Collins v. Ladner et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION for 36 Report and Recommendation entered on September 26, 2018. Plaintiff's complaint is dismissed without prejudice for failure to obey Orders of the Court and for failure to prosecute. A separate judgment will be entered in accordance with this Order as required by Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Halil S. Ozerden on 10/31/18 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DENZEL MILTON COLLINS

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v.
WADE LADNER, et al.

PLAINTIFF
Civil No. 1:17cv88-HSO-JCG
DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [36] AND DISMISSING PLAINTIFF’S COMPLAINT
[1] WITHOUT PREJUDICE
This matter comes before the Court on the Report and Recommendation [36]
of United States Magistrate Judge John C. Gargiulo, entered in this case on
September 26, 2018. The Magistrate Judge recommended that Plaintiff’s
Complaint be dismissed without prejudice for failure to obey Orders of the Court
and for failure to prosecute. After due consideration of the Report and
Recommendation [36], Plaintiff’s Complaint, the record, and relevant legal
authority, the Court finds that the Magistrate Judge’s Report and Recommendation
should be adopted as the Order of the Court.
I. RELEVANT BACKGROUND
On January 12, 2017, Plaintiff Denzel Milton Collins (“Plaintiff”), acting pro
se, filed his Complaint [1] against Correctional Officer Wade Ladner and Hancock
County, advancing claims pursuant to 42 U.S.C. § 1983. Compl. [1] at 1. Plaintiff
alleged that Ladner tasered him unprovoked. Id. After another officer handcuffed
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him, Defendant Ladner allegedly threw him onto the concrete floor causing Plaintiff
to hit his head. Id. at 4-6. Plaintiff claims that he suffered injuries to his wrists,
ankle, leg, head, and toe. Id. Because of his injuries, Plaintiff seeks monetary
damages and asks for Ladner’s termination and prosecution for aggravated assault.
Id.
Plaintiff has notified the Court of a change of address numerous times. See
Notice [6] [10] [20] [24] [25]. After his last notice on January 26, 2018, the Court
issued an Order [26] Setting Omnibus Hearing and a corresponding Writ of Habeas
Corpus ad Testificandum [27]. Each were mailed to Plaintiff and to the Warden of
Hancock County Public Safety Complex, who acknowledged receipt on January 29,
2018. Acknowledgement of Receipt [28]. Plaintiff failed to appear for the scheduled
hearing on March 20, 2018.
The Court then issued an Order [32] to Show Cause, ordering Plaintiff to
show cause in writing why his failure to appear at the hearing should not result in
dismissal of the suit for failure to prosecute. Order [32]. The Order was returned
as undeliverable to Plaintiff’s address of record, which indicated that he was no
longer at the Hancock County Adult Detention Center. Mail [33] Returned as
Undeliverable. Although his response was due April 3, 2018, Plaintiff has not
responded or updated his address. Order [32]. On May 10, 2018, the Court entered
a Text Order that was also subsequently returned as undeliverable to Plaintiff.
The Court has repeatedly warned Plaintiff that failure to “advise the Court of
a change of address or failure to comply with any Order of the Court will be deemed

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as a purposeful delay and contumacious act by Plaintiff and may result in the
dismissal of this case.” Order [11] at 3; see Notice [3] of Assignment; Order [4]
Setting PSP Deadline; Notice [9] of Assignment; Order [12] Requiring Response;
Order [26] Setting Omnibus Hearing. In its April 3 Order [32] to Show Cause, the
Magistrate Judge again warned Plaintiff that failure to comply “will result in an
immediate recommendation to the District Judge that this case be dismissed with
prejudice.”
Accordingly, on September 26, 2018, the Magistrate Judge entered a Report
and Recommendation [36] recommending that Plaintiff’s Complaint [1] be dismissed
without prejudice for failure to obey Orders of the Court and failure to prosecute. R.
& R. [36] at 1. The Report and Recommendation advised Plaintiff that he had 14
days to file any objections. Id. at 4. The Report and Recommendation was mailed
to Plaintiff via certified mail at his address of record on September 26, 2018, and
was returned as undeliverable on October 11, 2018. Mail Returned [37]. To date,
no objections have been filed.
II. DISCUSSION
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 and recommendations to which
objection is made.”). In such cases, the Court applies the “clearly erroneous, abuse

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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 Report and Recommendation is neither clearly erroneous nor
contrary to law, and that the Magistrate Judge thoroughly considered all issues.
The Report and Recommendation should be adopted as the opinion of the Court.
III. CONCLUSION
The Court finds that the Magistrate Judge properly recommended that
Plaintiff Denzel Milton Collins’ Complaint [1] be dismissed without prejudice. The
Report and Recommendation [36] will be adopted as the opinion of the Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Report and Recommendation [36] entered in this case on September 26,
2018, is adopted as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’ Denzel
Milton Collins’ Complaint [1] is DISMISSED WITHOUT PREJUDICE for failure
to obey Orders of the Court and for failure to prosecute. 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 31st day of October, 2018.

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

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