Summary
indicating that a court can consider "income from Social Security and other disability benefits" when determining whether the movant is a pauper
Summary of this case from United States v. MuhlemanOpinion
Case No. 2:08-cv-417-FtM-99DNF.
September 30, 2008
OPINION AND ORDER
This matter is before the Court on consideration of the Magistrate Judge's Amended Report and Recommendation (Doc. #35), filed September 22, 2008, recommending that plaintiff's Affidavit of Indigency, construed as a Motion for Leave to Proceed In Forma Pauperis (Doc. #2) be denied and the case be dismissed. On September 29, 2008, plaintiff filed a Response (Doc. #36) objecting to the Amended Report and Recommendation.
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); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). 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). 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. 28 U.S.C. § 636(b)(1)(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).
On May 29, 2008, the Magistrate Judge issued a Report and Recommendation (Doc. #4) recommending that the Motion to Proceed In Forma Pauperis (Doc. #1) be denied and plaintiff be required to pay the filing fee. On July 17, 2008, the Honorable Marcia Morales Howard recommitted the case for further consideration of the sufficiency of plaintiff's Complaint and for the entry of a supplemental report and recommendation. (Doc. #25.) Upon recommittal, the Magistrate Judge directed plaintiff to file a new Affidavit of Indigency and an Amended Complaint. (Doc. #26.) The Amended Complaint (Doc. #31) was filed on September 10, 2008, and reviewed. After conducting an independent examination of the file and upon due consideration of the Amended Report and Recommendation and objection by plaintiff thereto, the Court accepts the Report and Recommendation and Amended Report and Recommendation of the magistrate judge and overrules the objection.
Accordingly, it is now
ORDERED:
1. The Report and Recommendation (Doc. #2) recommending that plaintiff did not qualify as indigent is adopted and the findings of the Amended Report and Recommendation (Doc. #35) is adopted and incorporated herein.
2. Plaintiff's Affidavit of Indigency, construed as a Motion for Leave to Proceed In Forma Pauperis (Doc. #2) is DENIED and the case is dismissed.
3. The Clerk shall enter judgment dismissing the case, terminate all pending matters, and close the case.
DONE AND ORDERED at Fort Myers, Florida.