Vardon v. Florida State Board of Administration

Filing 9

ORDER vacation 5 Order; adopting 3 Report and Recommendation; dismissing 1 Complaint and 4 Amended Complaint; denying 2 Motion to proceed in forma pauperis. Signed by Judge James D. Whittemore on 7/15/2011. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JAMES M. VARDON,
Plaintiff,
vs.

Case No. 8:11-CV-I032-T-27TBM

FLORIDA STATE
BOARD OF ADMINISTRATION, alk/a
Florida Department of
Management Services,
Defendant.
____________________________

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ORDER
BEFORE THE COURT is a "Memo" (Dkt 8) filed by the pro se Plaintiff, which is
construed as a motion for reconsideration of a June 22, 2011 Order (Dkt. 5). Upon consideration,
the motion is GRANTED in part.
The June 22, 2011 Order adopted the Report and Recommendation submitted by the
Magistrate Judge (Dkt. 3) and dismissed Plaintiffs Complaint. Plaintiff asserts that, although the
Order states that he filed no objections to the Report and Recommendation, he did file objections.
The Report and Recommendation (Dkt. 3) was entered on the docket on June 1,2011 and
was mailed to Plaintiff on the following day. Plaintiffs objections were filed on June 24, 2011 (Dkt.

6). See Local Rul 6.02(a) ("Within fourteen (14) days after . . . service [of a report and
recommendation], any party may file and serve written objections thereto. "); Fed. R. Civ. P. 72(b)(2)

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("Within 14 days after being served with a copy of the recommended disposition, a party may serve
and file specific written objections to the proposed findings and recommendations."). A review of
Plaintiffs objections shows that, even if timely, they are unfounded and do not require a different
resolution of the Magistrate Judge's Report and Recommendation.
However, Plaintiff also notes that, although the June 22, 2011 Order directed him to file an
amended complaint, he had already done so two days before the Magistrate Judge entered his Report
and Recommendation. As Plaintiff did not have the benefit of the Magistrate Judge's Report and
Recommendation when he filed the Amended Complaint (Dkt. 4), and the Amended Complaint
suffers from the same defects, the June 22, 2011 Order should have dismissed both Complaints.
Accordingly, Plaintiffs construed motion for reconsideration (Dkt. 5) is GRANTED in part as
follows.
1) The June 22, 2011 Order (Dkt. 5) is VACATED.
2) The Magistrate Judge's Report and Recommendation (Dkt. 3) is adopted, confirmed, and
approved and is made a part of this order for all purposes, including appellate review.
3) Plaintiffs Complaint (Dkt. 1) and Amended Complaint (Dkt. 4) are both DISMISSED.
4)

Plaintiffs Application to Proceed in forma pauperis (Dkt. 2) is DENIED without

prejudice.
5) Plaintiff shall file a second amended complaint within twenty (20) days of the date of
this Order, failing which this case will be dismissed without further notice.
6) The second amended complaint shall include a short and plain statement of Plaintiffs
claims and shall include (a) a brief description ofthe event or events upon which each claim is based,
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(b) a brief description of what Defendant did or failed to do and how Defendant's act or omission
injured Plaintiff, and (c) a short and plain statement of the basis for federal subject matter
jurisdiction.
DONE AND ORDERED in chambers this

Copies to: pro se Plaintiff

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day of July, 2011.