Opinion
4:08-cv-174.
April 12, 2011
ORDER
On March 22, 2011, the Magistrate Judge issued his Report and Recommendation ("R R") in this case. See Doc. 125. Objections to the R R were due to be filed on or before April 5, 2011. See Doc. 127.
On April 11, 2011, the Court received two motions from Plaintiff: (1) "Motion for Reconsideration of Magistrates [sic] Report and Recommendation," see Doc. 129, and (2) Motion for Extension of Time for Court to Allow His Motion for Reconsideration of Magistrates [sic] Report Recommendation Be [sic] Accepted as Timely," see Doc. 130. Plaintiff dated his first motion on April 5, 2011, see Doc. 129 at 4, and his second motion a day later on April 6, 2011, see Doc. 130 at 3.
Although Plaintiff filed his first motion as a request for reconsideration, it is clear that he intended it to serve as his objections to the R R. The Court construes it as such.
The Court construes Plaintiff's second motion as a motion for an extension of time in which to file his objections. See Doc. 130. But under the prisoner mailbox rule, Plaintiff's objections were timely. See United States v. Carter, 2011 WL 216138, at *1 (11th Cir. Jan. 25, 2011) (holding that pro se prisoners' filings are filed when delivered to prison authorities for mailing). Therefore, Doye's second motion, see Doc. 130, is MOOT.
After a careful de novo review of the record in this case, and consideration of Plaintiff's objections, see Doc. 129, the Court concurs with the Magistrate Judge's Report and Recommendation ("R R"). See Doc. 125.
Accordingly, the R R is adopted as the opinion of the Court. Defendants' Motion for Summary Judgment, see Doc. 111, is GRANTED as to Defendant Franks and DENIED as to all other defendants.
The R R notes that Plaintiff paid the filing fee and is not proceeding pro se. See Doc. 125 at 17. The Court rejects this portion of the R R and finds that Plaintiff is proceeding in forma pauperis and pro se. See Doc. 1 ( pro se complaint); Doc. 3 (order granting in forma pauperis status).
The Magistrate Judge ordered Plaintiff to show cause within fourteen (14) days of service of the R R why the Court should not dismiss Sheriff Martin because of Plaintiff's failure to timely serve him. See Doc. 125 at 17-18. Despite his two post-R R filings, Plaintiff has failed to respond. Sheriff Martin is DISMISSED from this case.