United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING OBJECTIONS AND ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS
HALIL SULEYMAN OZERDEN, District Judge.
This matter is before the Court on Plaintiff Sylvester Scott Johnson's Objections [37, 38] to Magistrate Judge Robert H. Walker's Proposed Findings of Fact and Recommendations . After thoroughly reviewing the Proposed Findings of Fact and Recommendations, in addition to the position advanced by Plaintiff in his Objections, the Court finds that Plaintiff's Objections should be overruled, and that the Magistrate Judge's Proposed Findings of Fact and Recommendations should be adopted as the finding of the Court.
Pro se Plaintiff Sylvester Scott Johnson filed this lawsuit on March 11, 2013, pursuant to 42 U.S.C. § 1983, against the City of Moss Point, Mississippi, and Moss Point Police Officer Ray Stanton, as well as two other Defendants that have since been dismissed. Jackson County, Mississippi, was added as a Defendant by Order  entered July 3, 2013. Plaintiff represents that on March 14, 2012, he was working off fines imposed by the City of Moss Point when he was instructed by Defendant Officer Stanton, his supervisor, to go onto the roof of an abandoned building to tear off shingles. Pl.'s Compl.  4. According to Plaintiff, he fell through the roof onto the pavement below, sustaining neck and back injuries that remain symptomatic. Id. at 5. Plaintiff claims that Defendants are liable for his injuries because Officer Stanton "did not provide his workers with any safety equipment before putting us on the roof" and did not inspect the roof before requiring him to work on the roof. Id. at 4-5; see Pl.'s Resp. [12, 12-1].
Plaintiff makes no allegation that Defendants required him to work off his fines but states that if he did not do so, he would have had to "go back to jail." Pl.'s Resp. [12-1] 1. Fourteen days prior to suffering his alleged injuries, Plaintiff signed a release and waiver of liability agreement, acknowledging that he voluntarily applied to participate in work activities for the Moss Point Police Department, that he was aware such activities were hazardous, that he could be seriously injured or even killed, and that he agreed to assume the risks of bodily injury, death, or property damage. Release and Waiver [25-1].
On October 1, 2013, Defendants City of Moss Point and Officer Stanton, in his official capacity only, filed a Motion to Dismiss  Plaintiff's suit. On February 12, 2014, Jackson County filed a Motion to Dismiss  Plaintiff's suit. Plaintiff did not file a response to either Motion. On June 13, 2014, the Magistrate Judge ordered Plaintiff to appear for an omnibus screening hearing to be held on July 2, 2014,
1) to determine if dismissal is appropriate under 28 U.S.C. § 1915A(b) or other applicable law; 2) to define the issues to be litigated; 3) to ascertain the potential witnesses or exhibits; 4) to provide appropriate assistance to the pro se litigant in obtaining evidence for trial; and 5) to evaluate the case as appropriate.
The Clerk of Court mailed the Order  Setting Omnibus Hearing on the same date that it was entered to the address Plaintiff provided just three weeks prior in a Notice  of Change of Address. Over the span of about one year and two months, Plaintiff has filed four Notices of Change of Address [4, 19, 31, 34] in this case.
On July 2, 2014, after Plaintiff failed to appear at the omnibus hearing, the Magistrate Judge issued his Proposed Findings of Fact and Recommendations , recommending dismissal of Plaintiff's suit for failure to prosecute. The Magistrate noted that numerous Orders had warned Plaintiff that failure to keep the Court apprised of his current address or to comply with any order of the Court might result in dismissal of this lawsuit. Orders [3, 5, 8, 10, 11, 13, 15]. The Magistrate Judge opined "that Plaintiff ha[d] either wilfully failed to advise the Court of his current address, or that he ha[d] willfully ignored the notice of the July 2, 2014 hearing." Recomms.  1.
On July 14, 2014, Plaintiff filed Objections [37, 38] to the Magistrate Judge's Proposed Findings of Fact and Recommendations, maintaining that he did not receive the Order  Setting Omnibus Hearing because he was in the process of moving and no longer living at his then-address of record, and also on the basis that he has medical issues. Objs.  2. Plaintiff acknowledges that his sister received the Order setting the omnibus hearing but asserts that she did not provide it to him until the day after the hearing. Id. Of note, however, is the fact that the Clerk of Court mailed the Magistrate Judge's Proposed Findings of Fact and Recommendations to the same address the Order setting the omnibus hearing was mailed, and Plaintiff received the Proposed Findings of Fact and Recommendations in sufficient time to file timely Objections on July 14, 2014. In fact, someone at Plaintiff's then-address of record signed for the Proposed Findings of Fact and Recommendations on the day after it was mailed. Ackn. of Receipt . Plaintiff furthermore offers no explanation as to why he did not respond to the two Motions [25, 30] to Dismiss filed by Defendants.
A. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1), if written objections are timely filed to a magistrate judge's proposed findings and recommendations, the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1). In so doing, the Court is not required to reiterate the findings and conclusions of the magistrate judge, Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993), nor need it consider objections ...