rivera v. Allin, 144 F.3d 719, 724 (11th Cir.), cert. dismissed, 524 U.S. 978, 119 S.Ct. 27, 147 L.Ed.2d 787 (1998), and "should not be a broad highway into the federal courts[,]" Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Thus, "a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S.C.A. § 1915, [but] must not act arbitrarily and it may not deny the application on erroneous grounds." Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir. 1983), citing Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975); see also Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 & 1306-1307 (11th Cir. 2004) ("[A] trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915. . . . However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds.").

"In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious." Boubonis v. Chater, 957 F.Supp. 1071, 1072 (E.D. Wis. 1997), citing 28 U.S.C. § 1915(a) & (e)(2)(B)(i). "While one need not be absolutely destitute to qualify for in forma pauperis status, such benefit is allowed only when a movant cannot give such costs and remain able to provide for herself and her dependents." Mitchell v. Champs Sports, 42 F.Supp.2d 642, 648 (E.D. Tex. 1998) (citations omitted). "The question under 28 U.S.C. § 1915 is whether the litigant is 'unable to pay' the costs, and the answer has consistently depended in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend." Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md. 1978); see Fridman v. City of New York, 195 F.Supp.2d 534, 537 (S.D.N.Y. 2002) ("In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or 'can get' from those who ordinarily provide the applicant with the 'necessities of life,' such as 'from a spouse, parent, adult sibling or other next friend.' . . . If it appears that an applicant's 'access to [] court has not been blocked by his financial condition; rather [that] he is "merely in the position of having to weigh the financial constraints imposed if he pursues [his position] against the merits of his case,"' then a court properly exercises its discretion to deny the application."). In Martinez, supra, the Eleventh Circuit determined that affidavit statements satisfying the requirement of poverty should be accepted by the trial court "absent a serious misrepresentation, and need not show that the litigant is 'absolutely destitute' to qualify for indigent status under § 1915." 364 F.3d at 1307 (citation omitted); see also id. ("Such an affidavit will be held sufficient if it represents that the litigant, because of his poverty, is unable to pay for the court fees and costs, and to support and provide necessities for himself and his dependents.").

Upon a review of the Plaintiff's IFP motion (Doc. 2), as amended on April 12, 2019 (Doc. 4), the undersigned RECOMMENDS that the Court exercise its broad discretion to DENY this motion due to Plaintiff's failure to provide this Court with critical requested information regarding how he provides for his basic living needs in light of his specific representation to this Court that he has absolutely no assets or income (see Doc. 4, at 3). In other words, Plaintiff has not explained how he lives in an apartment at 3345 Fish Avenue, Bronx, New York (id. at 1), see https://www.realtor.com/realestateandhomes- detail/3345-Fish-Ave (reflecting that the property is a multi-family home built in 1930 with an estimated value of $627,300) (last visited, April 29, 2019, at 2:07 p.m.), yet makes no monthly rental payment on that apartment (Doc. 4, at 3). Moreover, the motion does not make clear how a single male can live in such an apartment rent-free and also provide for his food, clothing, and other living necessities, much less pay the utilities on the apartment, when he has had no employment for more than six years, has no assets or property, yet also (curiously) no financial debts or obligations. (See id. at 1-3.) The only logical explanation for how Plaintiff provides for his basic living needs (that is, shelter, food, clothing, etc.) is that he lives with a family member (or members) or other next friend who provide for those basic needs. However, because Plaintiff has not provided this critical information, though it was requested of him (see id. at 3 ("If you have indicated that you have minimal or no assets or income, please explain how you provide for your basic living needs such as food, clothing, and shelter. (e.g. food stamps, family assistance or charitable contributions.)")), this Court has no ability to determine whether Plaintiff lives with a family member(s) or other next friend who is able to pay the filing fee and other related costs without being deprived of the basic necessities of life. See Martinez, supra, 364 F.3d at 1307; compare id. with, e.g., Williams, supra, 455 F.Supp. at 209 (under § 1915, the answer to whether a litigant is unable to pay depends "in part on [the] litigant's actual ability to get funds from a spouse, a parent, an adult sibling, or other next friend" (emphasis added)) and Fridman, supra, 195 F.Supp.2d at 537 ("In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or 'can get' from those who ordinarily provide the applicant with the 'necessities of life,' such as 'from a spouse, parent, adult sibling or other next friend.'" (emphasis added)). Accordingly, given Johnson's calculated decision to not provide this Court with the just-mentioned critical information, the undersigned RECOMMENDS that the Court DENY Plaintiff's IFP motion (Doc. 2), as amended (Doc. 4). II. PLAINTIFF'S AMENDED COMPLAINT (Doc. 5).

