Andriatti v. Chapman et al
Filing
7
ORDER AND OPINION that Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation 3 is ADOPTED. IT IS FURTHER ORDERED that Plaintiff's Complaint 1 is DISMISSED for failure to state a claim. IT IS FURTHER ORDERED that Plaintiff's 6 Motion for Default Judgment as to Joe Chapman is DENIED. Signed by Judge William S. Duffey, Jr on 11/17/2014. (anc)
Corpus in this case.” (Complaint at 1). Plaintiff states that she has been
imprisoned against her will for a “victimless crime,” and that the state court lacks
personal jurisdiction over her because she is a 69-year-old woman. (Id.). The
Court construes Plaintiff’s Complaint as a request that the Court issue a writ of
mandamus compelling the state court to release her from custody.
On April 1, 2014, the Magistrate Judge recommended that the Complaint be
dismissed with prejudice. The Magistrate Judge noted that Plaintiff raised the
same claims and sought the same relief in an earlier proceeding (13-cv-4033), and
recommended dismissing this case for the same reasons set forth in the Magistrate
Judge’s prior Report and Recommendation, specifically that the Court did not have
authority to issue a writ of mandamus compelling state officers or the state court to
perform their official duties.1 Petitioner did not object to the Magistrate Judge’s
R&R. On June 16, 2014, Petitioner filed her Motion for Default Judgment.
II.
DISCUSSION
A.
Standard of Review
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
1
On November 14, 2014, the Court adopted the Magistrate Judge’s R&R in
Case No. 13-cv-4033 and dismissed Plaintiff’s complaint in that action. (See
Andriatti v. Warren, 13-cv-4033, at [23]).
2
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
B.
Analysis
Plaintiff has not filed objections to the Magistrate Judge’s finding that her
Complaint fails to state a claim. The Court thus reviews the Magistrate Judge’s
findings and recommendations for plain error. See Slay 714 F.2d at 1095. The
Magistrate Judge found that Plaintiff was not entitled to a writ of mandamus to
direct state officers or the state court in the performance of their official duties, and
properly recommended that the Court dismiss the Complaint. See
Bailey v. Silberman, 226 F. App’x 922, 924 (11th Cir. 2007) (citing 28 U.S.C.
§ 1361 & Moye v. Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275, 1276 (5th
3
Cir. 1973)). The Court finds no plain error in the Magistrate Judge’s findings or
recommendations. See Slay, 714 F.2d at 1095.2
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint [1] is
DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Default Judgment
as to Joe Chapman [6] is DENIED.
SO ORDERED this 17th day of November, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
2
Plaintiff’s Motion for Default Judgment is also required to be denied.
Plaintiff does not explain why she is entitled to default judgment. The Court
assumes that Plaintiff seeks a default judgment based upon Joe Chapman’s failure
to respond to her Complaint. The Court notes that, having determined that
Plaintiff’s Complaint fails to state a claim pursuant to 28 U.S.C. § 1915A(b)(1) and
must be dismissed, Chapman is not obligated to respond, and default judgment is
not warranted.
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