VASQUEZ v. FOSTER

Filing 7

ORDER OF DISMISSAL. ACCEPTING 5 REPORT AND RECOMMENDATION. The clerk must enter judgment stating, This case is DISMISSEDwith prejudice. Signed by JUDGE ROBERT L HINKLE on 11/20/12. (pll)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

ROSA J. VASQUEZ,
Plaintiff,
v.

CASE NO. 4:12cv532-RH/CAS

ROBERT M. FOSTER,
Defendant.
_____________________________/
ORDER OF DISMISSAL
This case is before the court on the magistrate judge’s report and
recommendation, ECF No. 5, and the objections, ECF No. 6. I have reviewed de
novo the issues raised by the objections.
The defendant is a state circuit judge. The complaint alleges that the
defendant presided over a criminal case in which the plaintiff’s daughter was a
defendant and that, because of the defendant’s malpractice, the plaintiff’s daughter
spent time in jail. The complaint does not allege that the defendant acted in the
absence of jurisdiction, just that the defendant ruled erroneously.
The report and recommendation correctly concludes that the plaintiff is not
entitled to relief. This may be so for a number of reasons, but the most obvious is
Case No. 4:12cv532-RH/CAS

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judicial immunity. The complaint fails to state a claim on which relief can be
granted.
A plaintiff may be entitled to notice and an opportunity to be heard prior to a
dismissal on the court’s own motion in circumstances like these. See, e.g., Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1069 (11th Cir. 2007); Danow v.
Borack, 197 F. App’x 853, 856 (11th Cir. 2006); see also Jefferson Fourteenth
Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524 (11th Cir. 1983). Here the
report and recommendation gave the plaintiff adequate notice, and she had an
opportunity to respond—and took advantage of the opportunity—by filing
objections. The plaintiff has been fully heard.
For these reasons,
IT IS ORDERED:
The report and recommendation is ACCEPTED and adopted as the court’s
further opinion. The clerk must enter judgment stating, “This case is DISMISSED
with prejudice.” The clerk must close the file.
SO ORDERED on November 20, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:12cv532-RH/CAS