Evans v. Pope

Full title: JUAN F. EVANS, Plaintiff, v. PATRICK POPE, et al., Defendants

Court: United States District Court, N.D. Florida, Pensacola Division

Date published: Jan 8, 2008

Case No. 3:07cv302/LAC (N.D. Fla. Jan. 8, 2008)

Opinion

Case No. 3:07cv302/LAC.

January 8, 2008

ORDER

LACEY COLLIER, District Judge

Before the Court is Plaintiff's Motion and Affidavit for Relief from Judgment (doc. 20) in which he seeks review of the Court's October 22, 2007, Order adopting the Report and Recommendation of the Magistrate Judge and dismissing this case.

As an initial matter, Plaintiff also filed an Objection to Treatment of Post Judgment Motion (doc. 25) stating that the Clerk erroneously docketed his motion as a Motion for Reconsideration. Plaintiff correctly states that, since the motion was filed more than ten days after the entry of judgment, it should be treated as a Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60(b). See Finch v. City of Vernon, 845 F.2d 256, 258-259 (11th Cir. 1988). The Court agrees and will treat Plaintiff's motion as such. Since an appeal has been filed in this case, the Court may deny the motion but cannot directly grant it unless and until the Eleventh Circuit remands the matter to the Court for that purpose. See Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003).

Plaintiff asserts in the motion that the Court should not have adopted the Report and Recommendation because it was based in part on the fact that the Magistrate Judge denied Plaintiff's Motion to Proceed In Forma Pauperis. It has been held that a magistrate judge is without authority to deny such a motion because it acts as the "functional equivalent of involuntary dismissal." Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990). Even if this were true, however, in the instant case, after the denial of the in forma pauperis motion, the Magistrate Judge then submitted to the Court a Report and Recommendation to dismiss because of Plaintiff's failure to pay the filing fee. This provided Plaintiff with the opportunity, of which he took full advantage, to object to the denial of in forma pauperis status both on the merits and on the basis of his assertion that the Magistrate Judge lacked authority. Thus, any issue of jurisdiction or of magistrate authority was cured by the fact that the Court took final review of the matter and adopted the Report and Recommendation as its own. See Allison v. Askins, 45 Fed.Appx. 319, 2002 WL 1860389 (5th Cir. 2002).

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiff's Motion and Affidavit for Relief from Judgment (doc. 20) is DENIED.

ORDERED.