United States District Court, S.D. Mississippi, Northern Division
J. C. RAMSEY, JR
MARRIAL LEE, ET AL
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE, ETC.
KEITH STARRETT, District Judge.
This cause is before the Court on Plaintiff's Motion for Default Judgment , Plaintiff's Ore Tenus Motion to Dismiss and sua sponte for case management purposes and evaluating whether Plaintiff's claims should be dismissed under 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim, the Report and Recommendation of Magistrate Judge Michael T. Parker , and the Objections to the Report and Recommendation  and , and the Court after considering the above, and the record in this case does hereby find as follows:
I. PROCEDURAL HISTORY
This lawsuit arises from events which took place while Plaintiff was a post-conviction inmate at the Issaquena County Correctional Facility. Plaintiff's claims and relief sought were clarified and amended by his sworn testimony at the Spears  hearing.
Plaintiff claims that on June 24, 2013, he and other inmates were moved from "A-Zone" to the "county side" of Issaquena County Correctional facility so that A-Zone could undergo painting and maintenance. On July 2, 2013, prison officials began moving inmates back to A-Zone. Plaintiff alleges that as he was walking to a waiting cell, he dropped a reading book which had been tied up in a bed sheet, and Merrial Lee would not allow him to retrieve the book. After Plaintiff entered the waiting cell, Lee and Lorretta Robinson allegedly searched Plaintiff's bed sheet and confiscated two legal books, portions of his trial transcript, seven pages of a brief he was preparing in a civil rights action against prison officials, and a book of stamps. Plaintiff alleges that Lee and Robinson also confiscated other inmates' property, including books. According to Plaintiff, his property was not returned.
Thereafter, Robinson escorted Plaintiff to A-Zone. Plaintiff alleges that he told Robinson that it was wrong to confiscate his legal materials, and Robinson replied "that's what you get around here for trying to write these officers up; that's why you're never getting out of prison." According to Plaintiff, Robinson's actions were in response to a grievance filed by Plaintiff. Plaintiff alleges that the grievance concerned the fact that prison officials found him guilty of a rule violation and determined that his punishment should be a reduction of ninety days of earned time credit. According to Plaintiff, prison officials could not take earned time from him because he was given a mandatory sentence and is not eligible to earn time credit.
Plaintiff alleges that as a result of Defendants' actions, he lost an appeal of his underlying felony conviction and became "stressed out" as a result of Defendant's actions. Plaintiff seeks $50, 000 in compensatory damages and $50, 000 in punitive damages.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is "entitled to a de novo review by an Article III Judge as to those issues to which an objection is made.") Such review means that this Court will examine the entire record and will make an independent assessment of the law. The Court is not required, however, 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 that are frivolous, conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER'S OBJECTIONS AND ANALYSIS
Petitioner files no objection to the voluntary dismissal of Defendant Merrial Lee or of the
Defendant Robert Taylor pursuant to Fed.R.Civ.P. 4(m). Therefore, Defendants Merrial Lee and Robert Taylor should be dismissed without prejudice.
Plaintiff does object to the dismissal of Lorretta Robinson and his objections are as follows:
Plaintiff's first objection deals with his claim that there is a genuine issue of material fact as to the issue of deprivation of property. As stated above, Plaintiff claims that Ms. Robinson took two legal books and a portion of a brief from him and that she did this purposely or intentionally. He states that this was an illegal confiscation. In the Report and Recommendation Judge Parker addresses the issue of the default judgment requested by Plaintiff against Ms. Robinson. A default judgment is not automatic even where the defendant is technically in default as Ms. Robinson is. The Court may conduct a hearing and investigate the matter as Judge Parker did. The Report and Recommendation found that the Plaintiff's claim should be dismissed ...