United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
M. BROWN UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Jane M. Virden. Doc. #100.
Relevant Procedural History
about May 20, 2016, Levonzel Anderson filed a pro se prisoner
complaint against numerous employees of the Mississippi State
Penitentiary and the Mississippi Parole Board. Doc. #1. On
September 27, 2016, United States Magistrate Judge Jane M.
Virden held a Spears hearing on Anderson's
allegations. See Doc. #18.
February 27, 2017, Defendant Nurse Angela Brown filed a motion
for summary judgment addressing Anderson's failure to
protect claim. Doc. #62. On March 7, 2017, the remaining
defendants ("Remaining Defendants") filed a
"Motion for Summary Judgment Based on Sovereign and
Qualified Immunity, " addressing Anderson's failure
to protect and denial of access to the Court claims. Doc.
#68. On or about April 6, 2017, Anderson filed
"Plaintiffs' Response to Angela Browns' [sic]
Motion for Summary Judgment." Doc. #76.
18, 2017, Judge Virden issued a Report and Recommendation
recommending that Brown and the Remaining Defendants'
motions for summary judgment be granted and that
Anderson's remaining claims be dismissed for failure to
state a claim upon which relief can be granted. Doc. #100.
The Report and Recommendation warned:
Objections [to the Report and Recommendation] must be in
writing and must be filed within fourteen (14) days of this
date, and "a party's failure to file written
objections to the findings, conclusions, and recommendation
in a magistrate judge's report and recommendation within
 days after being served with a copy shall bar that
party, except on grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court ...."
Douglass v. United Services Automobile Ass'n, 79
F.3d 1415, 1428-29 (5th Cir. 1996) (en banc)(citations
omitted); see also United States v.
Carrillo-Morales, 27 F.3d 1054, 1061-62 (5th Cir. 1994),
cert, denied, 513 U.S. 1178(1995).
Id. at 20.
acknowledged receipt of the Report and Recommendation on July
19, 2017. Doc. #101. On or about July 24, 2017, Anderson
requested an extension to file objections. Doc. #102. On July
27, 2016, Judge Virden granted the motion, giving Anderson
until August 15, 2017 to file his objections. Doc. #103. On
or about August 3, 2017, Anderson filed a "Motion to
Show Cause for an [sic] Preliminary Injunction, " which,
although unclear, appears to be his objections to the Report
and Recommendation. Doc. #104.
Standard of Review
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 Defendants
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, "frivolous,
conclusive, or general objections need not be considered by
the district court." Battle v. U.S. Parole Comm
'n, 834 F.2d 419, 421 (5th Cir. 1987).
objections, Anderson first asserts that he never received a
copy of the Remaining Defendants' motion for summary
judgment. Doc. #104 at 26. The Remaining Defendants'
motion for summary judgment contains a Certificate of Service
that shows the motion was mailed "via United States
Postal Service, first class postage prepaid, " to
Anderson at the address provided. Doc. #68. Rule 5 of the
Federal Rules of Civil Procedure allows for service by mail,
and states that service by mail is complete upon mailing.
Considering that the motion contained a Certificate of
Service, signed by counsel, representing that the motion was
mailed to Anderson's then-current address, the Court
finds Anderson's allegations of non-receipt unpersuasive.
See McZealv. MidSouth Nat'1 Bank, NA, No.
2:15-cv-2315, 2017 WL 1332730, at *4 (W.D. La. Jan. 13, 2017)
("plaintiff's conclusory allegations that he
received everything but the motions do not rebut the
defendants' showing of service"). Accordingly, the
Court overrules the objection.
remainder of Anderson's arguments are simply a
reiteration of his sexual assault claim, which he attempts to
buttress with an affidavit referring generally to alleged
assaults which occurred after the defendants moved for
summary judgment. Doc. #104 at 31-33. However, the affidavit
of the plaintiff, which relates to allegations of assault not
before the Court, does not undermine Judge Virden's
recommendations. As such, having further reviewed the
remainder of the Report and Recommendation for clear error
and found ...