Johnson v. Gulfport Police Department
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 44 Report and Recommendations. This civil action is dismissed without prejudice. Motion to Dismiss and Motion for Summary Judgment 31 filed by City of Gulfport is granted. A separate judgment will be entered in accordance with this Order as required by Federal Rule of Civil Procedure 58. Signed by District Judge Halil S. Ozerden on 8/25/17 (PKS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ROBERT P. JOHNSON, III
CITY OF GULFPORT; HARRISON
COUNTY, MISSISSIPPI; TROY
PETERSON, Sheriff of Harrison
County; EVAN HUBBARD; and
WAYNE PAYNE, II
CIVIL NO.: 1:16cv139-HSO-JCG
ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION , GRANTING DEFENDANT CITY OF
GULFPORT’S MOTION  TO DISMISS OR FOR SUMMARY JUDGMENT,
AND DISMISSING PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
BEFORE THE COURT is the Report and Recommendation  of United
States Magistrate Judge John C. Gargiulo, entered in this case on August 3, 2017.
The Magistrate Judge recommended that this case be dismissed without prejudice
for failure to prosecute. R. & R.  at 1. The Magistrate Judge further
recommended that Defendant City of Gulfport’s Motion  to Dismiss or for
Summary Judgment be granted and that summary judgment be entered in favor of
Defendant because Plaintiff has not demonstrated a basis for municipal liability
under 42 U.S.C. § 1983. Id.
Plaintiff Robert Johnson, III (“Plaintiff”) has not filed any objection to the
Report and Recommendation , and the time for doing so has passed. Where a
party fails to file specific objections, the district court reviews the report and
recommendations for findings and conclusions that are clearly erroneous or
contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
After thoroughly reviewing the Magistrate Judge’s Report and Recommendation
, the pending Motion , the record, and relevant legal authority, the Court
finds that the Magistrate Judge’s Report and Recommendation  is neither
clearly erroneous nor contrary to law, and should be adopted as the finding of this
Court. Defendant City of Gulfport’s Motion  to Dismiss or for Summary
Judgment should also be granted, and this case should be dismissed without
I. FACTS AND PROCEDURAL HISTORY
Proceeding pro se, Johnson initiated this action pursuant to 42 U.S.C. § 1983
on April 27, 2016, naming the Gulfport Police Department as a Defendant. At the
time, Plaintiff was housed at the Harrison County Adult Detention Center
(“HCADC”) in Gulfport, Mississippi, following his January 21, 2016, arrest for
malicious mischief and resisting arrest. See Compl.  at 1; Resp. to Order  at 1.
Plaintiff alleged that his constitutional rights were violated when Gulfport Police
Department K-9 officer Sgt. Wayne Payne (“Sgt. Payne”) released a canine during
the arrest, resulting in wounds to both of Plaintiff’s arms. Compl.  at 4; Resp. to
Order  at 1. Plaintiff alleges that he received improper medical care, that he
developed a staph infection, that he is disfigured and has lost motor skills in his
hands, and that both arms now require surgery. See Compl.  at 4; Resp. to Order
 at 1; Resp. to Order  at 1.
On June 28, 2016, the Court issued an Order  replacing the Gulfport
Police Department with the proper Defendant, the City of Gulfport (“the City”). On
August 3, 2016, Plaintiff amended his Complaint  to assert claims against
Harrison County, Mississippi; Troy Peterson, Sheriff of Harrison County; Major
Evan Hubbard, Warden of HCADC; and Sgt. Payne, seeking to hold Defendants
liable for failure to train, excessive force, unsanitary living conditions,
overcrowding, and inadequate medical care at HCADC. See Resp. to Order  at
The City filed its Motion  to Dismiss or for Summary Judgment on
November 2, 2016, arguing that Plaintiff has failed to state a claim for relief against
it because he has not satisfied his burden of showing that the alleged constitutional
violations occurred pursuant to an official policy or custom of the City. Mem. Supp.
Mot.  at 2-3. Plaintiff did not file a response to the Motion . On April 7,
2017, the Court issued an Order to Show Cause  directing Plaintiff to file a
response to the City’s Motion  by April 28, 2017. The Order to Show Cause 
was mailed to Plaintiff at East Mississippi Correctional Facility (“EMCF”), the most
recent address on file with the Court, but was returned as undeliverable. See
Returned Mail .
The Court then scheduled an omnibus hearing for June 28, 2017, and issued
a Writ of Habeas Corpus ad Testificandum to the Warden at EMCF to produce
Plaintiff for the hearing. See Order Setting Omnibus Hearing ; Writ of Habeas
Corpus ad Testificandum . The Court received an email from EMCF on June
22, 2017, advising that Plaintiff was no longer housed at EMCF, but had been
released with probation to Harrison County. R. & R.  at 3. Plaintiff did not
appear at the omnibus hearing. Id.; Minute Entry June 28, 2017. The Court issued
an Order to Show Cause  requiring Plaintiff to file a response by July 12, 2017,
showing why this case should not be dismissed for failure to prosecute after Plaintiff
failed to appear at the omnibus hearing and did not abide by the numerous Orders
of the Court requiring him to keep the Court apprised of his address and further
failed to respond to the City’s Motion . The Order  was mailed to Plaintiff at
EMCF, his last known address, but was again returned as undeliverable by the
correctional facility. See Returned Mail . Plaintiff did not respond to the Order
to Show Cause .
