McCarthy v. St. Lucie County Board of Commissioners

• Court: District Court, S.D. Florida
• Decided: March 27, 2023
• Docket: 2:22-cv-14350
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT PIERCE DIVISION

CASE NO. 22-14350-CIV-CANNON/McCabe JOHN C. MCCARTHY,

Plaintiff, v.

ST. LUCIE COUNTY BOARD OF COMMISSIONERS and LASHERI BAKER,

Defendants. _______________________________/ ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [ECF No. 10]

THIS CAUSE comes before the Court upon the Magistrate Judge’s Report and Recommendation on Defendants’ Motion to Dismiss Plaintiff’s Complaint (the “Report”) [ECF No. 10], filed on February 10, 2023. On December 1, 2022, Defendants filed a Motion to Dismiss Plaintiff’s Complaint (the “Motion”) [ECF No. 6]. On February 10, 2023, following referral, Judge McCabe issued a Report recommending that the Motion be granted [ECF No. 10 pp. 1, 12]. Objections to the Report were due on February 24, 2023 [ECF No. 10 p. 13]. No party filed objections, and the time to do so has expired [ECF No. 10 p. 13]. To challenge the findings and recommendations of a magistrate judge, a party must file specific written objections identifying the portions of the proposed findings and recommendation to which objection is made. See Fed. R. Civ. P. 72(b)(3); Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989); Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). A district court reviews de novo those portions of the report to which objection is made and 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)(1). To the extent a party fails to object to parts of the magistrate judge’s report, CASE NO. 22-14350-CIV-CANNON/McCabe

the Court may accept the recommendation so long as there is no clear error on the face of the record. Macort, 208 F. App’x at 784. Legal conclusions are reviewed de novo, even in the absence of an objection. See LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010); Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). Following review of the unobjected-to Report, it is hereby ORDERED AND ADJUDGED as follows: 1. The Report and Recommendation [ECF No. 10] is ACCEPTED. 2. The Motion [ECF No. 6] is GRANTED. 3. Plaintiff will have one final opportunity to file an Amended Complaint that is consistent with the Report [ECF No. 10], but any such Amended Complaint must be filed on or before April 10, 2023, as a separate docket entry on the docket .' Plaintiff is reminded that the filing of an Amended Complaint supersedes and replaces the original complaint. See Reynolds v. Behrman Cap. IV L.P., 988 F.3d 1314, 1319 (11th Cir.), cert. denied, 142 S. Ct. 239 (2021). DONE AND ORDERED in Chambers at Fort Pierce, Florida this 27th day of March 2023.

AILEE Z UNITED STATES DISTRICT JUDGE ce: counsel of record

' Following issuance of Judge McCabe’s Report, and prior to the Court’s resolution of the Report, Plaintiff filed an unauthorized Amended Complaint [ECF No. 11]; the Court therefore struck Plaintiff's Amended Complaint [ECF No. 12].