Jones v. Bank of America et al

Filing 16

OPINION AND ORDER granting 10 Motion to Reopen Case to the extent that plaintiff complied with 4 Order; overruling 15 Motion Answering Report and Recommendation construed as an objection; adopting and incorporating 14 Report and Recommen dation; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall enter judgment dismissing the Amended Complaint without prejudice, terminate all pending deadlines as moot, and close the file. Signed by Judge John E. Steele on 12/20/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONALD JONES,
Plaintiff,
v.

Case No: 2:16-cv-597-FtM-29MRM

BANK OF AMERICA and STATE OF
FLORIDA,
Defendants.
OPINION AND ORDER
This matter is before the Court on consideration of the
Magistrate Judge’s Report and Recommendation (Doc. #14), filed
November 30, 2016, recommending that the Motion to Reopen Case
(Doc. #10) be granted, the Affidavit of Indigency (Doc. #2) be
denied, and the Amended Complaint (Doc. #13) dismissed.

Plaintiff

filed a Motion Answering Report and Recommendion [sic] (Doc. #15)
on December 12, 2016, which was construed as an objection.
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.

28 U.S.C. §

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).

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. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R.
1609, 94th Cong., § 2 (1976)).

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).
Plaintiff initiated his Complaint (Doc. #1) on August 1, 2016,
along with a request to proceed in forma pauperis.

Upon review,

the Magistrate Judge conducted a review of the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) and found that the pleading was
deficient both for the failure to clearly articulate federal
jurisdiction and for the failure to state a claim.

Plaintiff was

directed to file an Amended Complaint in compliance with the Order
(Doc. #4).

After the deadline expired, the Magistrate Judge

issued an Order to Show Cause (Doc. #5) directing plaintiff to
show cause and to also file an Amended Complaint.

Once again

finding no compliance, the Magistrate Judge issued a Report and
Recommendation (Doc. #6) recommending dismissal of the case for
failure to prosecute.

Plaintiff did not file an objection, and

on October 21, 2016, the Court issued an Opinion and Order (Doc.
#7) adopting the Report and Recommendation and dismissing the case.
Judgment (Doc. #8) issued on October 25, 2016.

- 2 -

The same day, on October 25, 2016, plaintiff filed a Motion
for the Court to Mail Order to P.O. Box (Doc. #9).

The Magistrate

Judge noted the change of address, directed the Clerk to forward
copies

of

documents

to

plaintiff,

remain[ed] dismissed and closed.”

but

stated

(Doc. #11.)

that

the

“case

On the same day,

plaintiff filed his Motion to Reopen the Case (Doc. #10).
Court

took

compliance

the
with

request
the

under

previous

advisement
requirement

The

pending

plaintiff’s

to

an

file

Amended

Complaint, and pending review for purposes of proceeding in forma
pauperis.

(Doc. #12.)

This time plaintiff complied and filed an

Amended Complaint (Doc. #13), and therefore the Magistrate Judge
recommended granting the request to reopen the case for further
consideration.
The Magistrate Judge reviewed the Amended Complaint pursuant
to 28 U.S.C. § 1915, and found that the allegations remain unclear
and the Amended Complaint suffered from the same deficiencies as
previously

noted.

Plaintiff

Magistrate Judge’s findings.

generally

takes

issue

with

the

After a careful and complete review

of the findings and recommendations, as well as the record in this
case, the Court adopts the Report and Recommendation and will
overrule the objection.
Accordingly, it is now
ORDERED:

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1. Plaintiff's Motion Answering Report and Recommendion [sic]
(Doc. #15), construed as an Objection, is overruled.
2. The Report and Recommendation (Doc. #14) is hereby adopted
and the findings incorporated herein.
3. Plaintiff’s Motion to Reopen the Case (Doc. #10) is GRANTED
to the extent that plaintiff complied with the Magistrate
Judge’s Order (Doc. #4) and filed an Amended Complaint.
4. Plaintiff’s Affidavit of Indigency (Doc. #2), construed as
a motion to proceed in forma pauperis, is DENIED.
5. The Clerk shall enter judgment dismissing the
Complaint

without

prejudice,

terminate

all

Amended
pending

deadlines as moot, and close the file.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.

Copies:
Hon. Mac R. McCoy
All Parties of Record

- 4 -

20th

day