TOBIN v. FLORIDA DEPARTMENT OF CORRECTIONS

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

MATTHEW A. TOBIN,

Plaintiff,

v. Case No. 3:24cv356-MCR-HTC

FLORIDA DEPARTMENT OF CORRECTIONS, et al.,

Defendants. _____________________________/ ORDER The Magistrate Judge issued a Report and Recommendation dated November 5, 2024 (ECF No. 39). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo determination of all timely filed objections. Having considered the Report and Recommendation, and any objections thereto timely filed, I have determined that the Report and Recommendation should be adopted. The Court agrees with the Magistrate Judge that Tobin’s premature notices of appeal to the Eleventh Circuit (ECF Docs. 28, 29, 35, and 41) challenge non-final orders and do not divest this Court of jurisdiction to adopt the Report and Recommendation. See United States v. Riolo, 398 F. App’x 568, 571 (11th Cir. 2010) (“[A] notice of appeal filed with respect to a non-appealable order does not have any effect on the district court's jurisdiction.”) (citing United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir.1979) (en banc), superseded by statute on

other grounds as recognized in United States v. Martinez, 763 F.2d 1297, 1308, n. 11 (11th Cir.1985)); see also Perez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273 (11th Cir. 1998) (stating a report and recommendation that has not yet

been adopted by the district court is not final and appealable). Additionally, the Court construes and considers Plaintiff’s “Notice of Appeal” (ECF No. 50) as an objection to the November 5, 2024, Order entered by Magistrate Judge Hope T. Cannon, ECF No. 38. Finding no part of the order “clearly erroneous

or contrary to law,” Fed. R. Civ. P. 72(a), the objection is overruled. Accordingly, it is now ORDERED as follows: 1. The Magistrate Judge’s Report and Recommendation (ECF Doc. 39) is

adopted and incorporated by reference in this order. 2. This case is DISMISSED WITHOUT PREJUDICE as an impermissible shotgun pleading, which fails to state a claim for relief, and for failure to follow court orders.

3. Plaintiff’s Notice of Appeal to the Eleventh Circuit (ECF No. 50) is DENIED as premature as to the Magistrate Judge’s Report and Recommendation (ECF No. 39), and, construed as an objection, is OVERRULED as to the November

5, 2024 Order (ECF No. 38). 4. Plaintiff’s Motion for Redress of Access to the Courts (ECF no. 49) is DENIED as moot.

5. The Clerk is directed to close the file. DONE AND ORDERED this 13th day of December 2024. M. Casey Rodgers

M. CASEY RODGERS UNITED STATES DISTRICT JUDGE