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Johnson v. City of Gulfport

United States District Court, S.D. Mississippi, Southern Division

August 25, 2017

ROBERT P. JOHNSON, III PLAINTIFF
v.
CITY OF GULFPORT; HARRISON COUNTY, MISSISSIPPI; TROY PETERSON, Sheriff of Harrison County; EVAN HUBBARD; and WAYNE PAYNE, II DEFENDANTS

         ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [44], GRANTING DEFENDANT CITY OF GULFPORT'S MOTION [31] TO DISMISS OR FOR SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the Report and Recommendation [44] of United States Magistrate Judge John C. Gargiulo, entered in this case on August 3, 2017. The Magistrate Judge recommended that this case be dismissed without prejudice for failure to prosecute. R. & R. [44] at 1. The Magistrate Judge further recommended that Defendant City of Gulfport's Motion [31] to Dismiss or for Summary Judgment be granted and that summary judgment be entered in favor of Defendant because Plaintiff has not demonstrated a basis for municipal liability under 42 U.S.C. § 1983. Id.

         Plaintiff Robert Johnson, III (“Plaintiff”) has not filed any objection to the Report and Recommendation [44], and the time for doing so has passed. Where a party fails to file specific objections, the district court reviews the report and recommendations for findings and conclusions that are clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). After thoroughly reviewing the Magistrate Judge's Report and Recommendation [44], the pending Motion [31], the record, and relevant legal authority, the Court finds that the Magistrate Judge's Report and Recommendation [44] is neither clearly erroneous nor contrary to law, and should be adopted as the finding of this Court. Defendant City of Gulfport's Motion [31] to Dismiss or for Summary Judgment should also be granted, and this case should be dismissed without prejudice.

         I. FACTS AND PROCEDURAL HISTORY

         Proceeding pro se, Johnson initiated this action pursuant to 42 U.S.C. § 1983 on April 27, 2016, naming the Gulfport Police Department as a Defendant. At the time, Plaintiff was housed at the Harrison County Adult Detention Center (“HCADC”) in Gulfport, Mississippi, following his January 21, 2016, arrest for malicious mischief and resisting arrest. See Compl. [1] at 1; Resp. to Order [7] at 1. Plaintiff alleged that his constitutional rights were violated when Gulfport Police Department K-9 officer Sgt. Wayne Payne (“Sgt. Payne”) released a canine during the arrest, resulting in wounds to both of Plaintiff's arms. Compl. [1] at 4; Resp. to Order [7] at 1. Plaintiff alleges that he received improper medical care, that he developed a staph infection, that he is disfigured and has lost motor skills in his hands, and that both arms now require surgery. See Compl. [1] at 4; Resp. to Order [7] at 1; Resp. to Order [9] at 1.

         On June 28, 2016, the Court issued an Order [10] replacing the Gulfport Police Department with the proper Defendant, the City of Gulfport (“the City”). On August 3, 2016, Plaintiff amended his Complaint [1] to assert claims against Harrison County, Mississippi; Troy Peterson, Sheriff of Harrison County; Major Evan Hubbard, Warden of HCADC; and Sgt. Payne, seeking to hold Defendants liable for failure to train, excessive force, unsanitary living conditions, overcrowding, and inadequate medical care at HCADC. See Resp. to Order [13] at 1-2.

         The City filed its Motion [31] to Dismiss or for Summary Judgment on November 2, 2016, arguing that Plaintiff has failed to state a claim for relief against it because he has not satisfied his burden of showing that the alleged constitutional violations occurred pursuant to an official policy or custom of the City. Mem. Supp. Mot. [32] at 2-3. Plaintiff did not file a response to the Motion [31]. On April 7, 2017, the Court issued an Order to Show Cause [34] directing Plaintiff to file a response to the City's Motion [31] by April 28, 2017. The Order to Show Cause [34] was mailed to Plaintiff at East Mississippi Correctional Facility (“EMCF”), the most recent address on file with the Court, but was returned as undeliverable. See Returned Mail [36].

         The Court then scheduled an omnibus hearing for June 28, 2017, and issued a Writ of Habeas Corpus ad Testificandum to the Warden at EMCF to produce Plaintiff for the hearing. See Order Setting Omnibus Hearing [37]; Writ of Habeas Corpus ad Testificandum [38]. The Court received an email from EMCF on June 22, 2017, advising that Plaintiff was no longer housed at EMCF, but had been released with probation to Harrison County. R. & R. [44] at 3. Plaintiff did not appear at the omnibus hearing. Id.; Minute Entry June 28, 2017. The Court issued an Order to Show Cause [40] requiring Plaintiff to file a response by July 12, 2017, showing why this case should not be dismissed for failure to prosecute after Plaintiff failed to appear at the omnibus hearing and did not abide by the numerous Orders of the Court requiring him to keep the Court apprised of his address and further failed to respond to the City's Motion [31]. The Order [40] was mailed to Plaintiff at EMCF, his last known address, but was again returned as undeliverable by the correctional facility. See Returned Mail [42]. Plaintiff did not respond to the Order to Show Cause [40].

         As a result of Plaintiff's failure to keep the Court apprised of his current address, his failure to appear at the omnibus hearing, and his failure to respond to Court Orders, on August 3, 2017, the Magistrate Judge entered a Report and Recommendation [44] that Plaintiff's case be dismissed for failure to prosecute. R. & R. [44] at 1. The Magistrate Judge further recommended that Defendant City of Gulfport be granted summary judgment because Plaintiff's claims that the City “is responsible for its police department and also responsible for it[s] jail” are based on impermissible theories of respondeat superior and vicarious liability. Id. at 8 (quoting Resp. to Order [7] at 1). The Magistrate Judge determined that, even if Plaintiff could establish that his constitutional rights were violated, his § 1983 claims against the City are subject to dismissal because he has not shown that any such constitutional violations were caused by the existence of a municipal policy or custom. Id.

         The docket indicates that a copy of the Report and Recommendation [44] was sent to EMCF via certified mail on August 3, 2017, and an acknowledgement of receipt was returned on August 9, 2017, signed for by someone at EMCF other than Plaintiff on August 7, 2017. See Acknowledgment of Receipt [45]. To date, Plaintiff has submitted no written objections nor has he updated his address with the Court.

         II. DISCUSSION

         A. Standard of Review

         Where no party has objected to a magistrate judge's proposed findings of fact and recommendations, the Court need not conduct a de novo review of the proposed findings of fact and recommendations. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made.”). In such cases, the Court need only review the proposed findings of fact and recommendation ...


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