Bellamy v. Palack et al

Filing 24

OPINION AND ORDER adopting and incorporating 21 Report and Recommendations; granting in part and denying in part 13 Motion for leave to proceed in forma pauperis/affidavit of indigency. Plaintiff may file a Second Amended Complaint against First Class Management LLC only within 14 days of this Opinion and Order. If no Second Amended Complaint is filed, the Court will close the case without further notice. Signed by Judge John E. Steele on 6/1/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KENNETH BELLAMY,
Plaintiff,
v.

Case No: 2:15-cv-431-FtM-29CM

FIRST CLASS MANAGEMENT LLC
and TARA P. PALUCK, Judge,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #21), filed
April 22, 2016, recommending that the motion be granted in part
and denied in part.

No objections have been filed and the time

to do so has expired. 1
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),

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

In the absence of specific

objections, there is no requirement that a district judge review

1

On April 25, 2016, the same day that a copy of the Report
and Recommendation was mailed to plaintiff, the Court was notified
of a change of address. The mailing was returned as undeliverable
on or about May 5, 2016, and on May 9, 2016, the Report and
Recommendation was resent to plaintiff’s new address.
The
deadline to object from this latest date has now expired.

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

novo, even in the absence of an objection.

See Cooper-Houston v.

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).
On February 17, 2016, the Court issued an Opinion and Order
(Doc.

#19)

adopting

the

portion

of

the

previous

Report

and

Recommendation finding that plaintiff was indeed indigent, but
otherwise rejecting and recommitting for a frivolity review.
this

second

Report

and

Recommendation,

the

Magistrate

In

Judge

recommends that all claims against Judge Paluck be dismissed based
on judicial immunity, that claims pursuant to the Fourteenth
Amendment against First Class be dismissed as frivolous, that
claims under 42 U.S.C. § 1985 and 42 U.S.C. § 2000e-2 be dismissed
in their entirety as frivolous, and that plaintiff be permitted to
proceed against First Class under 42 U.S.C. § 1983, to the extent
that he could allege facts in support.

After conducting an

independent examination of the file, and upon due consideration of
the second Report and Recommendation, the Court accepts the Report
and Recommendation of the magistrate judge.
provided one last opportunity to amend.

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Plaintiff will be

Accordingly, it is now
ORDERED:
1.

The

Report

and

Recommendation

(Doc.

#21)

is

hereby

adopted and the findings incorporated herein.
2.

Plaintiff's Affidavit of Indigency (Doc. #13), construed

as a motion to proceed in forma pauperis, is DENIED in part and
GRANTED in part as set forth above.
3.

Plaintiff may file a Second Amended Complaint against

First Class Management LLC only within FOURTEEN (14) DAYS of this
Opinion and Order.

If no Second Amended Complaint is filed, the

Court will close the case without further notice.
DONE and ORDERED at Fort Myers, Florida, this
June, 2016.

Copies:
Hon. Carol Mirando
United States Magistrate Judge
Counsel of Record
Unrepresented parties

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1st

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