Reilly v. U.S. Department of Justice

Filing 6

ORDER re 5 Objection filed by Michael Reilly. Plaintiff Michael Reilly's Objection to Document 4 5 is OVERRULED. Plaintiff shall file an amended complaint complying with the Honorable Mac R. McCoy's Order (Doc. #4) on or before November 29, 2016. If Plaintiff fails to file an amended complaint within this time, the Court will dismiss the instant action without further notice. See M.D. Fla. R. 3.10. Signed by Judge Sheri Polster Chappell on 11/8/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL REILLY, individually
Plaintiff,
v.

Case No: 2:16-cv-774-FtM-99MRM

U.S. DEPARTMENT OF JUSTICE,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff Michael Reilly’s Objection to
Document 4 filed on October 26, 2016. (Doc. #5). Plaintiff, filing pro se, initiated this
action on October 19, 2016. (Doc. #1). Upon review, the magistrate judge ordered
Plaintiff to file an amended complaint that complied with the pleading requirements set
forth in Rules 8 and 10 of the Federal Rules of Civil Procedure. (Doc. #4). Plaintiff objects
to doing so, contending his Complaint meets the pleading requirements. (Doc. #5).
Plaintiff now requests the magistrate judge’s prior Order be “trashed” and another
magistrate assigned to the instant action. (Doc. #5).
“[A] judge may designate a magistrate judge to hear and determine any pretrial
matter before the court,” subject to exceptions not relevant to this case. 28 U.S.C.
§ 636(b)(1)(A). From there, Federal Rule of Civil Procedure 72 governs pretrial matters

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referred to magistrate judges. Under Rule 72(a), a district court reviewing a magistrate
judge’s decision on a non-dispositive issue “must consider timely objections and modify
or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.
Civ. P. 72(a). Clear error is a highly deferential standard of review. See Holton v. City of
Thomasville Sch. Dist., 425 F.3d 1325, 1351-52 (11th Cir. 2005). “A finding is clearly
erroneous ‘when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’”
Id. Further, an order “is contrary to the law when it fails to apply or misapplies relevant
statutes, case law, or rules of procedure.” Malibu Media, LLC v. Doe, 923 F. Supp. 2d
1339, 1347 (M.D. Fla. 2013). Under neither standard does the Court find grounds to
modify or set aside Judge McCoy’s Order.
Plaintiff mistakenly asserts his Complaint meets the standards set forth in Rules 8
and 10 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 & 10. As stated in
Judge McCoy’s Order, the Complaint is deficient in failing to allege more than a
conclusory allegation. See (Doc. #4). For this same reason, Judge McCoy afforded
Plaintiff an opportunity to properly allege his claims in an amended complaint.2 (Doc. #4
at 3). In doing so, the Court finds no error.
Plaintiff further accuses Judge McCoy of bias and perjury. The Court finds these
claims baseless. Plaintiff finds fault in Judge McCoy citing to a well-accepted principle of
law, but citing to case law does not indicate bias. Judge McCoy merely cited to Reilly v.
State of Florida, Case No. 2:15-cv-14-FtM-38MRM, (M.D. Fla. July 14, 2015) to indicate

The Court will direct Plaintiff to the section entitled, “Proceeding without a Lawyer,” located on its website
http://www.flmd.uscourts.gov for additional helpful information instructing how to proceed pro se.
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a prior instance in which the Court cautioned Plaintiff to conform to the relevant pleading
standards.
As an addendum, the Court will remind Plaintiff that the Department of Justice has
not been served in this case, but this is not of Judge McCoy’s own accord. Rather, the
Motion to Proceed in Forma Pauperis will address the matter of service effected upon the
Department of Justice. Consequently, the Court denies to vacate Judge McCoy’s Order
or reinstate another magistrate judge. The Court cautions Plaintiff to refrain from alleging
baseless and frivolous accusations against a member of the judiciary.
Accordingly, it is now
ORDERED:
(1) Plaintiff Michael Reilly’s Objection to Document 4 (Doc. #5) is OVERRULED.
(2) Plaintiff shall file an amended complaint complying with the Honorable Mac R.
McCoy’s Order (Doc. #4) on or before November 29, 2016. If Plaintiff fails to
file an amended complaint within this time, the Court will dismiss the instant
action without further notice. See M.D. Fla. R. 3.10.
DONE and ORDERED in Fort Myers, Florida this 8th day of November, 2016.

Copies: All Parties of Record

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