Frees v. Kiernan et al, No. 2:2009cv00476 - Document 8 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency and dismissing Complaint; adopting and incorporating 7 Report and Recommendations. The Clerk shall enter judgment dismissing the case without prejudice for lack of jurisdiction and for failure to state a claim. The Clerk shall terminate all deadlines and close the case. Signed by Judge John E. Steele on 10/19/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JENNIFER ALEXIS FREES, Plaintiff, vs. Case No. PAUL KIERNAN; JOHN S. CHARLOTTE HUGGINS; BEVERLY Commissioner; DOES 1-10, 2:09-cv-476-FtM-29SPC HEIM; WOODS Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s Report and Recommendation (Doc. #7), filed September 28, 2009, recommending that plaintiff s Affidavit of Indigency (Doc. #2), construed as a motion to proceed in forma pauperis, be denied and the case be dismissed for failure to state a claim and for lack of jurisdiction. 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). 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. Co., 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 Report and Recommendation, the Court accepts the Report and Recommendation of the magistrate judge and finds that jurisdiction is not proper in the State of Florida and the allegations are insufficient to state a plausible cause of action. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #7) is hereby adopted and the findings incorporated herein. 2. The Affidavit of Indigency (Doc. #2), construed as a motion to proceed in forma pauperis, is DENIED and the Verified Complaint (Doc. #1) is dismissed without prejudice for lack of jurisdiction and for failure to state a claim. 3. The Clerk shall enter judgment dismissing the case without prejudice for lack of jurisdiction and for failure to state a -2- claim, terminate all deadlines and motions as moot, and close the file. DONE AND ORDERED at Fort Myers, Florida, this October, 2009. Copies: Hon. Sheri Polster Chappell United States Magistrate Judge Counsel of Record Unrepresented parties -3- 19th day of

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