Monacelli v. Edison State College et al, No. 2:2009cv00122 - Document 9 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER denying 6 Motion for leave to proceed in forma pauperis and the case is dismissed without prejudice for failure to state a claim; adopting and incorporating findings of 7 Report and Recommendation and overruling objections. The Clerk shall enter judgment dismissing the case without prejudice for failure to state a claim, terminate all deadlines, and close the file. Signed by Judge John E. Steele on 4/13/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KATHALINA MONACELLI, Plaintiff, vs. Case No. 2:09-cv-122-FtM-29DNF EDISON STATE COLLEGE, KEN WALKER, LUCINDA KELLEY, and PAMELA FAIRFAX, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s Report and Recommendation (Doc. #7), filed March 18, 2009, recommending that plaintiff s Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. #6) be denied and the case dismissed for failure to state a claim. Plaintiff filed Objections (Doc. #8) on March 23, 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 Report and Recommendation, and plaintiff s Objections, the Court accepts the Report and Recommendation of the magistrate judge and overrules the objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #7) is hereby adopted and the findings incorporated herein. The objections thereto are overruled. 2. Plaintiff s Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. #6) is DENIED and the case is dismissed without prejudice for failure to state a claim. -2- 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 April, 2009. Copies: Hon. Douglas N. Frazier United States Magistrate Judge Plaintiff -3- 13th day of

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