Sheikh v. City of Deltona, et al

Filing 11

ORDER adopting 4 Report and Recommendation of the Magistrate Judge. Plaintiff's Motion for Leave to Proceed In Forma Pauperis 2 is DENIED. Plaintiff's Complaint 1 is DISMISSED without prejudice. Plaintiff's Amended Complaint [ 3] is DISMISSED without prejudice. Plaintiff's Second Amended Complaint 7 is accepted as the operative pleading. The Clerk is DIRECTED to docket the "Affidavit of Indigency" 8 as a Renewed Motion for Leave to Proceed In Forma Pau peris. Plaintiff's Notice of Objection to the Report and Recommendation 9 is STRICKEN. Plaintiff's Motion for Progress Status of Case to Proceed as Filed 10 is DENIED as moot. Signed by Judge Charlene Edwards Honeywell on 1/16/2014. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JIMIL MUHAMMED SHEIKH,
Plaintiff,
v.

Case No: 6:13-cv-1526-Orl-36TBS

CITY OF DELTONA, THE DELTONA
CITY COMMISSIONERS, MAYOR OF
THE CITY OF DELTONA, CYRUS
BUTTS, DALE BAKER, MICHAEL F.
MOREA, ENVIRONMENTAL LAND
SERVICES OF FLAGLER COUNTY,
INC., KATHY FIDLER and PATRICK
HOAG,
Defendants.
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate Judge
Thomas B. Smith, filed on October 29, 2013 (Doc. 4). In the Report and Recommendation, the
Magistrate Judge recommends that pro se Plaintiff Jimil Muhammed Sheikh’s (“Plaintiff”) Motion
for Leave to Proceed In Forma Pauperis (“IFP Motion”) (Doc. 2) be denied and Plaintiff’s
Complaint (Doc. 1) and Amended Complaint (Doc. 3) be dismissed without prejudice for failure
to properly state a claim upon which relief can be granted. See Doc. 4. On November 12, 2013,
Plaintiff filed a Notice of Objection to the Report and Recommendation (“Objection”) (Doc. 9).
As such, this matter is ripe for review.
As a preliminary matter, the Court notes that Plaintiff did not sign his Objection. Federal
Rule of Civil Procedure 11(a) requires every document filed with the Court by a pro se litigant to
be signed by that litigant. Fed. R. Civ. P. 11(a). Rule 11(a) directs the Court to strike an unsigned
document unless the omission is promptly corrected after being called to the litigant’s attention.

Id. However, as Plaintiff filed a Second Amended Complaint (Doc. 7) concurrently with the
Objection, there is no need for the Court to allow Plaintiff an opportunity to correct the deficiency
in the Objection. Therefore, the Court will strike the Objection.
After reviewing the Report and Recommendation, the Court is in agreement with the
Magistrate Judge that Plaintiff’s IFP Motion should be denied and that both the Complaint and the
Amended Complaint should be dismissed for failure to properly state a claim upon which relief
can be granted. See 28 U.S.C. § 1915(e)(2) (in proceedings in forma pauperis, the court shall
dismiss the case if, among other things, the case is frivolous or fails to state a claim upon which
relief may be granted). The Court also agrees that Plaintiff should be given an opportunity to file
a Second Amended Complaint. However, Plaintiff has already filed a Second Amended Complaint
(Doc. 7), as well as a renewed Motion for Leave to Proceed In Forma Pauperis (Doc. 8). 1
Accordingly, the Court need not grant Plaintiff leave to file a Second Amended Complaint, as the
Court will accept the Second Amended Complaint as filed. Therefore, after careful consideration
of the Report and Recommendation of the Magistrate Judge, in conjunction with an independent
examination of the court file, the Court is of the opinion that the Magistrate Judge’s Report and
Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is hereby ORDERED and ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 4) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review.

1

Although the renewed Motion for Leave to Proceed In Forma Pauperis is actually entitled
“Affidavit of Indigency,” it requests leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. Therefore, the Court construes this document as a motion and will direct the Clerk to docket
it as such.

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2.

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 2) is DENIED.

3.

Plaintiff’s Complaint (Doc. 1) is DISMISSED without prejudice.

4.

Plaintiff’s Amended Complaint (Doc. 3) is DISMISSED without prejudice.

5.

Plaintiff’s Second Amended Complaint (Doc. 7) is accepted as the operative
pleading.

6.

The Clerk is DIRECTED to docket the “Affidavit of Indigency” (Doc. 8) as a
Renewed Motion for Leave to Proceed In Forma Pauperis.

7.

Plaintiff’s Notice of Objection to the Report and Recommendation (Doc. 9) is
STRICKEN.

8.

Plaintiff’s Motion for Progress Status of Case to Proceed as Filed (Doc. 10) is
DENIED as moot.

DONE and ORDERED in Orlando, Florida on January 16, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Thomas B. Smith

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