Tyler v. Chong et al

Filing 7

ORDER: The report and recommendation (Doc. #6) is affirmed and adopted and incorporated by reference into this Order for all purposes, including appellate review. Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) is hereby denied without prejudice. This case is dismissed without prejudice, with leave to amend. Plaintiff is directed to file a complaint on or before December 8, 2020, along with a motion to proceed in forma pauperis. Failure to file a complaint as directed will result in this Order becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020). See Order for details. Signed by Judge Thomas P. Barber on 11/17/2020. (ANL)

Case 8:20-cv-02250-TPB-JSS Document 7 Filed 11/17/20 Page 1 of 3 PageID 42

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEANDRE DEVINE TYLER,
Plaintiff,
v.

Case No. 8:20-cv-2250-T-60JSS

YONG CHONG, LEFORTH VICENTE
MUNOZ and CARLOS IAN ORTIZ,
Defendants.
____________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on consideration of the report and
recommendation of Julie S. Sneed, United States Magistrate Judge, entered on
November 2, 2020. (Doc. 6). Judge Sneed recommends Plaintiff’s motion for leave
to proceed in forma pauperis (Doc. 2) be denied without prejudice, and that his case
be dismissed without prejudice due to Plaintiff’s failure to file a complaint. 1
Neither Plaintiff nor Defendants filed an objection to the report and
recommendation, and the time to object has expired.
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright,

Instead of filing a complaint, Plaintiff filed an affidavit. Even assuming the affidavit
could be construed as a complaint, it failed to comply with the Federal Rules of Civil
Procedure and contained several deficiencies identified by Judge Sneed in her report and
recommendation.
1

Case 8:20-cv-02250-TPB-JSS Document 7 Filed 11/17/20 Page 2 of 3 PageID 43

681 F.2d 732 (11th Cir. 1982).

In the absence of specific objections, there is no

requirement that a district judge review factual findings de novo, Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993), 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).
The district judge reviews legal conclusions de novo, even in the absence of an
objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994);
Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d
116 (11th Cir. 1994) (table).
Upon due consideration of the record, including Judge Sneed’s report and
recommendation, the Court adopts the report and recommendation. Consequently,
Plaintiff’s in forma pauperis motion is denied without prejudice. The case is
dismissed without prejudice, with leave to file a complaint that complies with the
Federal Rules of Civil Procedure and cures the deficiencies identified by Judge
Sneed in her report and recommendation. Plaintiff is directed to file his complaint,
along with a new motion for leave to proceed in forma pauperis, on or before
December 8, 2020. Failure to file a complaint as directed will result in this Order
becoming a final judgment. See Auto. Alignment & Body Serv., Inc. v. State Farm
Mut. Auto. Ins. Co., 953 F.3d 707, 719-20 (11th Cir. 2020).

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Case 8:20-cv-02250-TPB-JSS Document 7 Filed 11/17/20 Page 3 of 3 PageID 44

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Judge Sneed’s report and recommendation (Doc. 6) is AFFIRMED and
ADOPTED and INCORPORATED BY REFERENCE into this Order for
all purposes, including appellate review.

(2)

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is hereby
DENIED WITHOUT PREJUDICE.

(3)

This case is DISMISSED WITHOUT PREJUDICE, with leave to amend.
Plaintiff is directed to file a complaint on or before December 8, 2020, along
with a motion to proceed in forma pauperis. Failure to file a complaint as
directed will result in this Order becoming a final judgment. See Auto.
Alignment & Body Serv., Inc. v. State Farm Mut. Auto. Ins. Co., 953 F.3d 707,
719-20 (11th Cir. 2020).
DONE and ORDERED in Chambers, in Tampa, Florida, this 17th day of

November, 2020.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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