Diaz Nieves v. Irizarry et al

Filing 8

ORDER CONFIRMING and ADOPTING 7 the Report and Recommendation issued by Judge Spaulding; DENYING 6 Plaintiff's Motion to Proceed in Forma Pauperis; and DISMISSING Plaintiff's Amended Complaint. Signed by Judge Mary S. Scriven on 11/1/2011. (ABG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

RAFAEL ANGEL DIAZ NIEVES,
Plaintiff,
v.

Case No.: 6:11-cv-1471-Orl-35KRS

EDNA IRIZARRY, TRACIE PHILLIPSMORGAN, FOYE BUCHANNON
WALKER, et al.,
Defendants.
_________________________________/

ORDER

THIS CAUSE comes before the Court for consideration of Plaintiff’s Motions to
Proceed in Forma Pauperis (Dkt. 2; Dkt. 6). United States Magistrate Judge Karla R.
Spaulding issued a Report and Recommendation (Dkt. 4) on September 9, 2011,
recommending that the first Motion be denied and that the complaint be dismissed.
Plaintiff filed an Amended Complaint (Dkt. 5) on September 19, 2011, and a second
Motion to Proceed in Forma Pauperis (Dkt. 6) on September 21, 2011. Judge Spaulding
issued a second Report and Recommendation (Dkt. 7), again recommending that the
renewed Motion be denied and that the complaint be dismissed. Neither party has filed
an objection to the Report and Recommendation, and the deadline to do so has expired.
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); Williams v. Wainwright, 681 F.2d
732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).

A district judge “shall

make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b) (1) (C).
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., 896 F.2d
507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong. § 2 (1976)). In the absence of
specific objections, there is no requirement that a district judge review factual findings de
novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may
accept, reject, or modify, in whole or in part, the findings and recommendations. 28
U.S.C. § 636(b) (1) (C). The district judge reviews legal conclusions de novo, even in the
absence of an objection. See Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th
Cir. 1994).
Upon consideration, in conjunction with an independent examination of the file,
the Court ORDERS that:
1.

In light of the Amended Complaint, Plaintiff’s first Motion to Proceed in
Forma Pauperis (Dkt. 2) is DENIED as moot, and the Clerk is directed to
terminate the Report and Recommendation issued thereon (Dkt. 4);

2.

The Second Report and Recommendation (Dkt. 7) is CONFIRMED and
ADOPTED as part of this Order;

3.

Plaintiff’s second Motion to Proceed in Forma Pauperis (Dkt. 6) is DENIED;

4.

The Amended Complaint (Dkt. 5) is DISMISSED without prejudice.

5.

Plaintiff shall have fourteen (14) days within which to file a second

amended complaint that cures the deficiencies identified in the Second
Report and Recommendation. Failure to do so will result in dismissal of
this action with prejudice without further notice.

DONE and ORDERED in Orlando, Florida, this 1st day of November 2011.

Copies furnished to:
Counsel of Record
Unrepresented Parties