Miller v. City of Atlantic Beach

Filing 11

ORDER adopting 10 Report and Recommendation. Plaintiff's Amended Complaint is dismissed with prejudice, and the Clerk of the Court is directed to close the file. The Court certifies that any appeal from this Order is not taken in good faith. Signed by Judge Marcia Morales Howard on 11/30/2015. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GARY ROBERT MILLER,
Plaintiff,
v.

Case No. 3:15-cv-209-J-34PDB

CITY OF ATLANTIC BEACH,
Defendant.
______________________________________

ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Dkt. No. 10;
Report), entered by the Honorable Patricia D. Barksdale, United States Magistrate Judge,
on November 4, 2015. In the Report, Magistrate Judge Barksdale recommends that
Plaintiff’s Amended Complaint (Dkt. No. 5) be dismissed with prejudice, that the Court certify
that any appeal from the order is not taken in good faith, and that the Clerk of the Court be
directed to close the file. See Report at 9-10. Plaintiff has failed to file objections to the
Report, and the time for doing so has now passed.
The Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific
objections to findings of fact are filed, the district court is not required to conduct a de novo
review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also 28 U.S.C. § 636(b)(1). However, the district court must review legal conclusions de
novo. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United

States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615 at *1 (M.D. Fla. May 14,
2007).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will accept and adopt the legal and factual conclusions
recommended by the Magistrate Judge. Accordingly, it is hereby
ORDERED:
1.

The Magistrate Judge’s Report and Recommendation (Dkt. No. 10) is

ADOPTED as the opinion of the Court.
2.

Plaintiff’s Amended Complaint (Dkt. No. 5) is DISMISSED with prejudice.

3.

The Court certifies under 28 U.S.C. § 1915(a)(3) and Fed. R. App. P.

24(a)(3)(A) that any appeal from this Order is not taken in good faith given the clear
application of established § 1983 law concerning municipalities and the complete absence
of allegations that would make the City of Atlantic Beach liable, and given the clear
application of established law concerning dismissal with prejudice, the previous opportunity
to amend, and the complete absence of any indication that a more carefully drafted
complaint would state a claim against the City of Atlantic Beach.

4.

The Clerk of the Court is directed to terminate all pending motions and

deadlines as moot and close the file.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of November, 2015.

ja
Copies to:
The Honorable Patricia D. Barksdale
United States Magistrate Judge
Counsel of Record
Pro Se Party