By previous order entered on April 3, 2019, the undersigned also identified various deficiencies in Plaintiff's original complaint that he needed to remedy in an amended complaint. (Doc. 3, at 1-4; compare id. with 1 (complaint)). In particular, the undersigned explained to Plaintiff that though his complaint, filed March 29, 2019, contained a statement of the grounds for the Court's jurisdiction (Doc. 1, at 2-4), it was unclear whether Plaintiff was asserting "both diversity jurisdiction, in accordance with 28 U.S.C. § 1332, and federal question jurisdiction under 28 U.S.C. § 1331 or just federal question jurisdiction[.]" (Doc. 3, at 2 (footnote omitted)). The undersigned went on to explain the three different types of subject-matter jurisdiction that a federal district court may exercise (Doc. 3, at 2 n.3), that Johnson bore the burden of proving the existence of federal jurisdiction (id. at 2), and, more specifically, that he was required to "'affirmatively allege facts demonstrating the existence of jurisdiction.'" (Id., n.3, quoting Cornelius v. U.S. Bank Nat'l Ass'n, 452 Fed.Appx. 863, 865 (11th Cir. Nov. 29, 2011), in turn quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). In addition, the April 3, 2019 Order further explained to Johnson that his original complaint did not contained a short and plain statement of the claim showing he was entitled to relief, as required by Fed.R.Civ.P. 8(a)(2), as the Court was unsure "of the exact nature of the claim or claims Mr. Johnson seeks to assert against Victoria Fire & Casualty Company and Nationwide Insurance, given that it appears that neither of these companies insured the purported tortfeasor (Maureen Fabre) or exercised any control over her." (Doc. 3, at 3.) As a result, Johnson was instructed to "identify all relevant facts in support of his claim or claims in separately-numbered paragraphs and also specifically (and separately) identify the claim or claims asserted against Victoria Fire & Casualty Company, as well as Nationwide Insurance, and his right to exercise each identified claim (and his right to recovery as to each claim) based on the relevant facts." (Id. at 4 (footnotes omitted)). Parenthetically, Johnson was specifically instructed to inform the Court which driver (the alleged tortfeasor, Maureen Fabre, or the driver of the vehicle in which he was a passenger, that is, Demetrius Moore) was insured by Victoria Fire & Casualty Company and Nationwide; make clear that Maureen Fabre was the individual who had a suspended driver's license; and make clear whether he was seeking to make a claim against Demetrius Moore's uninsured (underinsured, or other) policy provisions. (See id. at 3 & 4 ns. 4 & 8.)

Plaintiff's amended complaint filed April 26, 2019 (Doc. 5), the operative pleading in this case (see Doc. 3, at 4-5), contains the following jurisdictional statement, which is set forth at the end of the amended complaint in conjunction with his request for relief: "Relief sought by Plaintiff is Punitive Damages in the amount of $100 million dollars, in total for above-said action, under 28 U.S.C. § 1331 Federal Question." (Doc. 5, at 6.) Plaintiff claims in his amended complaint that the Defendants violated his due process rights and negligently investigated his claim without conducting a hearing. (See Doc. 5, at 2-6.)

