Monacelli v. Lee County Education Association et al

Filing 12

OPINION AND ORDER adopting and incorporating the findings in 10 Report and Recommendation; overruling objections; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. The case is dismissed without prejudice pursuant to 28 U.S.C. § 1915. The Clerk shall enter judgment accordingly, terminate all deadlines and motions as moot, and close the file. Signed by Judge John E. Steele on 2/3/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. Case No. 2:08-cv-913-FtM-29DNF LEE COUNTY EDUCATION ASSOCIATION, LEE COUNTY SCHOOL BOARD, STEVE TEUBER District 4 School Board Member, ISLAND COAST HIGH SCHOOL, G. PETER BOHATCH, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #10), filed January 13, 2009, recommending that the Motion to Proceed In Forma Pauperis/Affidavit of Indigency (Doc. #2) be denied and the case be dismissed for failure to state a claim. Plaintiff filed Written Objections (Doc. #11) on January 20, 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 Report and Recommendation, and plaintiff's Written Objections, the Court accepts the Report and Recommendation of the magistrate judge and will overrule the objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #10) is hereby adopted and the findings incorporated herein. overruled. The objections thereto are -2- 2. Plaintiff's Motion to Proceed In Forma Pauperis/Affidavit of Indigency (Doc. #2) is DENIED and the case is dismissed without prejudice pursuant to 28 U.S.C. 1915. 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 February, 2009. 3rd day of Copies: Hon. Douglas N. Frazier United States Magistrate Judge Plaintiff -3-

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