Riley v. Halphen et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 45 Report and Recommendations, Signed by District Judge Halil S. Ozerden on 1/22/2015 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KRISTOPHER RILEY

PLAINTIFF

VERSUS

CIVIL ACTION NO. 1:12cv319-HSO-RHW

JENNIFER HALPHEN, Individually
and in Her Official Capacity, et al.

DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [45] PROPOSED
FINDINGS OF FACT AND RECOMMENDATION, AND DISMISSING
PLAINTIFF’S REMAINING CLAIMS WITHOUT PREJUDICE
This matter comes before the Court on the assigned Magistrate Judge’s
Proposed Findings of Fact and Recommendation [45], entered on December 11,
2014. After consideration of the Proposed Findings of Fact and Recommendation,
the record in this case, and relevant legal authorities, and for the reasons discussed
below, the Court finds that the Proposed Findings of Fact and Recommendation

should be adopted as the finding of this Court, and that Plaintiff’s remaining claims
in this action should be dismissed without prejudice.
I. BACKGROUND
This case stems from Plaintiff Kristopher Riley’s [“Plaintiff”] employment
with Defendant Specialized Treatment Facility [“STF”] as a Mental Health Active
Treatment Tech Trainee. Plaintiff filed his Complaint through retained counsel on
October 17, 2012. Compl. [1] at 1. He filed an Amended Complaint [4] on March 11,
2013, and a Second Amended Complaint [16] on June 5, 2013. Plaintiff named as
Defendants STF, Mississippi Department of Mental Health, and Individual
Defendants Jennifer Halphen, James “Rocky” Miles, Randy Rohrbacher, Stacey

Miller, and Edwin C. LeGrand, III, in their individual and official capacities. Second
Am. Compl. [4] at 1.
The Second Amended Complaint charges that Plaintiff was discriminated
against and harassed because of a disability from which he suffers and that
Defendants failed to reasonably accommodate him which ultimately caused Plaintiff
to resign from his position with STF. Id. at 1–2. The Second Amended Complaint
asserts claims for alleged violations of Plaintiff’s civil rights under 42 U.S.C. § 1983,
specifically the Fourteenth Amendment’s Equal Protection Clause, and of the
Americans with Disabilities Act, 42 U.S.C.A. §§ 12101, et seq., [the “ADA”]. Plaintiff
also advances claims under 42 U.S.C. § 1985 for conspiracy to interfere with
Plaintiff’s civil rights; under 42 U.S.C. § 1986 for negligently or intentionally failing
to prevent a conspiracy to deprive Plaintiff of his civil rights; for failure to
adequately train and supervise officials; for negligent hiring, retention, and failure to
discipline or take necessary corrective action; for violation of the ADA; and for
violation of the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. See id. at 8–20. The
Second Amended Complaint also asserts pendent state law claims. Id. at 20–22. On

March 26, 2014, the Court entered a Memorandum Opinion and Order [30]
dismissing with prejudice Plaintiff’s claims against Defendants Jennifer Halphen,
Edwin C. LeGrand, III, James Miles, Stacey Miller, and Randy Rohrbacher in their
individual capacities.
On September 19, 2014, Plaintiff’s counsel moved to withdraw as attorney of
record, stating that “Plaintiff failed to maintain contact with this attorney and fell

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[sic] to keep scheduled appointments,” and “Plaintiff and Attorney have come to an
impasse and disagree on how to proceed further in this case.” Mot. [38] at 1.
Plaintiff’s counsel filed a Notice [39] on September 24, 2014, indicating that the
Motion to Withdraw was e-mailed and mailed to Plaintiff on September 24, 2014.
Notice [39] at 1. Plaintiff did not respond to his attorney’s Motion.
On October 14, 2014, the Magistrate Judge granted the Motion to Withdraw
[38]. Order [40] at 1. The Magistrate gave Plaintiff “until November 14, 2014, to
obtain substitute counsel or to inform the Court in writing of his intention to
proceed pro se.” Id. (emphasis in original). The Magistrate cautioned Plaintiff that
“failure to obtain substitute counsel or to inform the Court in writing of
his intention to proceed pro se within the time allowed may result in the
dismissal of his lawsuit.” Id. (emphasis in original). The Order [40] was mailed
to Plaintiff and was not returned as undeliverable.
On October 24, 2014, the Magistrate Judge noticed a settlement conference
for December 11, 2014. Notice of the settlement conference was mailed to Plaintiff
at his address of record and was not returned to the Court as undeliverable.
Defense counsel appeared at the settlement conference, but Plaintiff did not. See
Dec. 11, 2014, Minute Entry. On the same date, the Magistrate Judge entered his
Proposed Findings of Fact and Recommendation [45]. The Magistrate Judge found
that, based upon Plaintiff’s conduct, Plaintiff no longer wishes to pursue his
lawsuit. The Magistrate Judge noted that since Plaintiff’s counsel was allowed to
withdraw from this case Plaintiff had not complied with the Court’s Orders, had not