A. Subject-Matter Jurisdiction in General.

It need be initially noted that district courts are "courts of limited jurisdiction" that are "empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution." University of South Alabama v. American Tobacco Co., supra, 168 F.3d at 409 (citation and quotations omitted); see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]" (internal citations omitted)). Stated differently, because federal courts are courts of limited jurisdiction "[i]t is . . . presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]" Kokkonen, supra, 511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted). And, indeed, even though it is clear that "[p]leadings filed by pro se litigants are given liberal construction," these litigants are "'required [] to conform to procedural rules[,]'" Cornelius v. U.S. Bank Nat'l Ass'n, 452 Fed.Appx. 863, 865 (11th Cir. Nov. 29, 2011), quoting Moton v. Cowart, 631 F.3d 1337, 1341 n.2 (11th Cir. 2011), and, as a consequence, "must 'affirmatively allege facts demonstrating the existence of jurisdiction.'" Id., quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (other citation omitted); see also Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) ("The burden for establishing federal subject matter jurisdiction rests with the party bringing the claim.").

There are three different types of subject matter jurisdiction a federal district court may exercise: "(1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)." Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Here, after specifically being advised of the three different types of subject-matter jurisdiction, Plaintiff specifically avers in his amended complaint that he only invokes federal question jurisdiction, in accordance with 28 U.S.C. § 1331 (Doc. 5, at 6).

B. Federal Question Jurisdiction.

Pursuant to 28 U.S.C. § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Id. "Whether a claim arises under federal law for purposes of 28 U.S.C. § 1331 is generally determined by the well-pleaded complaint rule, 'which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.'" Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001), quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). "A well-pleaded complaint presents a federal question where it 'establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" Smith, 236 F.3d at 1292, quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr. For S. Cal., 463 U.S. 1, 27-28, 103 S. Ct. 2840, 2856, 77 L. Ed. 2d 420 (1983); see also Cornelius, supra, 452 Fed.Appx. at 865 (recognizing that under § 1331, "a federal court will have jurisdiction only when the plaintiff's cause of action is conferred by federal law or when there is some 'contested[, substantial] federal issue' and the exercise of jurisdiction is 'consistent with congressional judgment about the sound division of labor between state and federal courts . . . .' Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 313, 125 S.Ct. 2363, 162 l.Ed.2d 257 (2005).")). However, "[e]ven a claim that arises under the Constitution, laws, or treaties of the United States may be dismissed for lack of subject-matter jurisdiction if (1) 'the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction,' or (2) 'such a claim is wholly insubstantial and frivolous.'" Butler v. Morgan, 562 Fed.Appx. 832, 834 (11th Cir. Apr. 3, 2014), quoting Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998). "A claim is 'wholly insubstantial and frivolous' so as to warrant dismissal for lack of subject matter jurisdiction only 'if the claim has no plausible foundation, or if the court concludes that a prior Supreme Court decision clearly forecloses the claim.'" Id., quoting Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d at 1352.

There can be little question but that the provision for federal-question jurisdiction set forth in § 1331 "is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U.S.C. § 1983)." Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 312, 125 S.Ct. 2363, 2366 (2005). Here, Johnson broadly claims that the Defendants violated his due process rights during their investigation of his insurance claim arising from a vehicle collision that occurred in Buffalo, New York on January 28, 2017 (compare Doc. 5, at 2-5 with Doc. 1, Police Accident Report), and, as well, negligently performed that investigation in absence of a fair hearing (Doc. 5, at 5-6). It is clear that "[t]he fifth amendment to the United States Constitution restrains the federal government, and the fourteenth amendment, section 1, restrains the states, from depriving any person of life, liberty, or property without due process of law." Buxton v. City of Plant City, Florida, 871 F.2d 1037, 1041 (11th Cir. 1989). As the Fifth Amendment applies only to the actions of the federal government and federal actors, compare Hallett v. Ohio, 711 Fed.Appx. 949, 950-51 (11th Cir. Oct. 10, 2017) (recognizing that, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), federal officials may be sued in their individual capacities for violations of an individual's constitutional rights, and, further, that such actions can be brought directly under the Constitution, "without a statute providing a cause of action") with Barron v. City of Baltimore, 32 U.S. 243, 250-51, 8 L.Ed. 672 (1833) (recognizing that the Fifth Amendment "is intended solely as a limitation on the exercise of power by the government of the United States[.]"), and Plaintiff has not alleged and cannot allege that either named Defendant is a federal actor, subject-matter jurisdiction is lacking, compare Hallett, supra, 711 Fed.Appx. at 951 (affirming the district court's dismissal of pro se Plaintiff's complaint, in part, because although the Plaintiff alleged jurisdiction was proper under Bivens, "he failed to name any federal official as a defendant[]") with Butler, supra, 562 Fed.Appx. at 834 (recognizing that a claim that is "wholly insubstantial or frivolous" or appears "immaterial and made solely for the purposes of obtaining jurisdiction" may be dismissed for lack of subject-matter jurisdiction).

