United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING IN PART REPORT AND
M. BROWN, UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Jane M. Virden recommending that this case
be dismissed. Doc. # 6.
invoking federal question jurisdiction, filed his pro se
complaint on March 15, 2017. Doc. #1. Wright alleges in his
complaint that the defendants-Jackson Rental Properties,
Inc., the Department of Community Development, Danita
Staples, and Willie Jackson-posted false signs about his
apartment's fitness for occupancy and improperly ordered
him to move out of his apartment. Id. at 4-5. Wright
further alleges that the City of Cleveland
“participated” in the defendants' wrongful
actions. Id. at 7. As the jurisdictional basis for
his claim, Wright indicates that his suit raises a federal
question, asserting that his civil rights were violated.
Id. at 3. On the same day he filed his complaint,
Wright filed a motion to proceed in forma pauperis
(“IFP Motion”). Doc. #2.
March 16, 2017, Judge Virden ordered Wright to show cause
within fourteen days why she “should not recommend that
the IFP Motion be denied and the case be dismissed with
prejudice for lack of subject matter jurisdiction and failure
to state a claim under Fed. R. Civ. Pro. 12(b)(6).”
Doc. #4 at 1. In the show cause order, Judge Virden stated
that “[Wright] does not allege that he is being forced
to move out due to his race, religion, or otherwise.”
Id. Judge Virden further described the bases for
federal jurisdiction and cautioned Wright that if he failed
to “identify a violated law of the United States or
deprivation of a Constitutional right and some facts to
support that claim or identify facts on which the court can
[find] diversity jurisdiction to hear this matter, ”
his case would be dismissed. Doc. #4 at 2-4. Wright
acknowledged receipt of the show cause order but never
responded. Doc. #5.
April 3, 2017, Judge Virden issued a Report and
Recommendation recommending that Wright's IFP Motion be
denied and his claim be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B) for lack of jurisdiction and for failure
to state a claim. Doc. #6 at 4. The Report and Recommendation
that any … objections [to the Report and
Recommendation] are required to be in writing and must be
filed within fourteen (14) days of this date. Failure to
timely file written objections to the proposed findings,
conclusions and recommendations contained in this report will
bar an aggrieved party, except upon grounds of plain error,
from attacking on appeal unobjected-to proposed factual
findings and legal conclusions accepted by the district
Id. at 4. A copy of the Report and Recommendation
was mailed to Wright the day it was issued but was returned
as undeliverable eight days later.
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 [parties] 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 Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29
(5th Cir. 1996), superseded on other grounds by
statute, 28 U.S.C. § 636(b)(1)) (internal citations
as here, it is not known whether a litigant actually received
a report and recommendation, out of an abundance of caution,
a court may review the entire report and recommendation de
novo. Draper v. Ott, No. A-14-CA-945, 2015 WL
11430821, at * 1-2 (W.D. Tex. May 7, 2015). Accordingly, the
Court will review de novo the Report and Recommendation.
Wright seeks to proceed in forma pauperis, his claims must be
analyzed against the backdrop of 28 U.S.C. § 1915. Under
§ 1915, a court “shall dismiss the case at any
time if the court determines that … the action
… (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks ...