United States District Court, N.D. Mississippi, Aberdeen Division
ZORRI N. RUSH PLAINTIFF
WEBSTER COUNTY DEPARTMENT OF HUMAN SERVICES, et al. DEFENDANTS
matter is before the Court on the report and recommendations
 of United States Magistrate Judge Roy Percy and the
objections to the report and recommendations  filed by
Plaintiff Zorri Rush. Having the reasons stated below, the
Court finds that the objections should be overruled.
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.
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).
"[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").
Subject Matter Jurisdiction
objects to the Magistrate Judge's recommendation that
this cause be dismissed for lack of subject matter
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 .
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
Magistrate Judge entered a Show Cause Order  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).
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)).
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.
In Forma Pauperis Status
next objects to the Magistrate Judge's recommendation
that his motion to proceed ...