United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
M. BROWN UNITED STATES DISTRICT JUDGE
civil rights action is before the Court on the Report and
Recommendation of United States Magistrate Judge David A.
Sanders recommending that the case be dismissed. Doc. #81.
filed his complaint on or about June 26, 2014, naming as
defendants Sheriff Kevin Williams, Ora Starks, Gerald Wesley,
Jr., Captain Green, Captain King, Investigator Grisham, and
Corrections Officer Haywood. Doc. #1. On July 15, 2014,
Hollingsworth was granted in forma pauperis status. Doc. #6.
Hollingsworth appeared before United States Magistrate Judge
David A. Sanders on September 19, 2014, for a hearing
pursuant to Spears v. McCotter, 766 F.2d 179 (5th
Cir. 1985). Doc. #13.
September 26, 2014, after the Spears hearing, Judge
Sanders issued a Report and Recommendation recommending that
the claims against all defendants be dismissed, except for
the failure-to-protect claim against Corrections Officer
Haywood based on Haywood's delay in intervening during an
attack on Hollingsworth by other inmates. Doc. #15. The Court
adopted the Report and Recommendation on November 3, 2014.
Doc. #19. Judge Sanders ordered process issued to Haywood on
February 9, 2015; Haywood received process on March 13, 2015.
Doc. #23; Doc. #26. After being sent a Clerk's Notice of
Default on October 1, 2015, Haywood answered
Hollingsworth's complaint on December 14, 2015. Doc. #34;
Doc. #36. On March 23, 2016, Haywood filed a motion for
summary judgment. Doc. #53. Hollingsworth did not respond to
the summary judgment motion. This Court denied
Hollingsworth's motion for summary judgment on December
12, 2016. Doc. #61.
14, 2017, Judge Sanders convened an evidentiary hearing on
Hollingsworth's remaining claim. Doc. #78. At the
hearing, Haywood and Captain Ollie Hall testified on behalf
of Haywood. Doc. #79. Hollingsworth and Darius Craig
testified on behalf of Hollingsworth. Id.
August 10, 2017, Judge Sanders issued a Report and
Recommendation recommending that Hollingsworth's claim be
dismissed on the ground that Haywood acted reasonably during
the relevant altercation. Doc. #81 at 8-9. The Report and
Recommendation warned that failure to file objections to the
recommendations within fourteen days would limit this
Court's review to plain error. Id. at 9. No
objections were filed to the Report and Recommendation.
However, on or about August 16, 2017, Hollingsworth filed a
change of address. Doc. #82. The docket does not reflect an
acknowledgment of receipt of the Report and Recommendation
to 28 U.S.C. § 636(b)(1)(B):
a judge may ... designate a magistrate judge to conduct
hearings, including evidentiary hearings, and to submit to a
judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the court,
of any motion excepted in subparagraph (A), of applications
for post[-]trial relief made by individuals convicted of
criminal offenses and of prisoner petitions challenging
conditions of confinement.
where objections to a report and recommendation have been
filed, a court must conduct a “de novo review of those
portions of the ... report and recommendation to which the
[party] specifically raised objections. With respect to those
portions of the report and recommendation to which no
objections were raised, the Court need only satisfy itself
that there is no plain error on the face of the
record.” Gauthier v. Union Pac. R.R. Co., 644
F.Supp.2d 824, 828 (E.D. Tex. 2009) (citing Douglass v.
United Serv. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996)) (internal citation omitted). However, where it is
unclear whether a litigant actually received a report and
recommendation, a court, out of an abundance of caution, may
review the report and recommendation for plain error. See
Draper v. Ott, No. 14-CA-945, 2015 WL 11430821, at *1-2
(W.D. Tex. May 7, 2015) (reviewing report and recommendation
for plain error where no objections filed, but receipt of
report and recommendation was uncertain).
Court has conducted a de novo review of Judge Sanders'
Report and Recommendation and has found no error.
Accordingly, the Report and Recommendation  is
ADOPTED as the order of this Court and this
action is DISMISSED. ...