MILLER v. UNITED STATES OF AMERICA
Filing
33
ORDER ADOPTING 30 REPORT AND RECOMMENDATION and granting 12 Motion to Dismiss filed by UNITED STATES OF AMERICA and granting 17 Motion to Dismiss filed by FEDERAL DEFENDERS OF NEW YORK and directing the clerk to enter final judgment against the Plaintiff; signed by CHIEF JUDGE STEPHAN P MICKLE on 5/4/11. (tss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
EDWARD R. MILLER,
Plaintiff,
vs.
CASE NO. 1:10-cv-38-SPM/GRJ
UNITED STATES OF AMERICA, et al.,
Defendants.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court for consideration of the Magistrate
Judge’s Report and Recommendation (doc. 30), which recommends that the
Defendants’ Motion for Summary Judgment (doc. 12) and Motion to Dismiss
(doc. 17) be granted. Plaintiff has been afforded an opportunity to file objections
pursuant to Title 28, United States Code, Section 636(b)(1). Plaintiff, who is pro
se, filed an objection (doc. 31). Pursuant to Title 28, United States Code,
Section 636(b)(1), I have conducted a de novo review of the sections of the
report to which objections have been made. I find that the Report and
Recommendation is correct and should be adopted.
Plaintiff raised several objections to the Report and Recommendation, all
of which should be denied. First, Plaintiff’s claim against an unidentified United
States Marshal must be dismissed as barred by the Statute of Limitations,
regardless of whether her identity could somehow be determined. Plaintiff was
not prevented from bringing his claim within the statutory period. Additionally, the
breadth of New York’s long arm statute is immaterial, as it is Florida’s long arm
statute, which was properly considered by the Magistrate Judge, that is
applicable. Moreover, Plaintiff’s asserted health problems do not excuse his
failure to serve process on the defendant jails within the 120 days provided in the
Federal Rules of Civil Procedure, and Plaintiff did not request an extension of
time to do so until after the Report and Recommendation was issued. Justice
does not require that the Plaintiff be allowed to amend the complaint or that an
extension of time for service of process be granted.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Magistrate Judge’s Report and Recommendation (doc. 30) is
adopted and incorporated by reference into this order.
2.
All claims in this matter are dismissed.
3.
The clerk is directed to enter final judgment against Plaintiff on all
claims and close the file.
DONE AND ORDERED this fourth day of May, 2011.
s/StephanP.Mickl
s/ Stephan P. Mickle
Stephan P. Mickle
Chief United States District Judge
2
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