Clark v. School Board of Collier County, Florida et al, No. 2:2013cv00820 - Document 103 (M.D. Fla. 2016)

Court Description: OPINION AND ORDER adopting 99 Report and Recommendations; overruling 102 Objections; dismissing 89 Third Amended Complaint without prejudice for failure to prosecute, except as to the applicable statute of limitations. The Clerk shall terminate all pending motions and deadlines and close the file. Signed by Judge John E. Steele on 8/25/2016. (RKR)

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Clark v. School Board of Collier County, Florida et al Doc. 103 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CARLOS D. CLARK, Plaintiff, v. Case No: 2:13-cv-820-FtM-29MRM SCHOOL BOARD OF COLLIER COUNTY, FLORIDA and MARK ROSENBALM, in his individual capacity, Defendants. OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge’s Report and Recommendation (Doc. #99), filed August 9, 2016, recommending that Complaint (Doc. #89) be dismissed. plaintiff's Third Amended Plaintiff filed Objections (Doc. #102) on August 23, 2016. 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. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). 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. § Dockets.Justia.com 636(b)(1)(C). See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). 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. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). 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). Plaintiff argues that the Magistrate Judge failed to make factual findings on the merits of defendants’ Motion for Summary Judgment (Doc. #91), which is not actually in dispute, and that the recommendation for dismissal is based solely on plaintiff’s failure to oppose the motion. Plaintiff acknowledges that the response “is untimely”, but does not indicate when it will be filed or whether additional a third time to extension respond. of time Rather, will be plaintiff filed seeking objects and “requests that the Court consider the Response to the Motion for Summary Judgment on its merits.” It is unclear what response plaintiff seeks to have the Court consider since no response has been filed. - 2 - On June 3, 2016, the Clerk of Court issued a standard Summary Judgment Notice (Doc. #92), the same day that defendants filed their Motion for Summary Judgment. Plaintiff sought and obtained an extension of time through June 27, 2016, and a second extension of time through July 11, 2016 to respond to defendants’ Motion for Summary Judgment. (Docs. ## 94, 97.) In between seeking the extensions of time, on June 29, 2016, plaintiff filed a Notice of Filing Supplemental Documents to Plaintiff’s Motion to Compel (Doc. #96) and attached the Affidavit of Barbara J. Clark (Doc. #96-1). On July 25, 2016, finding no response, the Magistrate Judge issued an Order to Show Cause (Doc. #98) directing plaintiff to show cause for the failure to respond and to file a response. Plaintiff was on notice that the failure to do so would result in a recommendation for dismissal of the Third Amended Complaint. Plaintiff did not response to the Order to Show Cause and did not response to the Motion for Summary Judgment. On August 9, 2016, just over two months after the filing of the Motion for Summary Judgment, the Magistrate Judge issued the Report and Recommendation finding that plaintiff had “blatantly failed to comply with two successive Court Orders” and that the conclusion was one of “willful delay” warranting dismissal. - 3 - only Thereafter, within the timeframe to file objections to the Report and Recommendation, plaintiff filed a Notice of Filing Supplemental Documents to Plaintiff’s Motion to Compel (Doc. #100) and attached an email described as “Exhibit A to Affidavit of Barbara J. Clark in opposition to Defendant’s Motion for Summary Judgment” 1 and also filed a Notice of Filing Supplemental Documents to Plaintiff’s Motion in Opposition to Motion for Summary Judgment (Doc. #101) and attaches plaintiff’s answers to interrogatories and depositions. Once again, no “Motion in Opposition” or any other type of response was filed. Even if plaintiff was mistaken in his belief that a response had been filed, the Court has made it abundantly clear that no response has been filed. After a careful and complete review of the findings and recommendations, as well as a de novo review of the record in this case, the Court will overrule the objection and dismiss the Third Amended Complaint. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #99) is hereby ADOPTED and the findings incorporated herein. 2. Plaintiff's Objections (Doc. #102) are overruled. 1 No motions to compel are currently pending in this case. - 4 - 3. The Third Amended Complaint (Doc. #89) is dismissed without prejudice for failure to prosecute, except as to the applicable statute of limitations. The Clerk shall terminate all pending motions and deadlines and close the file. DONE and ORDERED at Fort Myers, Florida, this of August, 2016. Copies: Hon. Mac R. McCoy All Parties of Record - 5 - 25th day

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