Hellmers v. Pearl River County Sheriff's Department
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 39 Report and Recommendations and Dismissing plaintiff's claims, Signed by District Judge Halil S. Ozerden on 11/16/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
ROBERT EMMETT HELLMERS, III
CIVIL NO. 1:16cv157-HSO-JCG
VAN GIADROSICH et al.
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION  AND DISMISSING PLAINTIFF’S CLAIMS
This matter comes before the Court on the Report and Recommendation 
of United States Magistrate Judge John C. Gargiulo, entered on October 5, 2017.
The Magistrate Judge recommended that the Complaint  filed by pro se Plaintiff
Emmett Hellmers III (“Hellmers”) be dismissed for failure to prosecute and also
that summary judgment be granted against Hellmers for failing to exhaust
administrative remedies. R. & R.  at 4-5. After due consideration of the Report
and Recommendation, the record, and relevant legal authority, the Court finds that
the Report and Recommendation should be adopted as the finding of this Court, and
that Hellmers’ claims in this action should be dismissed.
On May 9, 2016, Hellmers filed a Complaint  against Defendant Pearl
River County Sheriff’s Department pursuant to 42 U.S.C. § 1983. Hellmers filed
this suit while confined as a pretrial detainee at the Lenoir Rowell Criminal Justice
Center in Pearl River County, Mississippi. Hellmers complained that the conditions
of his confinement were unconstitutional and that an illegal search warrant was
executed against his phone.
Hellmers later added Defendants Van Giadrosich, Rob Williams, Cory
Mataya, Lisa Wayne, and Joann Graham. Pl.’s Resps. . This Court
issued an Order  on March 30, 2017, dismissing Defendant Pearl River County
Sheriff’s Department and denying Hellmers’ request to add Lenoir Rowell Criminal
Justice Center and two state court judges as Defendants. To the extent that
Plaintiff sought release from incarceration, those claims were severed and a new
habeas case opened.
With regard to Hellmers’ § 1983 claims, the Court set an omnibus hearing for
August 23, 2017, which was to serve as a case management and Spears hearing.
Order . The Court ordered that Hellmers must elaborate on his claims at the
hearing “so that it may be determined whether this case or any portion of it should
proceed.” Id. at 1. A Writ of Habeas Corpus Ad Testificandum  was issued to
the Warden of Lenoir Rowell Criminal Justice Center to produce Hellmers for the
omnibus hearing. Prior to the hearing, the Deputy Clerk received a telephone call
from Lenoir Rowell Criminal Justice Center advising that Hellmers had been
released. R. & R.  at 3.
Hellmers did not appear at the omnibus hearing. The Court issued an Order
 to Show Cause, directing Hellmers to file a response showing cause why his
failure to appear at the hearing or to follow the Court’s numerous orders requiring
him to keep the Court apprised of his current address should not result in the Court
dismissing his case pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute. The Court warned Hellmers that failure to file a timely response to the
Order to Show Cause would result in a recommendation that this case be dismissed.
Hellmers did not respond.
On August 21, 2017, the Defendants filed a Motion  for Judgment on the
Pleadings, or in the Alternative for Summary Judgment. Defendants contended
that Hellmers failed to exhaust administrative remedies. Mot.  at 2.
Defendants submitted affidavits attesting that Hellmers’ prison file was reviewed
and revealed that Hellmers filed no grievances while at Lenoir Rowell Criminal
Justice Center, despite being advised of those procedures during booking. Affs. [31-3].
On October 5, 2017, the Magistrate Judge entered a Report and
Recommendation , recommending that Hellmers’ claims be dismissed for failure
to prosecute and failure to exhaust administrative remedies. The Magistrate Judge
found a “clear pattern of delay and contumacious conduct,” as Hellmers did not keep
the Court apprised of his mailing address, did not file a response to Defendants’
Motion, did not appear at the omnibus hearing, and did not respond to the posthearing Order to Show Cause. R. & R.  at 4-5. The Magistrate Judge
recommended dismissal of the claims under Federal Rule of Civil Procedure 41(b)
for failure to prosecute. Id. at 5. The Magistrate Judge also recommended that
Defendants were entitled to summary judgment on grounds that Hellmers’ claims
are barred by 42 U.S.C. § 1997e(a), which requires prisoners to exhaust available
administrative remedies prior to filing an action with respect to prison conditions.
The Magistrate Judge found that Defendants had carried their initial summary
judgment burden by providing affidavits regarding Hellmers’ failure to file a
grievance and also noted that Hellmers submitted nothing to rebut Defendants’
evidence. R. & R.  at 7.
A copy of the Report and Recommendation was mailed to Hellmers at his
address of record via certified mail and was delivered on October 10, 2017.
Acknowledgment of Receipt . Hellmers has not objected to the Report and
Recommendation, and the time for doing so has passed.
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 or 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. The Court will adopt the Magistrate Judge's Report
and Recommendation  as the opinion of this Court. Defendants’ Motion  for
Judgment on the Pleadings, or in the Alternative for Summary Judgment will be
granted, and this civil action will be dismissed without prejudice for Hellmers’
failure to prosecute and exhaust available administrative remedies.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Report and Recommendation , entered in this case on October 5, 2017,
is adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Robert
Emmett Hellmers, III’s 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 16th day of November, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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