McKnight v. State of Florida et al

Filing 18

ORDER overruling 14 Plaintiff's Objections; denying 15] Plaintiff's Motion for Leave to Amend Complaint; adopting 13 Report and Recommendation; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency filed by Avery McKnight. This case is dismissed without prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 3/28/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
AVERY MCKNIGHT,
Plaintiff,
-vs-

Case No. 3:16-cv-990-J-34JBT

STATE OF FLORIDA, et al.,
Defendants.
______________________________________

ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Dkt. No. 13;
Report), entered by the Honorable Joel B. Toomey, United States Magistrate Judge, on
November 16, 2016. In the Report, Judge Toomey recommends that Plaintiff’s Affidavit of
Indigency, which the Court construes as a Motion for Leave to Proceed In Forma Pauperis
(Dkt. No. 2; Motion), be denied, and that this case be dismissed without prejudice. See
Report at 1, 7. On December 2, 2016, Plaintiff filed his Objections to the Report and
Recommendation (Dkt. No. 14; Objections), as well as a Motion for Leave to Amend
Complaint (Dkt. No. 15; Motion to Amend). Thus, this matter is ripe for review.
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).
Plaintiff initiated this action on August 3, 2016, with the filing of his Complaint (Dkt.
No. 1) and Motion. On September 6, 2016, Judge Toomey entered an Order taking the
Motion under advisement and directing Plaintiff to file an Amended Complaint consistent
with his Order no later than October 6, 2016. See Order (Dkt. No. 6). On October 11, 2016,
Plaintiff requested an extension of time, see Motion for Extension of Time (Dkt. No. 7), and
on October 13, 2016, the Court granted his request giving him up to and including November
14, 2016, to file an Amended Complaint, see Endorsed Order (Dkt. No. 8). Plaintiff filed his
Amended Complaint (Dkt. No. 9) on October 20, 2016, despite the extension of time until
November 14, 2016. Plaintiff now seeks leave to amend his complaint again asserting that
he had already mailed his Amended Complaint prior to receiving the Order extending the
time to file it, and stating that he attempted to amend it properly but additional time would
have been helpful. See Objections at 4; Motion to Amend at 1. However, rather than
seeking some sort of relief from the Court sooner, Plaintiff waited until after the entry of the
Report on November 16, 2016, to file his Motion to Amend along with the Objections. In
addition, Plaintiff has failed to satisfy the requirement that “[a] motion for leave to amend
should either set forth the substance of the proposed amendment or attach a copy of the
proposed amendment.” Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); see also
McGinley v. Fla. Dep’t of Highway Safety and Motor Vehicles, 438 F. App’x 754, 757 (11th
Cir. 2011) (affirming denial of leave to amend where plaintiff did not set forth the substance
of the proposed amendment); United States ex. rel. Atkins v. McInteer, 470 F. 3d 1350,

1361-62 (11th Cir. 2006) (same).
Upon independent review of the file and for the reasons stated in the Magistrate
Judge’s Report, the Court will overrule the Objections, deny the Motion to Amend, and
accept and adopt the legal and factual conclusions recommended by the Magistrate Judge.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s Objections to the Report and Recommendation (Dkt. No. 14) are

OVERRULED.
2.

Plaintiff’s Motion for Leave to Amend Complaint (Dkt. No. 15) is DENIED.

3.

The Magistrate Judge’s Report and Recommendation (Dkt. No. 13) is

ADOPTED as the opinion of the Court.
4.

Plaintiff’s Affidavit of Indigency, which the Court construes as a Motion for

Leave to Proceed In Forma Pauperis (Dkt. No. 2), is DENIED.
5.

This case is DISMISSED without prejudice.

6.

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 28th day of March, 2017.

ja
Copies to:
Counsel of Record
Pro Se Party