Monacelli v. Heartland Educational Consortium et al

Filing 14

OPINION AND ORDER adopting and incorporating 12 Report and Recommendation; denying 3 Motion to Proceed In Forma Pauperis; overruling objections; dismissing case without prejudice. The Clerk shall enter judgment dismissing the case without prejudice for failure to state a claim, terminate all pending motions and deadlines as moot, and close the file. Signed by Judge John E. Steele on 5/7/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. Case No. 2:08-cv-816-FtM-29SPC

HEARTLAND EDUCATIONAL CONSORTIUM; HENDRY COUNTY EDUCATION ASSOCIATION; HENDRY COUNTY SCHOOL BOARD; LABELLE MIDDLE SCHOOL; GARY WHITE; TERESA BAKER, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #12), filed April 15, 2009, recommending that plaintiff's Motion to Proceed In Forma Pauperis (Doc. #3) be denied and the case be dismissed for failure to state a claim. Plaintiff filed Written Objections (Doc. #13) on April 27, 2009. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 636(b)(1); 28 U.S.C. §

Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), A district judge "shall make portions of the report or

cert. denied, 459 U.S. 1112 (1983). a de novo determination of those

specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). This requires that the

district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State

Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong. § 2 (1976)). Even in the absence of specific

objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 636(b)(1)(C). 28 U.S.C. §

The district judge reviews legal conclusions de See Cooper-Houston v.

novo, even in the absence of an objection.

Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994) (Table). After conducting an independent examination of the file and upon due consideration of the leave granted to amend the complaint, the Amended Complaint (Doc. #11), the Report and Recommendation, and plaintiff's Objections, the Court accepts the Report and Recommendation objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #12) is hereby adopted and the findings incorporated herein. overruled. The objections thereto are of the magistrate judge and overrules the

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2. Plaintiff's Affidavit of Indigency (Doc. #3), construed as a motion to proceed in forma pauperis, is DENIED and the case is dismissed without prejudice for failure to state a claim. 3. The Clerk shall enter judgment accordingly, terminate all

deadlines and motions as moot, and close the file. DONE AND ORDERED at Fort Myers, Florida, this May, 2009. 7th day of

Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Plaintiff

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