To the extent Plaintiff seeks to assert a due process claim under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, he likewise has failed to properly allege facts sufficient to establish federal subject-matter jurisdiction. "[T]he Fourteenth Amendment, which prohibits the states from denying federal constitutional rights and which guarantees due process, applies to acts of the states[.]" Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982) (citations omitted). Moreover, "§ 1983 creates a private right of action for deprivations of federal rights by persons acting under color of state law." Hallett, supra, 711 Fed.Appx. at 951 (citations omitted). "To prevail on a § 1983 claim, 'a plaintiff must demonstrate both (1) that the defendant deprived h[im] of a right secured under the Constitution or federal law and (2) that such a deprivation occurred under color of state law .'" Id., quoting Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir. 1998) (emphasis and footnote added). Thus, as for any due process claim Plaintiff arguably brings under § 1983 (or simply under the Fourteenth Amendment), since Johnson failed to allege in his amended complaint that the defendant insurance companies acted under color of state law and/or may be considered state actors, this Court cannot exercise subject-matter jurisdiction in this case. This inability to exercise subject-matter jurisdiction is particularly acute in this case, as it was in Hallett, supra, since Johnson failed to substantiate his due process claim "with anything other than conclusory allegations." 711 Fed.Appx. at 951. Stated somewhat differently, Plaintiff's due process claim asserted against two private insurance companies has no plausible foundation (that is, it is wholly insubstantial and frivolous) and appears to have been made solely for the purpose of obtaining jurisdiction; therefore, it should be dismissed for lack of subject-matter jurisdiction. For all of these reasons, therefore, jurisdiction does not exist under 28 U.S.C. § 1331.

C. Plaintiff's Claims.

Finally, even if the Court was to presume the existence of subject-matter jurisdiction with respect to Plaintiff's claims (of due process violations and "constitutional" negligence), this does not end the Court's inquiry under 28 U.S.C. § 1915(e)(2)(B)(ii). Indeed, the very reasons underscoring the undersigned's recommendation that this Court lacks subject-matter jurisdiction serve also to underscore a finding that Johnson has failed to state either a due process claim, see, e.g., Haxton v. State Farm Mut. Auto. Ins. Co. Bd. of Directors., 2014 WL 3586550, *9 (N.D. Fla. July 21, 2014) (dismissing the pro se plaintiff's due process claim and finding no viable claim under either the Fifth or Fourteenth Amendments because Plaintiff had not alleged, and could not allege, that any named defendant was a federal actor or a state actor), or a "constitutional" negligence claim, see, e.g., Freeman v. Florida Dep't of Business & Professional Regulation, 2014 WL 6673559, *3 (M.D. Fla. Nov. 24, 2014) (relying on Paul v. Davis, supra, and finding that the Plaintiff's state law tort claims, including gross negligence, did not "state cognizable constitutional violations under § 1983."). Accordingly, Plaintiff has failed to state any claim upon which relief may be granted and his complaint also is due to be dismissed without prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii).

CONCLUSION

Based upon the foregoing, it is RECOMMENDED that the Court DENY Plaintiff's motion to proceed without prepayment of fees (Doc. 2), as amended (Doc. 4), and it is further recommended that this action be DISMISSED WITHOUT PREJUDICE, prior to service of process, both because Plaintiff has failed to establish that this Court may exercise federal question jurisdiction in this matter and because he has failed to state a claim upon which relief can be granted, 28 U.S.C. § 1915(e)(2)(B)(ii).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 6th day of May, 2019.

s/ P. Bradley Murray

UNITED STATES MAGISTRATE JUDGE