Mitchell v. North Carolina Medical Board et al

Filing 9

ORDER adopting and confirming 4 REPORT AND RECOMMENDATIONS; denying 3 Motion for Temporary Seal of § 1915 Application, Complaint, and Preliminary Injunction; denying without prejudice 2 Application to Proceed in District Court without Prepaying Fees or Costs. Signed by Judge Roy B. Dalton, Jr. on 10/14/2016. (SWT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

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PAUL A. MITCHELL,
Plaintiff,

v.

Case No. 6:16-cv-1648-0rl-37DAB

NORTH CAROLINA MEDICAL BOARD;
PATRICK BAESTRERI; SARAH
EARLY; KAREN MCGOVERN;
CHERYL HARA; ASHLEY M. KLEIN;
SADZI OLIVA; and DANIEL A.
KELBER,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Plaintiff's Complaint (S-Doc. 1), filed September 20, 2016;

2.

Plaintiff's Application to Proceed in District Court Without Prepaying Fees
or Costs (S-Doc. 2), filed September 20, 2016;

3.

Plaintiff's Motion for Temporary Seal of§ 1915 Application, Complaint, and
Preliminary Injunction (S-Doc. 3), filed September 20, 2016; and

4.

U.S. Magistrate Judge David A Baker's Report and Recommendation
(S-Doc. 4), filed September 21, 2016.

5.

Plaintiff's Objection to Report and Recommendation (S-Doc. 8), filed
October 5, 2016.

On September 20, 2016, Plaintiff filed a thirty-five page Complaint asserting claims
against several Defendants for: (1) third party wrongful interference with prospective
employment in violation of Title VII of the Civil Rights Act of 1964; (2) deprivation of his

right to enforce contracts under 42 U.S.C. § 1981; (3) intentional discriminatory
interference with contract or prospective contractual relations; (4) deprivations in violation
of the equality clause of§ 1981; (5) deprivation of property interests without due process
in violation of § 1983; (6) deprivation of liberty interests without due process; and
(7) deprivation of equal protection. (Doc. 1.)
Alongside the Complaint, Plaintiff also filed a motion to proceed in forma pauperis
(S-Doc. 2 ("IFP Motion"}} and a motion to temporarily seal the IFP Motion, Complaint,
and a forthcoming motion for a preliminary injunction 1 (S-Doc. 3 ("Motion to Seal"}}.
In a Report and Recommendation issued September 21, 2016, U.S. Magistrate
Judge David A. Baker recommends that the Court: (1} deny the Motion to Seal due to
Plaintiff's failure to present a proper basis for proceeding under seal; and (2) deny the IFP
Motion with leave to reassert if Plaintiff chooses to proceed in an open proceeding.
(S-Doc. 4 ("R&R"}.)
On October 5, 2016, Plaintiff objected to the R&R on grounds that: (1) the
Undersigned did not authorize Magistrate Judge Baker to issue an R&R on the Motion to
Seal; (2) Plaintiff did indeed provide a proper basis to proceed under seal, supported by
controlling precedent; and (3) despite having been assigned to Magistrate Judge Baker,
U.S. Magistrate Judge Thomas B. Smith drafted the R&R and then cut and pasted
Magistrate Judge Baker's signature onto the R&R "for the corrupt purpose of creating the
perception that the assigned magistrate issued [the] order." (S-Doc. 8 ("Objections").)
When a party objects to a magistrate judge's findings, the district court must "make

1

Plaintiff filed a motion for preliminary injunction on September 23, 2016.
(S-Doc. 5.)

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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 de novo review of the record, the Court finds that Plaintiff's Objections are
meritless and due to be overruled. First, contrary to Plaintiff's Objections, the Undersigned
referred both the IFP Motion and the Motion to Seal to Magistrate Judge Baker for a report
and recommendation. Thus, the R&R was authorized. Additionally, Plaintiff has produced
no documentation to corroborate his assertion offorgery against Magistrate Judge Smith.
Finally, the Court agrees with Magistrate Judge Baker's conclusion that Plaintiff
has not presented a proper basis to warrant proceeding under seal. As noted in the R&R,
Plaintiff contends that "[s]ealing documents is necessary to prevent a clear and serious
injury to due process rights because [he] is a poor person." (S-Doc. 3, p. 2.) Plaintiff then
goes onto allege that, in the past, Defendants have recruited U.S. magistrate judges to
deny his motions to proceed in forma pauperis and Defendants will thus be deprived of
the opportunity to do so if Plaintiff's Motion to Seal is granted. (Id. at 2-6.) Such grounds
are not only incredulous but also unsupported by case law. As such, the Court finds that
R&R is due to be adopted, and that the Motion to Seal is due to be denied.
As a final matter, Plaintiff has now on two occasions sent email correspondence
to the Undersigned's chambers email in clear violation of the Local Rules. See Local
Rules 3.01 (f); (see also S-Doc. 7.) Plaintiff is warned that continued violations of the Local

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Rules may result in severe sanctions.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Plaintiff's Objection to Report and Recommendation {S-Doc. 8) is
OVERRULED.

2.

U.S. Magistrate Judge David A. Baker's Report and Recommendation
{S-Doc. 4) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

Plaintiff's Motion for Temporary Seal of§ 1915 Application, Complaint, and
Preliminary Injunction {S-Doc. 3) is DENIED.

4.

Plaintiff's Application to Proceed in District Court without Prepaying Fees or
Costs {S-Doc. 2) is DENIED WITHOUT PREJUDICE.

5.

In Plaintiff chooses to prosecute this action in an open proceeding, he may
refile his application to proceed without prepayment of fees of costs on or
before Monday, October 31, 2016.

DONE AND ORDERED in Chambers in Orlando, Florida, on October 14, 2016.

Copies:
Counsel of Record
Pro Se Party

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