Porter v. The City of Port Orange et al

Filing 26

ORDER adopting 19 Report and Recommendations.; denying as moot 16 Plaintiff's Motion to Separate Complaint and Affidavit in Support of Complaints; Plaintiff's "Second Complaint" (Doc. 17) is DISMISSED WITHOUT PREJUDICE . The Motion to Separate Complaint (Doc. 22), Third Complaints (Docs. 23, 24), and Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 18) are REFERRED to U.S. Magistrate Judge David A. Baker for a report and recommendation.. Signed by Judge Roy B. Dalton, Jr. on 6/24/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

HOWARD PORTER,
Plaintiff,
v.

Case No. 6:15-cv-1715-Orl-37DAB

THE CITY OF PORT ORANGE; BOB
FORD; DREW BASTION; DENNIS
KENNEDY; ALLEN GREEN; DONALD
BURNETT; WESH 2; BAY NEWS 9; MY
NEWS 13; WKMG TV LOCAL 6;
TRAVELL EILAND; SHAUN
CHAIYBHAT; BLAINE TOLISON; SAUL
SENZ; LACY MCLAUGHLIN; KATIE
KURSTAIN; CHRISTINE HARING;
THOMAS HARING; MARGIE
PATCHETT; JACQUELINE BODNER;
NICOLE SANCHEZ; and JOHN AND
JANE DOE,
Defendants.

ORDER
This cause is before the Court on the following:
1.

Plaintiff’s Motion to Separate Complaint and Affidavit in Support of
Complaints (Doc. 16), filed March 23, 2016;

2.

Plaintiff’s Second Complaint (Doc. 17), filed March 23, 2016;

3.

Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
or Costs (Doc. 18), filed March 23, 2016;

4.

U.S. Magistrate David A. Baker’s Report and Recommendation (Doc. 19),
filed May 12, 2016;

5.

Plaintiff’s Written Objections to the Report and Recommendation (Doc. 25),
filed June 13, 2016;

6.

Plaintiff’s Third Complaint (Doc. 23), filed June 13, 2016;

7.

Plaintiff’s [Second] Third Complaint (Doc. 24), filed June 13, 2016; and

8.

Plaintiff’s Motion to Separate Complaint (Doc. 22), filed June 13, 2016.

Alongside his “Second Complaint” (Doc. 17 (“Second Amended Complaint”)),
Plaintiff filed an Application to Proceed in District Court Without Prepaying Fees or Costs
(Doc. 18 (“Application”)). U.S. Magistrate Judge David A. Baker recommends that the
Court deny Plaintiff’s Application and dismiss the Second Amended Complaint on the
ground that Plaintiff fails to affirmatively demonstrate complete diversity to establish the
Court’s subject matter jurisdiction. (Doc. 19 (“R&R”).) Magistrate Judge Baker also
identified the Second Amended Complaint as an impermissible shotgun complaint. (Id.)
On June 13, 2016, Plaintiff: (1) objected to the R&R (Doc. 25 (“Objections”));
(2) filed two separate “Third Complaints” against distinct defendants (respectively,
Doc. 23 (“1st Third Amended Complaint”); Doc. 24 (“2d Third Amended Complaint”));
and (3) moved the Court to “separate” his complaint and “appoint a second docket number
for the [2d Third Amended Complaint]” (Doc. 22 (“Motion to Separate”)). 1
When a party objects to a magistrate judge’s findings, the district court must “make

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In light of the 1st and 2d Third Amended Complaints and the corresponding
Motion to Separate Complaint (Doc. 22), Plaintiff’s Motion to Separate Complaint and
Affidavit in Support of Complaints (Doc. 16) directed to the Second Amended Complaint
is due to be denied.

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a de novo determination of those portions of the report . . . to which objection is made.”
28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” Id. The district court
must consider the record and factual issues based on the record independent of the
magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507,
513 (11th Cir. 1990).
Upon consideration of the Second Amended Complaint, R&R, and Objections, the
Court agrees with Magistrate Judge Baker’s well-reasoned recommendation and finds
that the R&R is due to be adopted. The Court will carry the Application and await a
renewed recommendation from Judge Baker as to the Motion to Separate and the viability
of the 1st and 2d Third Amended Complaints.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

U.S. Magistrate David A. Baker’s Report and Recommendation (Doc. 19) is
ADOPTED and CONFIRMED.

2.

Plaintiff’s Written Objections to the Report and Recommendation (Doc. 25)
are OVERRULED.

3.

Plaintiff’s “Second Complaint” (Doc. 17) is DISMISSED WITHOUT
PREJUDICE.

4.

Plaintiff’s Motion to Separate Complaint and Affidavit in Support of
Complaints (Doc. 16) is DENIED AS MOOT.

5.

The Motion to Separate Complaint (Doc. 22), Third Complaints (Docs. 23,
24), and Application to Proceed in District Court Without Prepaying Fees or
Costs (Doc. 18) are REFERRED to U.S. Magistrate Judge David A. Baker

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for a report and recommendation.
DONE AND ORDERED in Chambers in Orlando, Florida, on June 24, 2016.

Copies:
Counsel of Record
Pro Se Party

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