Davis v. Collier County Sheriff's Office et al

Filing 10

OPINION AND ORDER denying 4 Motion to consolidate cases; adopting in part and modifying in part 9 Report and Recommendations; taking under advisement 2 Motion for leave to proceed in forma pauperis/affidavit of indigency pending review of an Amended Complaint. The 1 Complaint is dismissed without prejudice to filing an Amended Complaint within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 4/27/2010. (RKR)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION ADRIAN DAVIS, Plaintiff, vs. COLLIER COUNTY SHERIFF'S DEPUTY VENTURA #3247, Case No. OFFICE; 2:10-cv-107-FtM-29SPC

Defendant. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge's Report and Recommendation (Doc. #9), filed April 5, 2010, recommending that the Affidavit of Indigency (Doc. #20), construed as a motion to proceed in forma pauperis, be denied, the Complaint (Doc. #1) be dismissed without prejudice with leave to amend, and plaintiff be permitted 21 days to file the amended complaint. expired. 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. § No objections have been filed and the time to do so has

Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), In the absence of specific

cert. denied, 459 U.S. 1112 (1983).

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. Co., 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 Report and Recommendation, the Court accepts the Report and Recommendation of the magistrate judge to the extent that the Complaint will be dismissed without prejudice to filing an Amended Complaint in compliance with the Report and Recommendation's guidelines (Doc. #9, pp. 7-8). The motion to

proceed in forma pauperis will however be taken under advisement pending the submission of the Amended Complaint. The Court notes that plaintiff has filed a Motion to

Consolidate (Doc. #4). In light of the dismissal of the Complaint, the motion will be denied. Additionally, consolidation would not

be proper. One case has been dismissed, 2:10-cv-143-FTM-29SPC, and the other case is pending before another district judge, 2:10-cv144-FTM-36SPC. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #9) is hereby adopted

in part and modified in part.

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2.

Plaintiff's Affidavit of Indigency (Doc. #20), construed

as a motion to proceed in forma pauperis, is taken under advisement pending review of an "Amended Complaint." 3. The Complaint (Doc. #1) is dismissed without prejudice to

filing an Amended Complaint in compliance with the Report and Recommendation's guidelines (Doc. #9, pp. 7-8) within TWENTY-ONE (21) DAYS of this Opinion and Order. 4. The failure to file an "Amended Complaint" within the time provided will result in the entry of judgment dismissing the case without prejudice and the closure of the case. 5. The Motion to Consolidate (Doc. #4) is DENIED. 27th day of

DONE AND ORDERED at Fort Myers, Florida, this April, 2010.

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

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