Filed: Jan. 19, 2012
Latest Update: Jan. 19, 2012
Summary: ORDER MARY S. SCRIVEN, District Judge. THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Dkt. 2), filed on December 23, 2011. On January 4, 2012, Magistrate Judge Thomas B. McCoun III issued a Report and Recommendation, recommending that Plaintiff's motion be denied, the Complaint be dismissed without prejudice, and Plaintiff be directed "to file an Amended Complaint consistent with the pleading requirements of the Federal Rules
Summary: ORDER MARY S. SCRIVEN, District Judge. THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Dkt. 2), filed on December 23, 2011. On January 4, 2012, Magistrate Judge Thomas B. McCoun III issued a Report and Recommendation, recommending that Plaintiff's motion be denied, the Complaint be dismissed without prejudice, and Plaintiff be directed "to file an Amended Complaint consistent with the pleading requirements of the Federal Rules o..
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ORDER
MARY S. SCRIVEN, District Judge.
THIS CAUSE comes before the Court for consideration of Plaintiff's Motion for Leave to Proceed in Forma Pauperis (Dkt. 2), filed on December 23, 2011. On January 4, 2012, Magistrate Judge Thomas B. McCoun III issued a Report and Recommendation, recommending that Plaintiff's motion be denied, the Complaint be dismissed without prejudice, and Plaintiff be directed "to file an Amended Complaint consistent with the pleading requirements of the Federal Rules of Civil Procedure within twenty days of the court's Order[.]" (Dkt. 5 at 4) No parties filed objections, and the deadline to do so has passed.
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. § 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. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). A district court may not reject the credibility determinations of a magistrate judge without personally rehearing disputed testimony from the witness. Powell, 628 F.3d at 1256-58.
Upon consideration of the Report and Recommendation, in conjunction with an independent examination of the file, it is hereby ORDERED as follows:
(1) The Report and Recommendation (Dkt. 5) is adopted, confirmed, and approved in all respects; and,
(2) Plaintiff's Second Motion for Leave to Proceed in Forma Pauperis (Dkt. 2) is DENIED and Plaintiff's Complaint (Dkt. 1) is DISMISSED without prejudice.
(3) A review of the record in this case reveals that Plaintiff filed an Amended Complaint on January 17, 2012. (Dkt. 11) However, the Court notes that no filing fee was paid and no subsequent Motion for Leave to Proceed in Forma Pauperis was filed by Plaintiff. Accordingly, Plaintiff shall have up to and including February 2, 2012, to either pay the filing fee or file a Renewed Motion for Leave to Proceed in Forma Pauperis. The Amended Complaint shall not be deemed filed until the fee is paid or leave to proceed in forma pauperis is granted.
DONE and ORDERED.
