Monacelli v. Lee County Education Association et al

Filing 12

OPINION AND ORDER adopting and incorporating 10 Report and Recommendations; overruling objections; denying 2 Affidavit of Indigency; dismissing case without prejudice. The Clerk shall enter judgment accordingly, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 2/3/2010. (RKR)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. Case No. 2:08-cv-921-FtM-29SPC

LEE COUNTY EDUCATION ASSOCIATION; LEE COUNTY SCHOOL BOARD; ROBERT CHILMONIK, District 1 School Board Member; GULF MIDDLE SCHOOL; BILL LANE, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #10), filed January 19, 2010, recommending that the Affidavit of Indigency (Doc. #2), construed as a Motion to Proceed In Forma Pauperis, be denied and the case be dismissed. Plaintiff filed Written

Objections (Doc. #11) on January 27, 2010. 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 Objection, of the the Report and Recommendation the Report and and

plaintiff's

Court

accepts

Recommendation of the magistrate judge.

The Amended Complaint is

due to be dismissed without prejudice. The Objection is overruled. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #10) is hereby adopted and the findings incorporated herein. The objections are otherwise overruled.

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2. Plaintiff's Affidavit of Indigency (Doc. #2), construed as a Motion to Proceed In Forma Pauperis, is DENIED and the case is dismissed without prejudice. 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, 2010. 3rd day of

Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties

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