Monacelli v Cracker Barrel et al.

Filing 11

OPINION AND ORDER adopting and incorporating findings in 9 Report and Recommendation; denying 2 Affidavit of Indigency. The Clerk shall enter judgment dismissing the case without prejudice for failure to state a claim, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 4/13/2009. (RKM)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. CRACKER BARREL; GENERAL MANAGER JOE HOLDER, Defendant. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #9), filed March 20, 2009, recommending that plaintiff's Affidavit of Indigency (Doc. #2), construed as a motion to proceed in forma pauperis, be denied and the case be dismissed. Plaintiff filed Objections (doc. #10) on March 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. § Case No. 2:09-cv-12-FtM-29SPC

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, the Court notes that plaintiff was provided an opportunity to amend the complaint to properly state a claim. (Doc. #4.) Plaintiff did not

amend the complaint and a Report and Recommendation was issued to deny in forma pauperis status for failure to state a claim. Upon

review, the Court accepts the Report and Recommendation of the magistrate judge and overrules the objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation is hereby adopted and the

findings incorporated herein. 2. Plaintiff's Affidavit of Indigency (Doc. #2), construed as a motion to proceed in forma pauperis, is DENIED.

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3. The Clerk shall enter judgment dismissing the case without prejudice for failure to state a claim, terminate all deadlines, and close the file. DONE AND ORDERED at Fort Myers, Florida, this April, 2009. 13th day of

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

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