United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING PLAINTIFF'S OBJECTION ,
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, AND GRANTING DEFENDANT'S MOTION TO DISMISS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Rockie Dural
Pickens' Objection  to the Report and Recommendation
 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 . Based upon his
review of Defendant's Motion , 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  should be granted, and
that this case should be dismissed. R. & R.  at 9-10.
On July 16, 2018, Plaintiff filed an Objection  to the
Report and Recommendation.
thoroughly reviewing Plaintiff's Objection , the
Magistrate Judge's Report and Recommendation ,
Defendant's Motion to Dismiss , the record as a whole,
and relevant legal authority, the Court finds that
Plaintiff's Objection  should be overruled, the
Magistrate Judge's Report and Recommendation  should
be adopted as the finding of the Court, Defendant's
Motion to Dismiss  should be granted, and this case should
be dismissed with prejudice.
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  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.
September 18, 2017, Plaintiff filed a Complaint [1-2] against
Defendant Roush pursuant to 42 U.S.C. Â§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.
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  at 1.
Defendant has filed a Motion to Dismiss  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  at 1-6.
has filed a Response in Opposition  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] 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. Resp. in Opp'n  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.
27, 2018, the Magistrate Judge entered a Report and
Recommendation , 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.  at 5-10.
16, 2018, Plaintiff filed an Objection  to the Report and
Recommendation. Obj.  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.
Standard of review
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
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 ...