Opinion
Case No. 3:12-cv-987-J-99MMH-MCR
11-06-2012
JOHN FITZGERALD PULLINS, Plaintiff, v. DEAN HAGGINS, et al., Defendants.
ORDER
THIS CAUSE is before the Court on Magistrate Judge Monte C. Richardson's Report and Recommendation (Doc. No. 5; Report) entered on September 12, 2012. In the Report, Judge Richardson recommends that the Court deny Plaintiff, John Pullins's (Pullins's), Affidavit of Indigency (Doc. No. 2; Motion), which Judge Richardson construed as a Motion to Proceed In Forma Pauperis, and dismiss Pullins's Complaint (Doc. No. 1; Complaint). On September 25, 2012, Pullins filed an Amended Complaint (Doc. No. 6; Amended Complaint). The next day, September 26, 2012, Pullins filed a Response to Report and Recommendation (Doc. No. 7; Objection), which this Court construes as Pullins's objection to the Report.
Following the entry of the Report, Plaintiff filed an amended Complaint (Doc. No. 6). Ordinarily, Plaintiff would be allowed to amend an initial complaint once as a matter of course, within twenty-one days after serving it. Fed. R. Civ. P. 15 (a)(1)(A). Here, however, Plaintiff's Amended Complaint does not address the critical defects that Judge Richardson identified in the original Complaint. Plaintiff's Amended Complaint continues to assert claims for damages under § 1983 against the attorneys, private parties, and judge in the underlying state civil case. Judges are immune from damages under a § 1983 action for judicial acts done within the jurisdiction of the court, as was the case in the underlying action. See Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996). Likewise, attorneys representing individuals in a court proceeding and private litigants are not acting under color of law. See Polk Cnty. V. Dodson, 454 U.S. 312, 325 (1981); Eidson v. Arenas, 155 F.R.D. 215, 221 (M.D. Fla. 1994). Because Plaintiff's Amended Complaint presents no additional claims that can be pursued, this action will be dismissed, without prejudice.
Upon independent review of the record, and for the reasons stated in the Magistrate Judge's Report, the Court will overrule the Objection, and accept and adopt the legal and factual conclusions recommended in the Report by Judge Richardson.
Accordingly, it is hereby ORDERED:
1. Plaintiff's Response to Report and Recommendation (Doc. No. 7), which this Court construes as Plaintiff's objection, is OVERRULED.
2. Magistrate Judge Monte C. Richardson's Report and Recommendation (Doc. No. 5) is ADOPTED as the opinion of the Court.
3. Plaintiff's Affidavit of Indigency, which this Court construes as a motion to proceed In forma pauperis, (Doc. No. 2) is DENIED.
4. This case is DISMISSED, without prejudice, and the Clerk of the Court is directed to close the file.
DONE AND ORDERED at Jacksonville, Florida, this 6th day of November, 2012.
___________________
MARCIA MORALES HOWARD
United States District Judge
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