The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH GILBERTI, JR.,
Plaintiff,
v. Case No.: 2:23-cv-609-SPC-KCD
DONNA MARIE PADAR, RON
DESANTIS, RYAN SNYDER, 72
PARTNERS LLC, CHRISTOPHER
SHAW, KENNETH HARRISON,
FLORIDA SECOND DISTRICT
COURT OF APPEALS, THE
PENTAGON, FEDERAL BUREAU
OF INVESTIGATION, OFFICE OF
THE STATE ATTORNEY ED
BRODSKY 12TH JUDICIAL
CIRCUIT, OFFICE OF THE
PUBLIC DEFENDER 12TH
JUDICIAL CIRCUIT, 12TH
JUDICIAL CIRCUIT COURT OF
FLORIDA, 13TH JUDICIAL
CIRCUIT COURT OF FLORIDA,
20TH JUDICIAL CIRCUIT
COURT OF FLORIDA, 17TH
JUDICIAL CIRCUIT COURT OF
FLORIDA, US MIDDLE DISTRICT
OF FLORIDA, LEE COUNTY
SCHOOL BOARD, TOM WIDEN,
STEPHEN WALKER, MARK
WOLFE, DOMINGUEZ, CONRAD,
MANATEE COUNTY
COMMISSION, SARASOTA
COUNTY COMMISSION,
ENVIRONMENTAL
PROTECTION AGENCY, US
CONGRESS, US SENATE, PEACE
RIVER MANASOTA WATER
SUPPLY AUTHORITY,
NATIONAL RAILROAD
PASSENGER CORPORATION,
BILL GATES, CANADIAN
NATIONAL RAILWAY
COMPANY, CSX
TRANSPORTATION INC.,
SEMINOLE GULF RAILWAY,
LAURENCE D. FINK and
BLACKROCK INVESTMENT
GROUP, LLC,
Defendants.
/
OPINION AND ORDER
Before the Court is United States Magistrate Judge Kyle C. Dudek’s
Report and Recommendation (“R&R”). (Doc. 9). Judge Dudek recommends
dismissing the Amended Complaint (Doc. 8) because it is frivolous and fails to
state a claim under 28 U.S.C. § 1915(e). Plaintiff Joseph Gilberti has objected
to the R&R. (Doc. 10). After a careful and independent review of the parties’
papers, record, and applicable law, the Court overrules Gilberti’s objections
and denies his Request for Evidentiary Hearing as moot.
A district judge “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). The district judge must “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to
which objection is made.” Id. And legal conclusions are reviewed de novo even
with no objection. Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir.
1994).
Although Gilberti has objected to the R&R, the objections are not
specific, provide no bases for the arguments, and identify no error by Judge
Dudek. The objections make only two non-substantive points: (1) Judge Dudek
should have recused himself, and (2) Gilberti should have the right to an
evidentiary hearing before his case is dismissed. Even liberally construing
these so-called “objections” and reviewing them under a de novo standard, they
are unconvincing.
To start, Gilberti demands Judge Dudek’s recusal because years ago he
worked at the same law firm as another lawyer named Luis Rivera. But it is
unclear what connection, if any, Mr. Rivera has to this case. He is neither an
attorney of record nor a party. As best the Court can tell, Gilberti has
encountered Mr. Rivera in other suits that he has filed.1 So Gilberti does not
object to the R&R’s proposed findings or recommendations, but to Judge Dudek
himself. And without more information, Gilberti has provided no persuasive
reason why Judge Dudek should have recused.
1 Gilberti alleges that Mr. Rivera works “at law firms attacking Plaintiff as far back as 2006,
and again in 2013-2023 with Henderson Franklin, Gray Robinson of Water Forum,
Greenberg Traurig, Ron Desantis, FDEP and FDLE bureaucrats loafing off Peace River and
ACOE lawsuits with Mosaic mining, that trigger trillions in Healthcare cases and cost by
sustaining a massive POOR LEVEL OF SERVICE in Water Supply by purposely hiding these
secret underground rivers.” (Doc. 10 at 2).
Next, Gilberti argues this case cannot be dismissed for lack of standing
without an evidentiary hearing. But standing is not at issue. The R&R
recommends dismissal (not on standing) from an in forma pauperis screening
under 28 U.S.C. § 1915(e)(2)(B). The R&R finds—and this undersigned agrees
with well-reasoned and sound factual and legal analysis—that the Amended
Complaint is frivolous, fails to show jurisdiction, is a shotgun pleading, and
improperly states precluded claims. So the Amended Complaint must be
dismissed without leave to amend under § 1915(e)(2)(B), and Gilberti’s request
for an evidentiary hearing is moot.
Accordingly, it is now
ORDERED:
1. United States Magistrate Judge Kyle C. Dudek’s Report and
Recommendation (Doc. 9) is ACCEPTED and ADOPTED, and the
findings incorporated.
2. Plaintiff Joseph Gilberti’s Objection (Doc. 10) is OVERRULED.
3. The Amended Complaint (Doc. 8) is DISMISSED as frivolous and
with no leave to amend.
4. Plaintiff’s request for an evidentiary hearing (Doc. 8) is DENIED as
moot.
5. The Clerk is DIRECTED to terminate any deadlines and close the
case.
DONE and ORDERED in Fort Myers, Florida on January 19, 2024.
,
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record