Berry et al v. Simms et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS, re: 37 Report and Recommendations and dismissing Plaintiffs' remaining claims without prejudice for failure to prosecute and to abide by the Court's Orders. Signed by District Judge Halil S. Ozerden on 5/14/18 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SCOTT BERRY and JENNIFER
BERRY, Individually and on Behalf
of the Minor Children C.W.B., R.L.C.,
C.C., A.A.C., and C.D.B.

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v.
FEGEE SIMMS, Individually and as
Agent for Mississippi Department of
Human Services, and JOHN AND
JANE DOES 1-10

PLAINTIFFS

Civil No. 1:17cv81-HSO-JCG

DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S [37] REPORT
AND RECOMMENDATION AND DISMISSING PLAINTIFFS’ REMAINING
CLAIMS WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
AND TO ABIDE BY THE COURT’S ORDERS
This matter comes before the Court on the Report and Recommendation [37]
of United States Magistrate Judge John C. Gargiulo, entered in this case on April
13, 2018. Based upon the Magistrate Judge’s review of the record and relevant
legal authority, he recommended that Plaintiffs’ remaining claims be dismissed
pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiffs’ failure to prosecute
and to abide by the Court’s Orders. R. & R. [37] at 4. Plaintiffs have not objected
to the Report and Recommendation [37]. For the reasons that follow, the Court
finds that the Report and Recommendation [37] should adopted in its entirety as
the finding of this Court, and that Plaintiffs’ remaining claims should be dismissed
without prejudice.
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I. BACKGROUND
On March 17, 2017, Plaintiffs filed a Complaint through counsel advancing
claims against Defendant Fegee Simms, individually and as agent for the
Mississippi Department of Human Services (“MDHS”), pursuant to 42 U.S.C. §
1983.

Compl. [1] at 11-15.

The Complaint alleged that Defendants violated

Plaintiffs’ constitutional rights to be free from unreasonable search and seizure
under the Fourth Amendment to the United States Constitution, and their rights to
due process and family integrity under the Fourteenth Amendment. Id. at 12-14.1
Upon MDHS’s Motion [15] to Dismiss, Plaintiffs’ claims against MDHS and Simms
in her official capacity were dismissed. See Order [32] at 8. The claims against
Simms in her individual capacity remained, and Simms filed a Second Motion [21]
to Dismiss2 seeking dismissal of all claims asserted against her.

This Motion [21]

remains pending.
This case is presently scheduled for trial on the Court’s August 2018 trial
calendar. See Case Mgmt. Order [14] at 4. On February 8, 2018, Plaintiffs’
counsel moved to withdraw [33], a request in which both Plaintiffs joined [34], [35].
On March 6, 2018, the Magistrate Judge entered an Order [36] granting the Motion
to Withdraw [33] and allowing Plaintiffs until April 6, 2018, to either (1) employ
private counsel and have that counsel enter a written notice of appearance, or (2)
notify the Clerk of Court, in writing, that Plaintiffs would be representing

The Complaint sets forth a Count II, IV, and V, but no Count I or III.
Before Simms was represented by counsel, she filed a pro se Motion [7] to Dismiss, which
was later denied as moot after her counsel of record filed this Second Motion [21]. See Oct.
20, 2017, Text Order.
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themselves. Order [36] at 1. The Magistrate Judge warned that “[s]hould
Plaintiffs fail to either retain new counsel or notify the Clerk of Court that they will
be representing themselves, their claims will be subject to dismissal.” Id.
Plaintiffs have not responded to the Magistrate Judge’s March 6, 2018, Order, and
have not filed anything in the record of this case since that time.
The Case Management Order [14] entered on September 7, 2017, set a
settlement conference for April 12, 2018.

On March 22, 2018, the Magistrate

Judge entered a Reminder Notice of the settlement conference, warning the parties
that they must physically appear at the settlement conference or potentially face
sanctions.

Plaintiffs failed to appear at the April 12, 2018, settlement conference

without contacting the Court. On April 13, 2018, the Magistrate Judge entered a
Report and Recommendation [37], recommending that Plaintiffs’ remaining claims
be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute and obey orders of the Court. Copies of the Report and Recommendation
[37] were mailed to Plaintiffs at their address of record via certified mail, return
receipt requested, and also by regular first class United States mail.

Neither

envelope has been returned to the Court.
Any objection to the Magistrate Judge’s Report and Recommendation [37]
was due within fourteen (14) days of service. L.U. Civ. R. 72(a)(3). To date,
Plaintiffs have not filed any objection to the Magistrate Judge’s Report and
Recommendation [37], and the time to do so has passed.

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II. DISCUSSION
Where no party has objected to the 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 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 [37] as the opinion of this Court, and Plaintiffs’ remaining
claims will be dismissed without prejudice for Plaintiffs’ failure to prosecute and to
abide by the Court’s Orders. It is apparent to the Court that Plaintiffs no longer
wish to pursue this case, and dismissal is warranted.3
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [37] of United States Magistrate Judge John C. Gargiulo, entered

Even if dismissal under Rule 41(b) were not warranted, the Court would grant Simms’
Second Motion [21] to Dismiss. Simms invokes qualified immunity from suit and argues
that the Complaint fails to state a claim plausible on its face such that it should be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs have not
pleaded specific facts that both allow the Court to draw the reasonable inference that
Simms is liable for the harm Plaintiffs have alleged, and that would defeat Simms’
qualified immunity. Nor have Plaintiffs sought leave to amend their Complaint.
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in this case on April 13, 2018, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiffs’
remaining claims are DISMISSED WITHOUT PREJUDICE for Plaintiffs’ failure
to prosecute and to abide by the Court’s Orders. A separate final judgment will be
entered pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 14th day of May, 2018.

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

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