Fluker v. State Of Florida

Filing 8

ORDER ADOPTING 3 Report and Recommendation; DENYING 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. Signed by Judge Mary S. Scriven on 5/15/2013. (SL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ANNETTE FLUKER,
Plaintiff,
vs.

Case No.: 8:13-cv1085-T35-AEP

STATE OF FLORIDA,
Defendant.
________________________________/
ORDER
THIS CAUSE comes before the Court for consideration of Plaintiff’s Affidavit of
Indigency (Dkt. 2), which the Court construes as a motion for leave to proceed in forma
pauperis. On April 24, 2013, United States Magistrate Judge Anthony E. Porcelli issued
a Report and Recommendation (Dkt. 3), recommending that Plaintiff’s motion for leave
to proceed in forma pauperis be denied and that Plaintiff’s complaint be dismissed.
Judge Porcelli found the Court could not determine what claims Plaintiff seeks to assert
or whether a basis for establishing the Court’s jurisdiction exists as Plaintiff’s “complaint”
contained “incoherent, disjointed, and illegible allegations against the State of Florida.”
(Dkt. 3) Judge Porcelli also found that amendment would be futile as Plaintiff cannot
establish a basis for federal jurisdiction and Plaintiff’s claims appear to be frivolous
since they appear to involve events occurring more than twenty years ago. (Id.) No
objection has been filed to the Report and Recommendation and the deadline to do so
has passed.
In the Eleventh Circuit, a district judge may accept, reject or modify the
magistrate judge's report and recommendation after conducting a careful and complete
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review of the findings and recommendations. 28 U.S.C. § 636(b)(1); see Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”

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U.S.C. § 636(b)(1)(C). This requires that the district judge “give fresh consideration to
those issues to which specific objection has been made by a party.” Jeffrey S. v. State
Bd. of Educ., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R. 1609, 94th Cong. § 2
(1976)). In the absence of specific objections, there is no requirement that a district
judge review factual findings de novo and the court may accept, reject, or modify, in
whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C); see
Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). The district judge reviews
legal conclusions de novo, even in the absence of an objection. See Cooper-Houston
v. Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
Upon consideration of the Report and Recommendation, and in conjunction with
an independent examination of the file, the Court is of the opinion that the Report and
Recommendation should be adopted, confirmed, and approved in all respects.
Accordingly, it is ORDERED that:
1. The Report and Recommendation (Dkt. 3) is CONFIRMED and ADOPTED as
part of this Order;
2. Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. 2) is DENIED;
3. Plaintiff’s Complaint is DISMISSED;
4. The Clerk is DIRECTED to CLOSE this Case.
DONE and ORDERED in Tampa, Florida, this 15th day of May 2013.

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Copies furnished to:
Counsel of Record
Any Unrepresented Party

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