Blakney v. Subway on Broad Avenue et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 7 Report and Recommendations. 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. Signed by District Judge Halil S. Ozerden on 2/23/2017 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
J.T. BLAKNEY

§
§
v.
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§
SUBWAY ON BROAD AVENUE et al. §

PLAINTIFF
CIVIL NO.: 1:16cv367-HSO-JCG
DEFENDANTS

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [7] AND DISMISSING PLAINTIFF’S CLAIMS
BEFORE THE COURT is the Report and Recommendation [7] of United
States Magistrate Judge John C. Gargiulo, entered in this case on December 21,
2016, recommending that this civil action be dismissed. R. & R. [7] at 1. After
reviewing the record and relevant legal authority, the Court finds that the Report
and Recommendation [7] should be adopted in its entirety as the finding of the
Court, and that Plaintiff’s claims should be dismissed without prejudice.
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a Complaint [1] in this Court on October 17, 2016, seeking
$78.8 billion in damages for fraud, tax evasion, and violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, by
seven Defendants: Subway on Broad Avenue; Fred Dollar Store on West Railroad;
J.B. Pawn Shop on West Railroad; Saw Grass Apartments; Yellow Cab Company;
Memorial Hospital of Gulfport; and Gulfport Fire Department. Compl. [1] at 1.
The Complaint [1] consists of a single page and alleges that Defendant J.B. Pawn
“asked for [Plaintiff’s] social security card and entered it into military with out
giving [Plaintiff] [a] copy of privacy act.” Id. Plaintiff claims that the other six

Defendants imported illegal drugs into Gulfport, Mississippi, without paying taxes.
Id. The Complaint [1] was not accompanied by a RICO statement conforming to
the requirements of Local Uniform Civil Rule 83.8. See id.; R. & R. [7] at 1.
The Court’s November 4, 2016, Order [4] granting Plaintiff permission to
proceed in forma pauperis clearly communicated that Plaintiff was required to file a
RICO statement in conformity with the Local Rules before his lawsuit could
proceed. Order [4] at 1. The Court warned Plaintiff that this case would be
dismissed if he did not file the required RICO statement by December 2, 2016. Id.
at 5. Plaintiff acknowledged receipt of the Order [4] by certified mail, but he did
not file the RICO statement by the deadline, nor did he seek additional time to do
so. R. & R. [7] at 2.
On December 5, 2016, the Court issued an Order to Show Cause [5] advising
Plaintiff that this case would be dismissed pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute if he did not file a RICO statement by
December 16, 2016. Show Cause Order [5] at 2. Plaintiff acknowledged receipt of
the Show Cause Order [5] by certified mail on December 5, 2016.
Acknowledgement of Receipt [6]. Again, Plaintiff did not file a RICO statement by
the deadline or request additional time to do so. R. & R. [7] at 2-3.
The Magistrate Judge entered a Report and Recommendation [7] on
December 21, 2016, recommending that Plaintiff’s case be dismissed without
prejudice for failure to prosecute or to abide by the Court’s Orders requiring
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submission of a RICO statement. Id. at 4. The Magistrate Judge found that
dismissal is warranted because Plaintiff failed to make any attempt to comply with
the Court’s Orders despite being warned that dismissal would result from his
failure to file a RICO statement. Id. at 3. The Magistrate Judge further
concluded that lesser sanctions would not likely prompt diligent prosecution of
Plaintiff’s case. Id. at 8-9.
Plaintiff acknowledged receipt of the Report and Recommendation [7] on
December 23, 2016. Acknowledgement of Receipt [8]. Plaintiff, who is pro se, has
not filed any objection to the Report and Recommendation [7] to date.
II.

ANALYSIS

Where no party has objected to a magistrate judge’s proposed findings of fact
and recommendation, a court need not conduct a de novo review of it.

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, a 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).
Based on the record before this Court, and having conducted the required
review, the Court is of the opinion that the recommendation of the Magistrate
Judge is neither clearly erroneous nor contrary to law.

The Court possesses the

authority to dismiss this action for Plaintiff’s failure to obey orders of the Court and
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to prosecute under Rule 41(b) and under its inherent authority to dismiss an action
sua sponte “so as to achieve the orderly and expeditious disposition of cases.”

Link

v. Wabash R.R., 370 U.S. 626, 630 (1962); accord McCullough v. Lynaugh, 835 F.2d
1126, 1127 (5th Cir. 1988) (“A district court may dismiss an action for failure of a
plaintiff to prosecute or to comply with any order of the court.”).
The Court finds that the Magistrate Judge properly recommended that
Plaintiff’s claims be dismissed.

The Court further finds that, for the reasons stated

herein, the Report and Recommendation [7] of United States Magistrate Judge
John C. Gargiulo entered on December 21, 2016, should be adopted as the finding of
this Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [7] of United States Magistrate Judge John C. Gargiulo entered in
this case on December 21, 2016, is adopted in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, 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 23rd day of February, 2017.

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

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