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Pickens v. Roush

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

September 7, 2018

ROCKIE DURAL PICKENS PLAINTIFF
v.
M. LEIGHANN ROUSH DEFENDANT

          ORDER OVERRULING PLAINTIFF'S OBJECTION [27], ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [25], AND GRANTING DEFENDANT'S MOTION TO DISMISS [2]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Rockie Dural Pickens' Objection [27] to the Report and Recommendation [25] of United States Magistrate Judge John C. Gargiulo entered in this case on June 27, 2018, regarding Defendant M. Leighann Roush's Motion to Dismiss [2]. Based upon his review of Defendant's Motion [2], the related pleadings, and relevant legal authority, the Magistrate Judge determined that Defendant had not violated Plaintiff's constitutional right to access the courts, that Defendant's Motion to Dismiss [2] should be granted, and that this case should be dismissed. R. & R. [27] at 9-10. On July 16, 2018, Plaintiff filed an Objection [27] to the Report and Recommendation.

         After thoroughly reviewing Plaintiff's Objection [27], the Magistrate Judge's Report and Recommendation [25], Defendant's Motion to Dismiss [2], the record as a whole, and relevant legal authority, the Court finds that Plaintiff's Objection [27] should be overruled, the Magistrate Judge's Report and Recommendation [25] should be adopted as the finding of the Court, Defendant's Motion to Dismiss [2] should be granted, and this case should be dismissed with prejudice.

         I. BACKGROUND

         This matter arises out of the Mississippi Supreme Court's dismissal of Plaintiff Rockie Dural Pickens' (“Plaintiff”) appeal of the denial of his motion for post-conviction relief by the Circuit Court of Forrest County, Mississippi, following that Court's revocation of his probation. Compl. [1-2] at 1-9; Order [1-3] at 20-23. At all times relevant to the present matter, Plaintiff, a Mississippi Department of Corrections inmate, was housed at the Jackson County Adult Detention Center in Pascagoula, Mississippi, where Defendant M. Leighann Roush (“Defendant”) was employed as a paralegal. Mot. to Dismiss [2] at 2. In furtherance of his appeal of the Circuit Court's Order, Plaintiff alleges that on April 11, 2017, he submitted an Affidavit of Poverty to accompany his Motion to Proceed In Forma Pauperis before the Mississippi Supreme Court, but that the Defendant did not return the notarized Affidavit until April 21, 2017. Id. at 5-6. In the interim, Plaintiff's appeal was dismissed due to his failure to remit the filing fees and appeal costs. Compl. [1-2] at 1-9.

         On September 18, 2017, Plaintiff filed a Complaint [1-2] against Defendant Roush pursuant to 42 U.S.C. §1983 in the Circuit Court of Jackson County, Mississippi. The Complaint asserted a claim against Defendant Roush in her individual capacity for allegedly violating Plaintiff's constitutional right of “meaningful and effective access to the court, ” and sought $700, 000.00 in actual and punitive damages. Compl. [1-2] at 3, 7-8. Plaintiff claimed that Defendant's “prolonged delay” in providing notary services was “willful and malicious” and caused his appeal of the trial court's order to be dismissed. Id. at 7.

         Defendant removed the case to this Court on November 2, 2017, pursuant to federal question jurisdiction over Plaintiff's § 1983 claim under 28 U.S.C. § 1331. Removal [1] at 1. Defendant has filed a Motion to Dismiss [2] asserting that the Complaint fails to state a claim upon which relief can be granted. Specifically, Defendant argues that notary services were not relevant to the state supreme court's dismissal of Plaintiff's appeal, in that Plaintiff was not required to submit a notarized affidavit in order to proceed in forma pauperis on appeal pursuant to Mississippi Rule of Appellate Procedure 6(a)(2). Mot. to Dismiss [2] at 1-6.

         Plaintiff has filed a Response in Opposition [8] contending that, in addition to filing a Notice of Appeal [8-10], he also filed a Certificate of Compliance with Rule 11(b)(1) [8-6][1] in which he attested that he was taking the appeal in forma pauperis, pursuant to Mississippi Rule of Appellate Procedure 6(a)(2), such that he was not required to pay the costs of preparation of the record on appeal.[2] Resp. in Opp'n [8] at 1-13. Plaintiff argues that either the trial court revoked, or the appellate court failed to take notice of, his in forma pauperis status, which is why he received a deficiency notice. For this reason, Plaintiff maintains that his Affidavit of Poverty was essential to prosecute his appeal, id., and that his appeal was dismissed due to Defendant's failure to timely notarize his Affidavit of Poverty so that he could submit it to the appellate court, id. at 1-13.

         On June 27, 2018, the Magistrate Judge entered a Report and Recommendation [25], determining that Plaintiff's Complaint failed to state a claim upon which relief can be granted. The Magistrate Judge recommended that this case be dismissed with prejudice for two reasons: (1) the dismissal of Plaintiff's appeal could not be attributed to Defendant because Plaintiff did not need a notarized affidavit to respond to the Mississippi Supreme Court Clerk's deficiency letter; and (2) the Complaint did not identify the underlying cause of action which would have afforded him relief had his appeal actually gone forward. R. & R. [25] at 5-10.

         On July 16, 2018, Plaintiff filed an Objection [27] to the Report and Recommendation. Obj. [27] at 1-13. Plaintiff maintains that he could have successfully appealed the revocation of his probation if only the Defendant had timely notarized and returned his Affidavit of Poverty.

         II. DISCUSSION

         A. Standard of review

         Because Plaintiff has objected to the Magistrate Judge's Report and Recommendation, this Court is required to make a de novo determination of ‘“those portions of the [magistrate's] report or specified proposed findings or recommendations to which objection is made.'” Funeral Consumers Alliance, Inc. v. Serv. Corp Int'l, 695 F.3d 330, 347 (5th Cir. 2012) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)); see also Longmire v. Guste, 921 F.2d 620, 623 (5th Cir. 1991) (noting parties are entitled to a de novo review by an Article III Judge as to those issues to which an objection is made).

         A court is not required, however, to make new findings of fact independent of those made by a magistrate. Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a court required to reiterate the findings and conclusions of a magistrate judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). A court need not consider objections which are frivolous, conclusive, or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1987); see also Nettles v. Wainwright,677 F.2d 404, 410 n.8 (5th Cir.1982) (“Parties filing objections ...


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