As a result of Plaintiff’s failure to keep the Court apprised of his current
address, his failure to appear at the omnibus hearing, and his failure to respond to
Court Orders, on August 3, 2017, the Magistrate Judge entered a Report and
Recommendation  that Plaintiff’s case be dismissed for failure to prosecute. R.
& R.  at 1. The Magistrate Judge further recommended that Defendant City of
Gulfport be granted summary judgment because Plaintiff’s claims that the City “is
responsible for its police department and also responsible for it[s] jail” are based on
impermissible theories of respondeat superior and vicarious liability. Id. at 8
(quoting Resp. to Order  at 1). The Magistrate Judge determined that, even if
Plaintiff could establish that his constitutional rights were violated, his § 1983
claims against the City are subject to dismissal because he has not shown that any
such constitutional violations were caused by the existence of a municipal policy or
The docket indicates that a copy of the Report and Recommendation  was
sent to EMCF via certified mail on August 3, 2017, and an acknowledgement of
receipt was returned on August 9, 2017, signed for by someone at EMCF other than
Plaintiff on August 7, 2017. See Acknowledgment of Receipt . To date, Plaintiff
has submitted no written objections nor has he updated his address with the Court.
Standard of Review
Where no party has objected to a magistrate judge’s proposed findings of fact
and recommendations, the Court need not conduct a de novo review of the proposed
findings of fact and recommendations. See 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 need only review the proposed findings of fact and recommendation
and determine whether it is either clearly erroneous or contrary to law. United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
1. Plaintiff’s claims against all Defendants will be dismissed for failure to
This Court has the authority to dismiss an action for Plaintiff=s failure to
prosecute or to comply with any order of the Court under Federal Rule of Civil
Procedure 41(b), and under its inherent authority to dismiss an action sua sponte.
See Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962); McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988) (per curiam). The Court must be able “to clear
[its] calendars of cases that have remained dormant because of the inaction or
dilatoriness of the parties seeking relief . . . so as to achieve the orderly and
expeditious disposition of cases.” Link, 370 U.S. at 630-31. “The power to invoke
this 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. Id. at 629-30.
Plaintiff did not comply with several Orders entered by the Magistrate Judge
even after being warned numerous times that failure to do so would result in the
dismissal of his case. See, e.g., Order  at 2; Order  at 1; Order  at 1; Order
 at 3; Order  at 1; Order  at 2. Plaintiff did not appear at the omnibus
hearing and did not respond to the Order to Show Cause  requiring him to file a
response showing why this case should not be dismissed for failure to prosecute
after his failure to appear. Plaintiff has not contacted the Court since he last filed a
Change of Address  with the Court on September 30, 2016, updating his address
to EMCF. Such inaction presents a clear record of delay and an indication that
Plaintiff no longer wishes to pursue this lawsuit. See Berry v. CIGNA/RSI-CIGNA,
975 F.2d 1188, 1191 (5th Cir. 1992). The record demonstrates that lesser sanctions
than dismissal would not prompt diligent prosecution. Id. at 1191-92.
Having conducted the required review, the Court finds that the Magistrate
Judge’s Report and Recommendation  is neither clearly erroneous nor contrary
to law. The Magistrate Judge properly recommended that Plaintiff’s claims should
be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff’s failure
to prosecute and to comply with the Court’s numerous Orders warning him that
failure to keep the Court apprised of his current address or to comply with any
order of the Court might result in dismissal of this lawsuit.
2. The City of Gulfport is entitled to summary judgment on Plaintiff’s § 1983
Federal Rule of Civil Procedure 56(a) states that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). The movant bears the initial burden of identifying those portions of
the pleadings and discovery on file, together with any affidavits, which they believe
demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-25 (1986). If the movant carries this burden, the burden
shifts to the non-moving party to show that summary judgment should not be
granted. Id. at 324-25.
42 U.S.C. § 1983 imposes liability upon any person who, acting under the
color of state law, deprives another of federally protected rights. Municipalities are
deemed “persons” amenable to suit under § 1983. Monell v. Dep’t of Social Servs. of
New York, 436 U.S. 658, 690-91 (1978). However, “a municipality cannot be held
liable solely because it employs a tortfeasor—or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. For
a municipality to be held liable under § 1983, there must be “proof of three
elements: a policymaker; an official policy or custom; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell, 436 U.S. at 694).
Plaintiff has not objected to the Magistrate Judge’s findings that his claims
for alleged constitutional deprivations against the City of Gulfport are based on
impermissible theories of respondeat superior, and that Plaintiff has not shown the
alleged violations resulted from any policy, practice, or custom of the City. See R. &
R.  at 8. These findings are not clearly erroneous, an abuse of discretion, or
contrary to law. Without evidence of any policy, practice, or custom of the City of
Gulfport, Plaintiff’s § 1983 claims against the City fail as a matter of law. See
Piotrowski, 237 F.3d at 578. The Magistrate Judge’s Report and Recommendation
 will be adopted as the finding of this Court, Defendant City of Gulfport’s
Motion  to Dismiss or for Summary Judgment will be granted, and this case will
be dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion 
to Dismiss or for Summary Judgment filed by Defendant City of Gulfport is
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Report and
Recommendation  of United States Magistrate Judge John C. Gargiulo, entered
in this case on August 3, 2017, is adopted in its entirety as the finding of this Court,
and this civil action is DISMISSED WITHOUT PREJUDICE. A separate
judgment will be entered in accordance with this Order as required by Federal Rule
of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 25th day of August, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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