United States District Court, S.D. Mississippi, Southern Division
ROBERT P. JOHNSON, III PLAINTIFF
CITY OF GULFPORT; HARRISON COUNTY, MISSISSIPPI; TROY PETERSON, Sheriff of Harrison County; EVAN HUBBARD; and WAYNE PAYNE, II DEFENDANTS
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, GRANTING DEFENDANT CITY OF GULFPORT'S MOTION 
TO DISMISS OR FOR SUMMARY JUDGMENT, AND DISMISSING
PLAINTIFF'S CLAIMS WITHOUT PREJUDICE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Report and Recommendation  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.  at 1. The Magistrate Judge
further recommended that Defendant City of Gulfport's
Motion  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.
Robert Johnson, III (“Plaintiff”) has not filed
any objection to the Report and Recommendation , 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 , the pending Motion , the record, and
relevant legal authority, the Court finds that the Magistrate
Judge's Report and Recommendation  is neither clearly
erroneous nor contrary to law, and should be adopted as the
finding of this Court. Defendant City of Gulfport's
Motion  to Dismiss or for Summary Judgment should also be
granted, and this case should be dismissed without prejudice.
FACTS AND PROCEDURAL HISTORY
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.  at 1; Resp. to Order  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.  at 4; Resp. to Order  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.  at 4; Resp. to
Order  at 1; Resp. to Order  at 1.
28, 2016, the Court issued an Order  replacing the
Gulfport Police Department with the proper Defendant, the
City of Gulfport (“the City”). On August 3, 2016,
Plaintiff amended his Complaint  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  at 1-2.
City filed its Motion  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.  at 2-3.
Plaintiff did not file a response to the Motion . On
April 7, 2017, the Court issued an Order to Show Cause 
directing Plaintiff to file a response to the City's
Motion  by April 28, 2017. The Order to Show Cause 
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 .
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 ; Writ of
Habeas Corpus ad Testificandum . 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.  at 3.
Plaintiff did not appear at the omnibus hearing.
Id.; Minute Entry June 28, 2017. The Court issued an
Order to Show Cause  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 . The Order  was mailed to
Plaintiff at EMCF, his last known address, but was again
returned as undeliverable by the correctional facility.
See Returned Mail . Plaintiff did not respond to
the Order to Show Cause .
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  that Plaintiff's case be dismissed
for failure to prosecute. R. & R.  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  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.
docket indicates that a copy of the Report and Recommendation
 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 .
To date, Plaintiff has submitted no written objections nor
has he updated his address with the Court.
Standard of Review
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