Monacelli v. Lee County Education Association et al, No. 2:2008cv00915 - Document 12 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER adopting 10 Report and Recommendation and incorporating findings. The objections are overruled. Plaintiff's request to proceed in forma pauperis is denied and the case is dismissed without prejudice for failure to state a claim. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 5/11/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. Case No. 2:08-cv-915-FtM-29SPC LEE COUNTY EDUCATION ASSOCIATION; LEE COUNTY SCHOOL BOARD; STEVE TEUBER District 4 School Board Member; DIPLOMAT MIDDLE SCHOOL; ANGELA ROLES, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s Report and Recommendation (Doc. #10), filed April 21, 2009, recommending that plaintiff be denied in forma pauperis status and the case be dismissed for failure to state a claim. Plaintiff filed Written Objections (Doc. #11) on April 27, 2009. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge s report and recommendation. 636(b)(1); 28 U.S.C. § Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge shall make a portions de novo determination of those of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). This requires that the district judge give fresh consideration to those issues to which specific objection has been made by a party. Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong. § 2 (1976)). Even in the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 636(b)(1)(C). 28 U.S.C. § The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff d, 28 F.3d 116 (11th Cir. 1994) (Table). After conducting an independent examination of the file and upon due consideration of the leave granted to amend the complaint, the Amended Complaint (Doc. #9), the Report and Recommendation, and plaintiff s Objections, Recommendation of the the Court magistrate accepts judge and the Report and overrules the objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #10) is hereby adopted and the findings incorporated herein. overruled. -2- The objections thereto are 2. Plaintiff s request to proceed in forma pauperis is DENIED and the case is dismissed without prejudice for failure to state a claim. 3. The Clerk shall enter judgment accordingly, terminate all deadlines and motions as moot, and close the file. DONE AND ORDERED at Fort Myers, Florida, this May, 2009. Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties -3- 11th day of

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