Reilly v. Harvin et al, No. 2:2009cv00363 - Document 10 (M.D. Fla. 2009)

Court Description: OPINION AND ORDER denying 4 Motion for leave to proceed in forma pauperis/affidavit of indigency; adopting and incorporating 7 Report and Recommendations. The Clerk shall enter judgment dismissing the case without prejudice, terminate all deadlines, and close the case. Signed by Judge John E. Steele on 8/17/2009. (RKM)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MICHAEL REILLY, Plaintiff, vs. Case No. 2:09-cv-363-FtM-29DNF MARLYN HARVIN and ROBIN WEHLE, OFFICE OF COMMUNITY CORRECTIONS, Defendants. ___________________________________ OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge s Report and Recommendation (Doc. #7), filed July 29, 2009, recommending that the Affidavit of Indigency (Doc. #4), construed as a motion to proceed in forma pauperis, be denied and the case dismissed. Plaintiff filed an Objection (Doc. #8) and Affidavit (Doc. #9) in response on August 3, 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 Report and Recommendation and Objection thereto, the Court accepts the Report and Recommendation of the magistrate judge and will overrule the objection. To the extent that plaintiff is attempting to bring a criminal complaint, as stated in the Objection, only the Department of Justice, by and through the United States Attorney s Office, is authorized to initiate criminal actions. Therefore, the Response to Court Order Requiring Plaintiff to File Amended Complaint in the Affidavit for Injunction Hearing (Doc. #6), construed as an Amended Complaint, is due to be dismissed. Accordingly, it is now ORDERED: -2- 1. The Report and Recommendation (Doc. #7) is hereby adopted and the findings incorporated herein. 2. Plaintiff s Affidavit of Indigency (Doc. #4), construed as a motion to proceed in forma pauperis, is DENIED. 3. The Clerk shall enter judgment dismissing the case without prejudice, terminate all pending motions and deadlines, and close the case. DONE AND ORDERED at Fort Myers, Florida, this August, 2009. Copies: Hon. Douglas N. Frazier United States Magistrate Judge Unrepresented parties -3- 17th day of

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