Murphy v. Emilius et al

Filing 9

ORDER denying Motion to Proceed In Forma Pauperis 2 and adopting the Report and Recommendation 6. Accordingly, this case is dismissed without prejudice. The Clerk's Office is directed to terminate any pending motions and deadlines and to close the case. Signed by Judge Kathryn Kimball Mizelle on 2/16/2021. (AS)

Case 8:20-cv-02819-KKM-SPF Document 9 Filed 02/16/21 Page 1 of 3 PageID 55

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KEVIN J. MURPHY,
Plaintiff,
v.

Case No. 8:20-cv-2819-KKM-SPF

CHRISTINA EMILIUS and
CHRISTOPHER KURVIN,
Defendants.

/
ORDER

On December 28, 2020, the United States Magistrate Judge entered a Report and
Recommendation (Doc. 6), recommending that Plaintiff Kevin J. Murphy’s Motion to
Proceed In Forma Pauperis (Doc. 2) be denied. All parties were furnished copies of the
Report and Recommendation and were afforded the opportunity to file objections
under 28 U.S.C. § 636(b)(1). No objections were filed. Considering the record and the
Magistrate Judge’s Report and Recommendation, the Court ACCEPTS and ADOPTS
the Report and Recommendation; DENIES Plaintiff’s motion; and DISMISSES the
case WITHOUT PREJUDICE.
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate judge’s
Report and Recommendation. 28 U.S.C. § 636(b)(1). If a party files a timely and specific

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objection to a finding of fact by the magistrate judge, the district court must conduct a
de novo review with respect to that factual issue. Stokes v. Singletary, 952 F.2d 1567, 1576
(11th Cir. 1992). The district court 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); Ashworth v. Glades Cnty. Bd. of Cnty. Comm’rs, 379 F. Supp. 3d 1244, 1246 (M.D.
Fla. 2019).
In the absence of any objection and after reviewing the factual allegations and
legal conclusions, the Court adopts the Report and Recommendation. The Report and
Recommendation recommends that Plaintiff’s request to proceed in forma pauperis be
denied because Plaintiff failed to state a claim. (Doc. 6, at 11); see 28 U.S.C.
§ 1915(e)(2)(B) (providing that, in a proceeding in forma pauperis, a “court shall dismiss
the case at any time if the court determines that . . . the action or appeal . . . fails to state
a claim on which relief may be granted”). Plaintiff’s Complaint cites 42 U.S.C. § 1983
as his basis for jurisdiction and alleges statutory causes of action under 18 U.S.C. §§ 241,
242, 1621, and 1623 and 28 U.S.C. § 2680. But these statutory claims fail because they
are based either in the criminal code or the Federal Torts Claims Act (FTCA). See
Thibeaux v. U.S. Atty. Gen., 275 F. App’x 889, 893 (11th Cir. 2008) (explaining that
similar “sections of Title 18 pertain to criminal law and do not provide a civil cause of
action or any civil remedies” and that FTCA claims permit only “certain causes of action
to be brought against federal officers acting in their official capacities”) (emphasis added).

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To the extent that Plaintiff’s Complaint can be construed as alleging a
constitutional violation, Plaintiff’s claim also fails. Plaintiff’s Complaint fails to state a
cognizable claim of relief against Defendant Christopher Kurvin because Plaintiff fails
to allege that Mr. Kurvin acted under color of law as required in a suit brought under
42 U.S.C. § 1983. See Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). And Plaintiff fails to
state a claim of relief against Defendant Deputy Christina Emilius in her individual and
official capacities because Plaintiff neither sets forth relevant facts alleging a violation
of a constitutional right, Taylor v. Hughes, 920 F.3d 729, 732 (11th Cir. 2019), nor facts
alleging a deprivation of her rights under an official policy or custom, see Monell Dep’t of
Soc. Serv., 436 U.S. 658, 694 (1978). Accordingly, it is now ORDERED:
(1) The Report and Recommendation (Doc. 6) is ACCEPTED and
ADOPTED and made a part of this Order for all purposes, including appellate review.
(2) Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. 2) is DENIED and this
case is DISMISSED WITHOUT PREJUDICE.
(3) The Clerk’s Office is directed to terminate any pending motions and deadlines
and to close the case.
ORDERED in Tampa, Florida, on February 16, 2021.

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