Gilliam v. U.S. Department of Veterans Affairs

Filing 11

OPINION AND ORDER denying 3 Motion to appoint counsel; adopting 9 Report and Recommendations; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency and plaintiff shall pay the full filing fee of $400.00 to th e Clerk within 30 days of this Opinion and Order. Plaintiff shall file a Second Amended Complaint within 45 days of this Opinion and order that incorporates all allegations and facts within a single document. Signed by Judge John E. Steele on 12/12/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LEE GILLIAM,
Plaintiff,
v.

Case No: 2:16-cv-255-FtM-99CM

U.S. DEPARTMENT OF VETERANS
AFFAIRS,
Defendant.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #9), filed
November 8, 2016, recommending that plaintiff's Motion to Proceed
In Forma Pauperis and Financial Affidavit (Doc. #2) be denied, the
Motion

for

Appointment

of

Counsel

(Doc.

#3)

be

denied,

plaintiff be directed to file an amended complaint.

and

Plaintiff

filed Response To: Report and Recommendation (Doc. #10) on November
21, 2016, which was construed as an objection but appears to be a
proposed Amended Complaint 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.

1

28 U.S.C. §

The first line is “Amended complaint: The Preliminary Eight
Essentials of This Case in Paragraph Form. With all due respect
the following has been written to be brief and in great plainness
of speech.” (Doc. #10, p. 1.)

636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir.
2010).

A district judge “shall make a de novo determination of

those portions of the report or specified proposed findings or
recommendations
636(b)(1)(C).

to

which

objection

is

made.”

28

U.S.C.

§

See also United States v. Farias-Gonzalez, 556 F.3d

1181, 1184 n.1 (11th Cir. 2009).

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).
The

Magistrate

Judge

found

that

plaintiff

is

currently

employed with cash on hand; that he owns real property with equity;
and

that

he

dependents.

is

not

a

recipient

of

assistance

and

without

Based on these findings, and other facts presented

by plaintiff’s Financial Affidavit, the Magistrate Judge found
that plaintiff did not qualify to proceed without prepayment of
costs.

Plaintiff’s

response

contains

no

objection

to

this

finding, and the Court will accept the recommendation and deny
leave to proceed in forma pauperis.
The Magistrate Judge further found that plaintiff was not
entitled to an appointment of counsel, nor was it warranted under
the circumstances of the case.

The Magistrate Judge further found

that plaintiff has in fact demonstrated an ability to represent
himself, and recommended that an appointment of counsel be denied.

- 2 -

Plaintiff’s response does not contain an objection to this finding,
and the Court agrees with the recommendation to deny the motion.
Plaintiff’s response appears to be an attempt to amend his
Complaint by providing additional factual support pursuant to the
recommendation that plaintiff be required to replead his claims.
However, the proposed amended complaint fails to include, expand
on, or incorporated any of the original allegations.

“An amended

pleading supersedes the former pleading; the original pleading is
abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.”

Dresdner Bank AG,

Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006) (citation omitted).

It is clear that it was

not plaintiff’s intent to supersede the original document in its
entirety.

Therefore, the Court will permit plaintiff to file a

Second Amended Complaint in compliance with the Magistrate Judge’s
recommendation. 2
After a careful and complete review of the findings and
recommendations, as well as the record in this case, the Court
will adopt the Report and Recommendation.

2

For additional resources and assistance, plaintiff may wish
to consult the “Proceeding Without a Lawyer” resources on filing
a pro se complaint that are provided on the Court’s website, at
http://www.flmd.uscourts.gov/pro_se/default.htm. The website has
tips, answers to frequently-asked questions, and sample forms.
There is also a link that may help plaintiff generate the second
amended complaint.

- 3 -

Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #9) is hereby adopted
and the findings incorporated herein.
2. Plaintiff's Motion to Proceed In Forma Pauperis (Doc. #2)
is DENIED and plaintiff shall pay the filing fee in the
amount of $400.00 to the Clerk of Court within THIRTY (30)
DAYS of this Opinion and Order.

The failure to pay the

filing fee will result in dismissal without prejudice of
this case.
3. Plaintiff’s Motion for Appointment of Counsel (Doc. #3) is
DENIED.
4. Plaintiff shall file a “Second Amended Complaint” within
FORTY-FIVE

(45)

DAYS

of

this

Opinion

and

Order

that

incorporates all allegations and facts within a single
document.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.

Copies:
All Parties of Record

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12th

day