ROZIER v. MILLS, et al

Filing 12

ORDER OF DISMISSAL: 10 REPORT AND RECOMMENDATION is ACCEPTED and adopted as the court's further opinion. Clerk must enter judgment stating, "The second amended complaint is DISMISSED under 28 U.S.C.§1915(e)(2)(B)." Clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 6/27/2013. (jws)

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

DEVON A. ROZIER,
Plaintiff,
v.

CASE NO. 4:13cv96-RH/CAS

KEN MILLS et al.,
Defendants.
___________________________/

ORDER OF DISMISSAL
This case is before the court on the magistrate judge’s report and
recommendation, ECF No. 10 and the objections, ECF No. 11. I have reviewed de
novo the issues raised by the objections. The recommendation is for dismissal of
the second amended complaint on the court’s own motion.
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, 2006 WL 2671928, at *3 (11th Cir. 2006)

Case No. 4:13cv96-RH/CAS

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(unpublished); see also Jefferson Fourteenth Associates v. Wometco de Puerto
Rico, Inc., 695 F.2d 524 (11th Cir. 1983). Here the report and recommendation
gave the plaintiff adequate notice, and he had an opportunity to respond by filing
objections.
The report and recommendation correctly concludes that the second
amended complaint is deficient. The second amended complaint fails to state a
claim under 42 U.S.C. § 1983 on which relief can be granted, because the second
amended complaint does not allege that the defendants are state actors, and they
plainly are not. The plaintiff apparently has not attempted to state a claim under
Title VII or its state-law counterpart, and in any event the second amended
complaint fails to state a claim on which relief can be granted under those statutes,
in part because the second amended complaint names as defendants only
individuals, not the plaintiff’s former employer. Moreover, the record
affirmatively shows that the plaintiff did not comply with the conditions precedent
and time limits for a claim under those statutes.
IT IS ORDERED:
The report and recommendation is ACCEPTED and adopted as the court’s

Case No. 4:13cv96-RH/CAS

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further opinion. The clerk must enter judgment stating, “The second amended
complaint is dismissed under 28 U.S.C. § 1915(e)(2)(B).” The clerk must close the
file.
SO ORDERED on June 27, 2013.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv96-RH/CAS