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obtained substitute counsel or communicated to the Court his intention to proceed
pro se, and had failed to appear for a settlement conference held before the
Magistrate Judge. Proposed Findings of Fact and Recommendation [45], at 1-2.
The Magistrate Judge recommended that this civil action be dismissed without
prejudice. Id. A copy of the Proposed Findings of Fact and Recommendation was
sent to Plaintiff at his last known address by certified mail, return receipt
requested, but the envelope was returned as unclaimed [46]. To date, no objection
to the Proposed Findings of Fact and Recommendation has been filed.
II. DISCUSSION
Where no party has objected to a magistrate judge’s proposed findings of fact
and recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“a judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings and recommendations to which objection
is made”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989). Having conducted the required review, the Court

concludes that the Magistrate Judge’s findings are not clearly erroneous, nor are
they an abuse of discretion or contrary to law. For the foregoing reasons, the Court
will adopt the Magistrate Judge’s Proposed Findings of Fact and Recommendation
[45] as the opinion of this Court and dismiss Plaintiff’s remaining claims without
prejudice.

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Even if the Court were to conduct a de novo review, dismissal of Plaintiff’s
claims is warranted. This Court has the authority to dismiss an action for
Plaintiff’s failure to prosecute under Federal Rule of Civil Procedure 41(b), and
under its inherent authority to dismiss the action sua sponte. See Link v. Wabash
Railroad, 370 U.S. 626, 630-31 (1962); McCullough v Lynaugh, 835 F.2d 1126, 1127
(5th Cir. 1988). The Court must be able to clear its calendars of cases that remain
dormant because of the inaction or dilatoriness of the parties seeking relief, so as to
achieve the orderly and expeditious disposition of cases. Such a sanction is
necessary in order to prevent undue delays in the disposition of pending cases and
to avoid congestion in the calendars of the court. See Link, 370 U.S. at 630-31.
Plaintiff did comply with the deadline provided by the Magistrate Judge even
after being warned that his failure to obtain substitute counsel or inform the Court
in writing of his intention to proceed pro se within the time allowed might result in
the dismissal of his lawsuit. Order [40] at 1. Plaintiff failed to appear for a
settlement conference scheduled with the Magistrate Judge on December 11, 2014,
and has failed to file any documents into the record of this case since his counsel
was permitted to withdraw on October 14, 2014. The envelope containing the Show
Cause Order was also returned as “unclaimed” [46] by Plaintiff.
Defendant has filed a Motion for Summary Judgment [43] to which Plaintiff
has not responded. This matter is currently set for a pretrial conference on March
17, 2015, and for trial on April 6, 2015. Plaintiff has filed nothing in this case since
his counsel withdrew. Such inaction presents a clear record of delay or

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contumacious conduct by Plaintiff. It is apparent to the Court that Plaintiff no
longer wishes to pursue this lawsuit. Dismissal without prejudice is warranted.
III. CONCLUSION
For the reasons stated herein, the Court concludes that the Magistrate
Judge’s Proposed Findings of Fact and Recommendation should be adopted as the

finding of this Court, and Plaintiff’s remaining claims will be dismissed without
prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Proposed Findings of Fact and Recommendation [45], entered in this case
on December 11, 2014, is adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff
Kristopher Riley’s remaining claims against Defendants are hereby DISMISSED
WITHOUT PREJUDICE. A separate judgment will be entered in accordance with
this Order, as required by Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 22nd day of January, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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