XARAGUA EL
v.
BRAEM
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The court held that the plaintiff's motion to appeal the dismissal order is denied because it is procedurally deficient and untimely.
The plaintiff's complaint was dismissed for failure to pay the filing fee. The plaintiff then filed a motion to appeal this dismissal. The Magistrate …
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Plaintiff moved to appeal the Court’s order dismissing his complaint without prejudice for failure to pay the filing fee. (Doc. 12.) The Magistrate Judge recommends denying Plaintiffs motion. (Doc. 13.) The fourteen-day deadline for Plaintiff to object to the Report and Recommendation has passed (with an additional three-days permitted for mailing), and he has not objected in any meaningful way. (See Doc. 14, Affidavit of Fact (arguing that he
never sought permission to proceed in forma pauperis and the Report “is null and void ab initio”).) Nevertheless, the Court reviews the Magistrate Judge’s legal conclusions de novo. See Cooper-Houston v. S. Ry. Co., 37 F. 3d 603, 604 (11th Cir. 1994); Ashworth v. Glades Cnty. Bd. of Cnty. Comm'rs, 379 F. Supp. 3d 1244, 1246 (M.D. Fla. 2019) (Steele, J.).
The Plaintiffs motion is due to be denied for the reasons stated in the Magistrate Judge’s recommendation. (Doc. 13.) First, the motion is deficient because it fails to claim an entitlement to redress or state issues that Plaintiff intends to pursue on appeal. See Fed. R. App. Proc.
24.
Second, Plaintiff's Notice of Appeal is untimely because it was filed nearly four months after this Court entered judgment. See Fed. R. App. Proc. 4(a)(1)(A) (a notice of appeal must “be filed with the district clerk within 30 days after the judgment or order appealed from is entered”).
Accordingly, the following is ORDERED: 1. The Magistrate Judge’s Report and Recommendation (Doc. 13) is ADOPTED and made a part of this Order for all purposes.
2. Plaintiffs Motion to Appeal In Forma Pauperis (Doc. 12) is DENIED.
3. In accordance with Federal Rule of Appellate Procedure 24(a)(4)(A), the Clerk is directed to notify the Eleventh Circuit that the motion to proceed in forma pauperis has been denied. ORDERED in Tampa, Florida, on June 7, 2022.
fatten Kimball Mill athryn’ Kimball Mizelle United States District Judge
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Marina Cooper-Houston v. S. Ry. Co., 37 F.3d 603 (11th Cir. 1994)
- Ashworth v. Glades Cnty. Bd. of Cnty. Comm'rs, 379 F. Supp. 3d 1244 (M.D. Fla. 2019)