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Rush v. Webster County Department of Human Services

United States District Court, N.D. Mississippi, Aberdeen Division

October 25, 2018

ZORRI N. RUSH PLAINTIFF
v.
WEBSTER COUNTY DEPARTMENT OF HUMAN SERVICES, et al. DEFENDANTS

          MEMORANDUM OPINION

         This matter is before the Court on the report and recommendations [9] of United States Magistrate Judge Roy Percy and the objections to the report and recommendations [14] filed by Plaintiff Zorri Rush. Having the reasons stated below, the Court finds that the objections should be overruled.

         The Magistrate Judge recommends that this matter be dismissed for lack of subject matter jurisdiction and that Rush's motion to proceed in forma pauperis is denied. Rush objects to both those recommendations. Additionally, Rush claims that the Magistrate Judge has failed to document certain evidence Rush provided to the Magistrate Judge. Finally, Rush objects to the Magistrate Judge's order denying Rush permission to make filings with the Court through email rather than mail.

         Standard of Review

         When reviewing the report and recommendations of a magistrate judge, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636. "Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982), overruled on other grounds by Douglass v. United States Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996).

         Further, "[a] magistrate judge's non-dispositive order may only be set aside if it 'is clearly erroneous or is contrary to law.'" Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014) (quoting id.). See 28 U.S.C. § 636(b)(1)(A) (magistrate judge's nondispositive orders may be reconsidered "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law"); L.U. Civ. R. 72(a)(1)(B) ("No ruling of a magistrate judge in any matter which he or she is empowered to hear and determine will be reversed, vacated, or modified on appeal unless the district judge determines that the magistrate judge's findings of fact are clearly erroneous, or that the magistrate judge's ruling is clearly erroneous or contrary to law").

         Analysis

         I. Subject Matter Jurisdiction

         Rush objects to the Magistrate Judge's recommendation that this cause be dismissed for lack of subject matter jurisdiction.

         Rush brought this pro se action against the Webster County Department of Human Services, Annie Patterson, Ann Hitt, Mississippi Regional Housing Authority IV, Gwendolyn King, and Brian Powers. As the basis for jurisdiction, Rush cited: "5 USC Ch. 15; Political Activity of Certain State and Local officials 42 U.S.C. 12131-12134), as amended by the ADA Amendments Act of 2008 (ADA Amendments Act)(Public Law 110-325, 122 Stat. 3553 (2008))." Compl. at 2 [1]. His "Statement of Claim" asserted that "The local offices use a policy adopted by the state for 'able bodied workers' or 'non-visible disability' in violation of federal law against discrimination based on disability. This policy egregiously reduces the amount of benefits available to applicants. Internal management and policy do not permit access to information necessary to determine the extent of harm caused by misrepresenting reports." Id.

         The Magistrate Judge entered a Show Cause Order [5] directing Rush to explain why this Court has subject-matter jurisdiction. Rush responded by asserting that this Court had jurisdiction under Federal Rules of Civil Procedure 9(b).

         Federal Rules of Civil Procedure 8(a) requires that a complaint contain "a short and plain statement of the grounds upon which the court's jurisdiction depends." While "a particular statute or rule need not necessarily be cited by name-it is generally agreed that 'the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference." Illinois Cent. Gulf R. Co. v. Par gas, Inc., 706 F.2d 633, 636 (5th Cir. 1983) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1206, at 78-79 (1969 & Supp.1983)). Even when a particular law is mentioned, "mere reference to federal law does not give rise to subject matter jurisdiction if the claim has no plausible foundation." Johnson v. CenterPoint Energy, No. CIVA 06-2314, 2007 WL 1551054, at *2 (W.D. La. Mar. 19, 2007) (citing Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.1981) (en banc)).

         Rush does not provide the necessary factual basis to allow the Court to determine its jurisdiction. The Court agrees with the Magistrate Judge that the facts of the complaint are too vague. His "mere references" to federal statutes do not provide the necessary factual detail to establish jurisdiction. Further, his reference Rule 9(b) is irrelevant because the Federal Rules of Civil Procedure are just that-procedural rules, not statutes that confer jurisdiction. Rush's objection is overruled.

         II. In Forma Pauperis Status

         Rush next objects to the Magistrate Judge's recommendation that his motion to proceed ...


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