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)

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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: - 3 - 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

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