Redondo v. Parker et al

Filing 8

ORDER terminating 2 Motion for leave to proceed in forma pauperis/affidavit of indigency; adopting 3 Report and Recommendations.; denying as moot 7 motion for recusal. Signed by Judge Roy B. Dalton, Jr. on 2/6/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DOMICIANO REDONDO,
Plaintiff,
v.

Case No. 6:17-cv-55-Orl-37TBS

JACK PARKER; WAYNE S. STEIN; and
JAMES H. RICHEY,
Defendants.
ORDER
This cause is before the Court on the following:
1.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 3), filed January 17, 2017; and

2.

Plaintiff’s Notice of Appeal (Doc. 6), which the Court construes as an
objection to U.S. Magistrate Judge Thomas B. Smith’s Report and
Recommendation, filed January 30, 2017.
BACKGROUND

Plaintiff—proceeding pro se—initiated this action for suppression of his rights of
free speech and to petition the government against Defendants, who are employed at the
Eastern Florida State College (“College”), for implementing a time restrictive policy of the
College’s library computers (“Computer Policy”). (See Doc. 1.) Along with his Complaint,
Plaintiff moved to proceed in forma pauperis. (Doc. 2 (“IFP Motion”).) On referral,
U.S. Magistrate Judge Thomas B. Smith issued a Report, recommending that the Court
deny the IFP Motion and dismiss the Complaint without prejudice. (Doc. 3 (“R&R”).) On
January 30, 2017, Plaintiff filed a document titled “Notice of Appeal” with the Court.

(Doc. 6 (“Filing”).) But Plaintiff cannot directly appeal the R&R to the U.S. Court of
Appeals for the Eleventh Circuit as the R&R is not itself a final and appealable order. See
Perez-Prigeo v. Alachua Cty. Clerk of Court, 148 F.3d 1272, 1273 (11th Cir. 1998). Hence
the Court will construe the Filing as an objection to Magistrate Judge Smith’s R&R.
When a party objects to a magistrate judge’s findings, the district court must “make
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).
In his R&R, Magistrate Judge Smith found that: (1) the Complaint is a reiteration
of Plaintiff’s earlier lawsuit against the College, (see Case No. 6:15-cv-1818-40-DAB
(“Redondo I”)); (2) although Plaintiff avers that he is suing Defendants as individuals, it
is apparent from the Complaint that Plaintiff is suing Defendants in their official capacities;
and (3) because the facts here are identical to Redondo I, the doctrine of sovereign
immunity is equally applicable to Defendants. (Doc. 3, pp. 5–6.) In his Filing, Plaintiff
represents that he is appealing the recommendations in the R&R but states no further
grounds for his objection. (See Doc. 6.)
Having conducted an independent, de novo review of the entire record and the
record in Redondo I, the Court agrees with Magistrate Judge Smith’s findings and
recommendations. Indeed, Plaintiff has brought a nearly identical suit against the College
once before. (Compare Redondo I, Doc. 8, with Doc. 1.) Plaintiff cannot now do an

2

end-run around the Eleventh Amendment by styling his Complaint as one against
Defendants in their individual capacity. Especially here, where Plaintiff has repurposed
the same facts from Redondo I, making clear that Defendants are being sued in their
official capacities. (See Doc. 1, ¶¶ 17, 20, 21.)
In light of the foregoing, the Court finds that Plaintiff’s Filing—which the Court
construes as Plaintiff’s objection to the R&R—is due to be overruled, the R&R is due to
be adopted, and the Complaint is due to be dismissed with prejudice as amendment
would be futile.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Plaintiff’s Notice of Appeal (Doc. 6), which the Court construes as an
objection to U.S. Magistrate Judge Thomas B. Smith’s Report and
Recommendation is OVERRULED.

2.

U.S. Magistrate Judge Thomas B. Smith’s Report and Recommendation
(Doc. 3) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

Plaintiff’s Complaint (Doc. 1) is DISMISSED WITH PREJUDICE.

4.

Plaintiff’s Motion for Recusal (Doc. 7) is DENIED AS MOOT.

5.

The Clerk is DIRECTED to close the case.

DONE AND ORDERED in Chambers in Orlando, Florida, on February 6, 2017.

3

Copies:
Counsel of Record
Pro Se Party

4