Westley v. Hultman et al

Middle District of Florida, flmd-8:2017-cv-00729

ORDER: The Report and Recommendation (Doc. # {{57}}) is ACCEPTED and ADOPTED.Plaintiff's Objection to the Report and Recommendation (Doc. ## {{58}}, {{59}}) is OVERRULED. Plaintiff's construed Motion for Leave to Proceed on Appeal in forma p auperis (Doc. ## {{54}}, {{55}}) is DENIED. The Court certifies that the appeal is not taken in good faith and directs the Clerk to notify the Court of Appeals of this ruling in accordance with Rule 24(a)(4)(B), Federal Rules of Appellate Procedure. Signed by Judge Virginia M. Hernandez Covington on 7/3/2017. (KAK)

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PageID 275 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN WESTLEY, Plaintiff, v. Case No. 8:17-cv-729-T-33TBM GREGORY N. HULTMAN, ET AL., Defendants. _____________________________/ ORDER This matter is before the Court on consideration of United States Magistrate Judge Thomas B. McCoun's Report and Recommendation (Doc. # 57), filed on June 19, 2017, recommending that Plaintiff's construed Motion for Leave to Proceed on Appeal in forma pauperis (Doc. ## 54, 55) be denied. Plaintiff filed a pro se objection to the Report and Recommendation. (Doc. ## 58, 59). As stated below, the Court adopts the Report and Recommendation of the Magistrate Judge and overrules the filed objection. Discussion 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). In the absence of specific objections, there is no PageID 276 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. S. Ry. Co., 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). The Report and Recommendation thoroughly and thoughtfully addresses the issues presented and, after conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepts the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. The Report and Recommendation thoughtfully addresses the issues presented, and Plaintiff's arguments raised in his objection do not provide a basis for rejecting the Report and Recommendation. Accordingly, it is now ORDERED, ADJUDGED, and DECREED: (1) The Report and Recommendation (Doc. # 57) is ACCEPTED and ADOPTED. -2- PageID 277 (2) Plaintiff's Objection to the Report and Recommendation (Doc. ## 58, 59) is OVERRULED. (3) Plaintiff's construed Motion for Leave to Proceed on Appeal in forma pauperis (Doc. ## 54, 55) is DENIED. (4) The Court certifies that the appeal is not taken in good faith and directs the Clerk to notify the Court of Appeals of this ruling in accordance with Rule 24(a)(4)(B), Federal Rules of Appellate Procedure. DONE and ORDERED in Chambers in Tampa, Florida, this 3rd day of July, 2017. -3-