Opinion
Case No. 3:10-cv-918-J-34 TEM.
February 4, 2011
ORDER
THIS CAUSE is before the Court on the Report and Recommendation (Dkt. No. 5; Report), entered by the Honorable Thomas E. Morris, United States Magistrate Judge, on December 28, 2010. In the Report, Magistrate Judge Morris recommends that Plaintiff's Affidavit of Indigency (Dkt. No. 2; Affidavit of Indigency), which is construed as a motion to proceed in forma pauperis, be denied without prejudice, and the Complaint (Dkt. No. 1; Complaint) be dismissed without prejudice, with leave to file an amended complaint. See Report at 5. Plaintiff has failed to file objections to the Report, and the time for doing so has now passed.
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Rule 72(b), Federal Rules of Civil Procedure (Rule(s)), advisory committee's note (1983); see also Macort v. Prem, Inc., 208 Fed. Appx. 781, 784-85 (11th Cir. 2006) (per curiam). Therefore, if no specific objections to findings of facts are filed, the district court is not required to conduct a de novo review of those findings. See Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993). However, the district court must review the legal conclusions in the report de novo. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States v. Rice, No. 2:07-mc-8-FtM-29 SPC, 2007 WL 1428615, at *1 (M.D. Fla. May 14, 2007); see also 28 U.S.C. § 636(b)(1).
Based upon an independent examination of the record and a de novo review of the legal conclusions, the Court will adopt, in part, and reject, in part, the Report of the Magistrate Judge. The Court is not inclined to deny Plaintiff's Affidavit of Indigency without prejudice and to dismiss the Complaint without prejudice at this time. The undersigned is of the view that the more prudent course of action, as a general rule, is to permit the plaintiff an opportunity to amend before making such a determination. Accordingly, the Court will adopt the portion of the Report that recommends that Plaintiff be permitted an opportunity to amend his Complaint. However, the Court will reject the portion of the Report that recommends that the Affidavit of Indigency be denied without prejudice and the Complaint be dismissed without prejudice. The current Complaint will remain as filed, the Court will take the Affidavit of Indigency under advisement, and Plaintiff will be permitted an opportunity to amend his Complaint. Should Plaintiff fail to do so in the time permitted, the Court will not hesitate to accept a recommendation that his request to proceed as a pauper be denied and this action be dismissed without prejudice for failure to prosecute.
In light of the foregoing, it is
ORDERED:
1. The Magistrate Judge's Report and Recommendation (Dkt. No. 5) is ADOPTED, in part, and REJECTED, in part.
a. The Report is ADOPTED to the extent it recommends that Plaintiff be permitted an opportunity to amend his Complaint.
b. The Report is REJECTED to the extent it recommends that the Affidavit of Indigency be denied without prejudice and the Complaint be dismissed without prejudice.
2. Plaintiff's Affidavit of Indigency (Dkt. No. 2), which the Court construes as a motion to proceed in forma pauperis, is TAKEN UNDER ADVISEMENT.
3. Plaintiff shall have up to and including March 4, 2011, to file an amended complaint consistent with the directives set forth in the Report and Recommendation. Plaintiff is cautioned that failure to file an amended complaint will result in dismissal of this action.
DONE AND ORDERED at Jacksonville, Florida, this 4th day of February, 2011.