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Wilson v. Pension Benefit Guarnty Corp.

United States District Court, S.D. Mississippi, Northern Division

January 8, 2018

REV. DAVID WILSON PLAINTIFF
v.
PENSION BENEFIT GUARANTY CORP., et al. DEFENDANTS

          ORDER OVERRULING PLAINTIFF'S [15] OBJECTION, ADOPTING MAGISTRATE JUDGE'S [13] REPORT AND RECOMMENDATION, AND DISMISSING PLAINTIFF'S CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff David Wilson's Objection [15] to the Report and Recommendation [13] 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. [13] at 3. After thoroughly reviewing Plaintiff's Objection [15], the Magistrate Judge's Report and Recommendation [13], the record, and relevant legal authority, the Court finds that Plaintiff's Objection [15] should be overruled, that the Magistrate Judge's Report and Recommendation [13] should be adopted as the finding of the Court, and that this case should be dismissed without prejudice.

         I. BACKGROUND

         On July 13, 2017, Plaintiff David Wilson (“Plaintiff” or “Wilson”) filed a pro se Complaint [1] in this Court along with a Motion [2] for Leave to Proceed In Forma Pauperis. It is unclear from Plaintiff's handwritten Complaint [1] 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. [1] at 4-6.

         On August 10, 2017, the Magistrate Judge entered an Order [3] 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 [3] at 1.

         The 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 [4] 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 [3] at 2. Plaintiff received a copy of the Order setting the screening hearing on August 14, 2017. See Acknowledgment [4] at 1.

         On August 22, 2017, Plaintiff filed a Motion [5] 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. [5] at 2-5. On August 25, 2017, the Magistrate Judge denied Plaintiff's Motion [5] 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.

         On September 28, 2017, the Magistrate Judge entered a Show Cause Order [6] 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 [6] 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 [7] at 1.

         On October 4, 2017, Plaintiff filed a “Motion to Show Causes [sic] Order, ” which the Clerk docketed as a Response [8] to the Show Cause Order [6]. Plaintiff cited Federal Rule of Evidence 803 and argued that certain exhibits[1] demonstrated the factual and legal bases of his claims. Resp. [8] 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 hearing.

         On 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 [9] at 2. Plaintiff received the Order [9] via certified mail some time prior to October 16, 2017. See Acknowledgment [10] at 1 (signed, but undated, return receipt filed by the Clerk of Court on October 16, 2017).

         On October 17, 2017, Plaintiff filed a Motion [11] 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. [11] 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 [11] finding that
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 his ...

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