United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION  AND DISMISSING PLAINTIFF'S
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered on October 5, 2017. The Magistrate Judge
recommended that the Complaint  filed by pro se
Plaintiff Emmett Hellmers III (“Hellmers”) be
dismissed for failure to prosecute and also that summary
judgment be granted against Hellmers for failing to exhaust
administrative remedies. R. & R.  at 4-5. After due
consideration of the Report and Recommendation, the record,
and relevant legal authority, the Court finds that the Report
and Recommendation should be adopted as the finding of this
Court, and that Hellmers' claims in this action should be
9, 2016, Hellmers filed a Complaint  against Defendant
Pearl River County Sheriff's Department pursuant to 42
U.S.C. § 1983. Hellmers filed this suit while confined
as a pretrial detainee at the Lenoir Rowell Criminal Justice
Center in Pearl River County, Mississippi. Hellmers
complained that the conditions of his confinement were
unconstitutional and that an illegal search warrant was
executed against his phone.
later added Defendants Van Giadrosich, Rob Williams, Cory
Mataya, Lisa Wayne, and Joann Graham. Pl.'s Resps.
. This Court issued an Order  on March 30,
2017, dismissing Defendant Pearl River County Sheriff's
Department and denying Hellmers' request to add Lenoir
Rowell Criminal Justice Center and two state court judges as
Defendants. To the extent that Plaintiff sought release from
incarceration, those claims were severed and a new habeas
regard to Hellmers' § 1983 claims, the Court set an
omnibus hearing for August 23, 2017, which was to serve as a
case management and Spears hearing. Order . The
Court ordered that Hellmers must elaborate on his claims at
the hearing “so that it may be determined whether this
case or any portion of it should proceed.” Id.
at 1. A Writ of Habeas Corpus Ad Testificandum  was
issued to the Warden of Lenoir Rowell Criminal Justice Center
to produce Hellmers for the omnibus hearing. Prior to the
hearing, the Deputy Clerk received a telephone call from
Lenoir Rowell Criminal Justice Center advising that Hellmers
had been released. R. & R.  at 3.
did not appear at the omnibus hearing. The Court issued an
Order  to Show Cause, directing Hellmers to file a
response showing cause why his failure to appear at the
hearing or to follow the Court's numerous orders
requiring him to keep the Court apprised of his current
address should not result in the Court dismissing his case
pursuant to Federal Rule of Civil Procedure 41(b) for failure
to prosecute. The Court warned Hellmers that failure to file
a timely response to the Order to Show Cause would result in
a recommendation that this case be dismissed. Hellmers did
August 21, 2017, the Defendants filed a Motion  for
Judgment on the Pleadings, or in the Alternative for Summary
Judgment. Defendants contended that Hellmers failed to
exhaust administrative remedies. Mot.  at 2. Defendants
submitted affidavits attesting that Hellmers' prison file
was reviewed and revealed that Hellmers filed no grievances
while at Lenoir Rowell Criminal Justice Center, despite being
advised of those procedures during booking. Affs.
October 5, 2017, the Magistrate Judge entered a Report and
Recommendation , recommending that Hellmers' claims
be dismissed for failure to prosecute and failure to exhaust
administrative remedies. The Magistrate Judge found a
“clear pattern of delay and contumacious conduct,
” as Hellmers did not keep the Court apprised of his
mailing address, did not file a response to Defendants'
Motion, did not appear at the omnibus hearing, and did not
respond to the post-hearing Order to Show Cause. R. & R.
 at 4-5. The Magistrate Judge recommended dismissal of
the claims under Federal Rule of Civil Procedure 41(b) for
failure to prosecute. Id. at 5. The Magistrate Judge
also recommended that Defendants were entitled to summary
judgment on grounds that Hellmers' claims are barred by
42 U.S.C. § 1997e(a), which requires prisoners to
exhaust available administrative remedies prior to filing an
action with respect to prison conditions. The Magistrate
Judge found that Defendants had carried their initial summary
judgment burden by providing affidavits regarding
Hellmers' failure to file a grievance and also noted that
Hellmers submitted nothing to rebut Defendants' evidence.
R. & R.  at 7.
of the Report and Recommendation was mailed to Hellmers at
his address of record via certified mail and was delivered on
October 10, 2017. Acknowledgment of Receipt . Hellmers
has not objected to the Report and Recommendation, and the
time for doing so has passed.
no party has objected to a magistrate judge's proposed
findings of fact and recommendation, the Court need not
conduct a de novo review of it. 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 or recommendations to which objection is
made.”). In such cases, the Court applies the
“clearly erroneous, abuse of discretion and contrary to
law” standard of review. United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an abuse of discretion or contrary to law. The
Court will adopt the Magistrate Judge's Report and
Recommendation  as the opinion of this Court.
Defendants' Motion  for Judgment on the Pleadings, or
in the Alternative for Summary Judgment will be granted, and
this civil action ...