Dunn-Fischer v. District School Board of Collier County et al, No. 2:2010cv00512 - Document 82 (M.D. Fla. 2011)

Court Description: OPINION AND ORDER granting in part and denying in part 66 Motion to dismiss; granting 69 Motion to dismiss; adopting and incorporating 76 Report and Recommendations. The Clerk shall enter judgment dismissing defendants Florida Department of Ed ucation and Florida Division of Administrative Hearings with prejudice. The Clerk shall withhold the entry of judgment as to the remaining defendants dismissed without prejudice (defendants Laurence Ruble, Brian Castellani, Dr. Victoria Sartortio, a nd Dr. Elizabeth McBride) but terminate them on the docket. See Opinion and Order for details. The stay is lifted and the Magistrate Judge shall enter a second amended Case Management and Scheduling. Signed by Judge John E. Steele on 10/5/2011. (RKR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION TERRY L. DUNN-FISCHER, individually, and the parent and next friend of A.D.F., a minor, Plaintiff, vs. Case No. 2:10-cv-512-FtM-29SPC DISTRICT SCHOOL BOARD OF COLLIER COUNTY, DR. VICTORIA SARTORIO, individually, DR. ELIZABETH MCBRIDE, individually, FLORIDA DEPARTMENT OF EDUCATION, LAURENCE RUBLE, individually, BRIAN CASTELLANI, individually, FLORIDA DEPARTMENT OF ADMINISTRATIVE HEARINGS, Defendants. ___________________________________ OPINION AND ORDER On August 20, 2011, United States Magistrate Judge Sheri Polster Chappell submitted a Report and Recommendation (Doc. #76) to the Court recommending that two motions to dismiss be granted or granted in part. Despite notice of the time limitation to file objections, none have been filed, and the time to file such objections has expired. 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); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations 636(b)(1)(C). to which objection is made. 28 U.S.C. § See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). This requires that the district judge give fresh consideration to those issues to which specific objection has been made by a party. Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews conclusions de novo, even in the absence of an objection. legal See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). A district court may not reject the credibility determinations of a magistrate judge without personally rehearing disputed testimony from the witness. Powell, 628 F.3d at 1256-58. After reviewing the Report and Recommendation and the court file, with the one minor exception noted below, the Court fully agrees with the findings of fact1 and conclusions of law made by the magistrate judge. Accordingly, the Court will adopt the Report and Recommendation. Accordingly, it is now ORDERED: 1 The Report and Recommendation refers to the time period that Plaintiff was a student (Doc. #76, p. 14), when it was plaintiff s child who was the student. -2- 1. The Magistrate Judge s Report and Recommendation (Doc. # 76) is accepted and adopted, and it is specifically incorporated into this Opinion and Order. 2. Defendants District School Board of Collier County, Laurence Ruble, Brian Castellani, Dr. Victoria Sartortio, and Dr. Elizabeth McBride Motion to Dismiss Plaintiff s Second Amended Complaint (Doc. #66) is GRANTED IN PART AND DENIED IN PART as follows: (A) Brian The motion is granted as to defendants Laurence Ruble, Castellani, Dr. Victoria Sartortio, and Dr. Elizabeth McBride, and all claims against these defendants are dismissed without prejudice. (B) Collier The motion is granted as to all claims against the County School Board except plaintiff s claim for reimbursement under the IDEA, and those claims are dismissed. The motion is denied as to plaintiff s claim for reimbursement under the IDEA against the Collier County School Board. 3. Defendants Florida Department of Education and Florida Division of Administrative Hearings Motion to Dismiss Second Amended Complaint (Doc. #69) is GRANTED, and all claims against these defendants are dismissed with prejudice. 4. Florida The Clerk shall enter judgment dismissing defendants Department of Education and Administrative Hearings with prejudice. -3- Florida Division of The Clerk shall withhold the entry of judgment as to the remaining defendants dismissed without prejudice (defendants Laurence Ruble, Brian Castellani, Dr. Victoria Sartortio, and Dr. Elizabeth McBride) but terminate them on the docket. 5. Defendant Collier County School Board shall file a complete certified copy of the administrative record with the Clerk of the Court within THIRTY (30) DAYS of the date of this Opinion and Order. 6. The stay on discovery is lifted, and the Magistrate Judge shall enter a second amended Case Management and Scheduling Order in light of the current posture of the case. DONE AND ORDERED at Fort Myers, Florida, this October, 2011. Copies: U.S. Magistrate Judge Parties of Record Counsel of record -4- 5th day of

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