Davis v. County of Jackson, Mississippi et al

Filing 67

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATIONS for 65 Report and Recommendations; dismissing with prejudice plaintiff's claims for failure to state a claim upon which relief may be granted; issuing plaintiff a strike; and denying as moot 63 Motion for Summary Judgment filed by Wendy Nevals, County of Jackson, Mississippi, Mike Wright, Mike Ezell, Signed by District Judge Halil S. Ozerden on 1/12/2018 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SHAWN LABARRON DAVIS

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v.
COUNTY OF JACKSON,
MISSISSIPPI, et al.

PLAINTIFF
Civil No. 1:16cv80-HSO-JCG

DEFENDANTS

ORDER ADOPTING IN PART AND MODIFYING IN PART
MAGISTRATE JUDGE’S [65] REPORT AND RECOMMENDATION;
DISMISSING WITH PREJUDICE PLAINTIFF’S CLAIMS FOR FAILURE
TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED;
ISSUING PLAINTIFF A STRIKE; AND DENYING AS MOOT
DEFENDANTS’ [63] MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on the Report and Recommendation [65]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
December 13, 2017, and the Motion for Summary Judgment [63] filed by
Defendants County of Jackson, Mississippi, Mike Wright, Wendy Nevals, and Mike
Ezell on May 12, 2017. Based upon a review of the pleadings and relevant legal
authority, the Magistrate Judge recommended that Defendants’ Motion for
Summary Judgment [63] be granted, that Plaintiff’s claims be dismissed with
prejudice for failure to state a claim upon which relief can be granted, and that
Plaintiff be issued a strike pursuant to 28 U.S.C. § 1915(g). R. & R. [65] at 7.
For the reasons that follow, the Court finds that the Report and
Recommendation [65] should be adopted in its entirety as the finding of this Court,
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except to the extent it recommends granting Defendants’ Motion for Summary
Judgment [63].

Because Plaintiff’s claims will be dismissed for failure to state a

claim upon which relief may be granted pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), the
Court need not proceed beyond the pleading stage, and Defendants’ Motion for
Summary Judgment [63] is rendered moot. The dismissal of this action for failure
to state a claim counts as a strike under 28 U.S.C. § 1915(g).
I. BACKGROUND
Plaintiff Shawn LaBarron Davis (“Plaintiff”), proceeding in forma pauperis,
filed a pro se Complaint [1] in this Court on March 3, 2016. The Complaint
advances claims pursuant to 42 U.S.C. § 1983 against Defendants County of
Jackson, Mississippi, Mike Wright, Wendy Nevals, and Mike Ezell. Compl. [1] at
1-7; Mot. to Amend [23] at 1. On January 18, 2017, the Magistrate Judge
conducted an omnibus hearing, which operated as a Spears1 and case management
hearing, to require Plaintiff to elaborate on his claims in order to determine
whether this case or any portion of it should proceed. See Order Setting Omnibus
Hearing [37] at 1-3 (citing 28 U.S.C. §§ 1915A(b) & 1915(e)(2)(B)); see also Tr. [50]
at 1-45.
On May 12, 2017, Defendants filed a Motion for Summary Judgment [63],
seeking dismissal of Plaintiff’s claims. Plaintiff did not respond to the Motion [63].
On December 13, 2017, the Magistrate Judge entered his Report and
Recommendation [65], recommending that Defendants’ Motion for Summary

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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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Judgment [63] be granted, that Plaintiff’s claims against all Defendants be
dismissed with prejudice for failure to state a claim upon which relief can be
granted, and that Plaintiff be issued a strike pursuant to 28 U.S.C. § 1915(g). R. &
R. [31] at 7. The Report and Recommendation [65] was mailed to Plaintiff on
December 13, 2017, via certified mail return receipt requested and was received by
Plaintiff sometime prior to December 22, 2017. Return [66] at 1 (undated return
receipt filed by Clerk of Court on December 22, 2017).
Any objection to the Magistrate Judge’s Report and Recommendation [65]
was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiff has not filed any objection to the Magistrate Judge’s Report and
Recommendation [65], and the time for doing so has passed.
II. DISCUSSION
Where no party has objected to a Magistrate Judge’s report 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 that the Complaint fails to state a claim upon which
relief may be granted and should be dismissed with prejudice are not clearly

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erroneous, nor are they an abuse of discretion or contrary to law. The Court will
adopt the Magistrate Judge’s Report and Recommendation [65] as the opinion of
this Court to the extent it recommends dismissal with prejudice of Plaintiff’s claims
for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii), and this civil action will be dismissed with
prejudice. Plaintiff has been given notice of the inadequacy of his Complaint and
has had an opportunity to respond, but Plaintiff has not done so.
The Magistrate Judge’s Report and Recommendation [65] will be modified to
the extent it recommends that Defendants’ Motion for Summary Judgment [63] be
granted. Because the Court has not proceeded beyond the pleading stage, it need
not consider the merits of the Motion [63], and Defendants’ Motion for Summary
Judgment [63] is rendered moot.

Because the dismissal of this action will be for

failure to state a claim upon which relief may be granted, rather than based upon
Defendants’ Motion for Summary Judgment, such dismissal counts as a strike
under 28 U.S.C. § 1915(g). But see Brown v. Megg, 857 F.3d 287, 292 (5th Cir.
2017) (vacating strike where some claims proceeded beyond pleading stage, but
failed at summary judgment).
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [65] of United States Magistrate Judge John C. Gargiulo, entered
in this case on December 13, 2017, is ADOPTED IN PART and MODIFIED IN
PART, as stated herein.

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IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s claims
are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief
can be granted, and this dismissal for failure to state a claim counts as a STRIKE
under 28 U.S.C. § 1915(g).
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion for
Summary Judgment [63] filed by Defendants County of Jackson, Mississippi, Mike
Wright, Wendy Nevals, and Mike Ezell on May 12, 2017, is DENIED AS MOOT.
A separate final judgment will be entered pursuant to Federal Rule of Civil
Procedure 58.
SO ORDERED AND ADJUDGED, this the 12th day of January, 2018.

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

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