United States District Court, S.D. Mississippi, Northern Division
REV. DAVID WILSON PLAINTIFF
PENSION BENEFIT GUARANTY CORP., et al. DEFENDANTS
ORDER OVERRULING PLAINTIFF'S  OBJECTION,
ADOPTING MAGISTRATE JUDGE'S  REPORT AND
RECOMMENDATION, AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff David Wilson's
Objection  to the Report and Recommendation  of
United States Magistrate Judge John C. Gargiulo, entered in
this case on October 24, 2017. Based upon Plaintiff's
contumacious conduct in failing appear at two duly-noticed
screening hearings, failing to obey Court Orders, and failing
to prosecute, the Magistrate Judge recommended that this case
be dismissed without prejudice. R. & R.  at 3. After
thoroughly reviewing Plaintiff's Objection , the
Magistrate Judge's Report and Recommendation , the
record, and relevant legal authority, the Court finds that
Plaintiff's Objection  should be overruled, that the
Magistrate Judge's Report and Recommendation  should
be adopted as the finding of the Court, and that this case
should be dismissed without prejudice.
13, 2017, Plaintiff David Wilson (“Plaintiff” or
“Wilson”) filed a pro se Complaint  in this
Court along with a Motion  for Leave to Proceed In
Forma Pauperis. It is unclear from
Plaintiff's handwritten Complaint  what claims he is
asserting, but his pleading references the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §
1001, et seq. (“ERISA”) pertaining to a
pension plan, or plans, in which Plaintiff purportedly
participated until 1986. See Compl.  at 4-6.
August 10, 2017, the Magistrate Judge entered an Order 
Setting Screening Hearing “in order to allow Plaintiff
the opportunity to more definitely and clearly state the
factual and legal bases for his claims” and to permit
the Court to determine whether Plaintiff should be permitted
to proceed in forma pauperis or whether any portion
of the Complaint should be dismissed under 28 U.S.C. §
1915(e)(2). Order  at 1.
Magistrate Judge scheduled the screening hearing for
September 27, 2017, id. at 2, and provided notice of
the same to Plaintiff via certified mail, see
Acknowledgment  at 1. The Magistrate Judge cautioned
Plaintiff that “if he fails to appear at the screening
hearing, this case may be dismissed without prejudice and
without further notice to Plaintiff.” Order  at 2.
Plaintiff received a copy of the Order setting the screening
hearing on August 14, 2017. See Acknowledgment 
August 22, 2017, Plaintiff filed a Motion  to Object to
Screening Hearing with Prejudice. Plaintiff objected to the
scheduling of a screening hearing, arguing that he was
entitled to proceed in forma pauperis under 28
U.S.C. § 1915, and demanded a bench trial. Mot.  at
2-5. On August 25, 2017, the Magistrate Judge denied
Plaintiff's Motion  and notified Plaintiff that the
screening hearing would proceed on September 27, 2017.
See Aug. 25, 2017, Text Order. Plaintiff did not
appear for the September 27, 2017, screening hearing.
See Sept. 27, 2017, Minute Entry.
September 28, 2017, the Magistrate Judge entered a Show Cause
Order  directing Plaintiff to file a written response on
or before October 12, 2017, “showing cause why his
failure to appear at the screening hearing and abide by the
Court's Orders should not result in dismissal of this
suit for failure to prosecute.” Order  at 1.
Plaintiff was “specifically warned that failure to
comply with this Order by timely filing a written response
will result in an immediate recommendation to the District
Judge that this case be dismissed without prejudice pursuant
to Federal Rule of Civil Procedure 41(b).” Id.
at 1-2. This Order was mailed to Plaintiff via certified mail
at his address of record, see Id. at 2, and
Plaintiff received the Order on September 30, 2017, see
also Acknowledgment  at 1.
October 4, 2017, Plaintiff filed a “Motion to Show
Causes [sic] Order, ” which the Clerk docketed as a
Response  to the Show Cause Order . Plaintiff cited
Federal Rule of Evidence 803 and argued that certain
exhibits demonstrated the factual and legal bases
of his claims. Resp.  at 2-3. Other than Plaintiff's
vague, conclusory statement that “he is unable to
travel at this time, ” id. at 4, his Response
offered no justification for his failure to appear at the
October 10, 2017, the Magistrate Judge scheduled a second
screening hearing for October 19, 2017, and warned Plaintiff
that if he failed to appear, the Magistrate Judge would
“immediately recommend to the District Judge that this
case be dismissed without prejudice for failure to comply
with Court orders.” Order  at 2. Plaintiff received
the Order  via certified mail some time prior to October
16, 2017. See Acknowledgment  at 1 (signed, but
undated, return receipt filed by the Clerk of Court on
October 16, 2017).
October 17, 2017, Plaintiff filed a Motion  for Extension
of Time. Plaintiff claimed that he was “suffering from
back problem” and was unable to attend the screening
hearing because of lack of transportation. Mot.  at 2.
Plaintiff complained that the Court failed to acknowledge the
evidence of his income and requested a 90-day extension.
Id. at 2-3.
The Magistrate Judge denied Plaintiff's Motion 
Plaintiff's asserted lack of transportation is not
grounds for rescheduling the screening hearing for a date
ninety days in the future. His transportation options are
presumably the same as they were when he received notice of
the first screening hearing, and the Court has been given no
reason to believe they will materially change in ninety
days' time. Plaintiff's allegations of back problems
are similarly unsubstantiated and do not absolve Plaintiff of