Banks v. Pompeo et al, No. 2:2019cv00755 - Document 13 (M.D. Fla. 2019)

Court Description: OPINION AND ORDER overruling 12 construed objections; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency; terminating 8 Motion for clarification; adopting and incorporating 11 Report and Recommendations. The case is dismissed without prejudice. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 12/30/2019. (RKR)

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Banks v. Pompeo et al Doc. 13 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION EDDIE ALEXANDER BANKS, Plaintiff, v. Case No: 2:19-cv-755-FtM-29NPM MIKE POMPEO, LAUREL M. LEE, WILLIAM BARR, ASHLEY MOODY, CARMINE MARCENO, GENE SPAULDING, and JOSIAH SHIBLY, Defendants. OPINION AND ORDER This matter is before the Court on consideration of the Magistrate Judge’s Report and Recommendation (Doc. #11), filed December 11, 2019, recommending that plaintiff’s Affidavit of Indigency (Doc. #2) be denied, and the action be dismissed. Plaintiff filed a document in response (Doc. #12) on December 20, 2019, which is construed as his objections. 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). 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 conclusions de novo, even in the absence of an objection. legal See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). Plaintiff initiated the case with a “Notice of Motion and Motion to Intervene Admiralty or Maritime Within the Meaning of Rule 9(h) with an Injunction” under the title of “Treaty”. #1.) (Doc. Defendants are public officials of either the United States or the State of Florida. construed as a The Magistrate Judge found the document, Complaint, to be “wholly insubstantial, unintelligible, and frivolous”, and therefore found that allowing any amendment would be futile. Indeed the construed objections do not directly address why a claim for relief has been stated, or that any viable claim could be stated, but rather states that the Magistrate Judge has “no contract with regard to [his] business other then [sic] your oath of office and fiduciary duty. . . . You are my guest.” (Doc. #12, p. 1.) After a careful and complete review of the findings and recommendations, as well as the record - 2 - in this case, the Court agrees with the Report and Recommendation of the Magistrate Judge and will overrule the construed objections. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #11) is hereby adopted and the findings incorporated herein. 2. Plaintiff's construed objections (Doc. #12) are overruled. 3. Plaintiff’s Affidavit of Indigency (Doc. #2) is denied. 3. The case is dismissed without prejudice. The Clerk shall enter judgment accordingly, terminate all pending motions, and close the file. DONE and ORDERED at Fort Myers, Florida, this of December, 2019. Copies: All Parties of Record - 3 - 30th day

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