Johnson v. City of Biloxi Municipal Court et al
ORDER adopting Report and Recommendations re 105 Report and Recommendations.; denying 106 Motion ; denying 109 Motion for Leave to File. Ordered that this case is dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 10/14/20. (JCH)
Case 1:19-cv-00272-HSO-MTP Document 113 Filed 10/14/20 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
TERRY LEE JOHNSON
CITY OF BILOXI MUNICIPAL
COURT, et al.
Civil No. 1:19cv272-HSO-MTP
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION  AND DISMISSING
CIVIL ACTION WITHOUT PREJUDICE
BEFORE THE COURT is United States Magistrate Judge Michael T.
Parker’s Report and Recommendation  that this matter be dismissed without
prejudice for lack of subject-matter jurisdiction, for failure to prosecute, and for
failure to obey Orders of this Court. See R. & R.  at 1, 6. For the reasons
that follow, the Court finds that the Report and Recommendation  should be
adopted and that this case should be dismissed without prejudice.
On May 9, 2019, pro se Plaintiff Terry Lee Johnson (“Plaintiff” or “Johnson”)
filed a Complaint  in this Court naming as Defendants the City of Biloxi
Municipal Court; Harrison County 2nd Judicial; Justice Court; Bob Payne, State
Prosecutor; and City of Biloxi Mayor. See Compl.  at 1-4. Plaintiff claims that
he has “been wrongfully arrested for 30 years and they do not have the legal
constitutions to do it due to vital record wherefore they or [sic] illegal [sic] waiving
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mine rights to a trial to keep the truth that has lies.” Id. at 4. With respect to
subject-matter jurisdiction, Plaintiff contends that the Court has federal question
jurisdiction over this matter because “the vital static’s [sic] records claiming the
Defendant is ‘Deceased.’” Id. at 3.
In a May 28, 2019, Order  granting Plaintiff’s application to proceed in
forma pauperis (“IFP”), the Magistrate Judge advised Plaintiff that “it is his
responsibility to prosecute this case and that the case cannot proceed until the
Defendants have been served with a summons and the Complaint (ECF. No. 1).”
Order  at 1-2. The Magistrate Judge further informed Plaintiff that “pursuant
to Local Uniform Civil Rule 4(a), it is Plaintiff’s responsibility to prepare the
summons to be served on [each] Defendant and to present the completed summons
to the Clerk of Court for issuance.” Id. at 2. The Magistrate Judge warned
Plaintiff that this case may be dismissed without prejudice if Defendants are not
served within 90 days after the Complaint is filed. See id. (citing Fed. R. Civ. P.
4(m)). Plaintiff did not comply with this Order .
Plaintiff has littered the record with numerous, miscellaneous filings, many
of which reference allegations other than those made in the Complaint and which
mention individuals other than those Defendants named in the Complaint. It
remains unclear whom Plaintiff is trying to sue or what claims he is asserting
The Magistrate Judge has entered several Orders to Show Cause trying to
clarify Plaintiff’s claims and whom he seeks to sue. See, e.g., Orders , , ,
, . Plaintiff has not adequately responded to any of these Orders, and his
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claims remain unclear. The record reflects that the Magistrate Judge has
repeatedly reminded Plaintiff that it is his responsibility to demonstrate the
existence of federal subject-matter jurisdiction, to prosecute this case, to prepare
summonses for Defendants and present them to the Clerk of Court for issuance, to
keep the Court advised of his current address, and to abide by all Orders of the
Court. See, e.g., Order  at 2; Order  at 3; Order  at 2; Order  at 4-6;
Order  at 2; Order  at 1-2; Order  at 1-2. The Magistrate Judge has also
warned Plaintiff on multiple occasions that his failure to comply with these
obligations may be deemed a purposeful and contumacious act resulting in this case
being dismissed. See, e.g., Order  at 3; Order  at 5-6; Order  at 2; Order
 at 1-2; Order  at 1-2.
On June 24, 2020, United States Magistrate Judge Michael T. Parker entered
a Report and Recommendation , recommending that this case be dismissed
without prejudice for lack of subject-matter jurisdiction, for failure to prosecute, and
for failure to obey Orders of this Court. See R. & R.  at 1, 6. The Report and
Recommendation  was mailed to Plaintiff’s address of record. Any objection to
the Magistrate Judge’s Report and Recommendation  was due within fourteen
(14) days of service, see L.U. Civ. R. 72(a)(3), but to date, Plaintiff has not filed any
Where no party has objected to a magistrate judge’s report and
recommendation, the Court need not conduct a de novo review of it.
§ 636(b)(1) (“a judge of the court shall make a de novo determination of those
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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  as the opinion of this Court, and this civil action will be
dismissed without prejudice for lack of subject-matter jurisdiction and for Plaintiff’s
failure to prosecute and to abide by the Court’s Orders.
Plaintiff has filed a number of documents of record since the entry of the
Report and Recommendation , but none are styled as objections. All are
equally incoherent. To the extent those could somehow be construed as Objections,
the result would not change even under a de novo review. “[F]ederal courts are
courts of limited jurisdiction.” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,
1746, reh’g denied, 140 S. Ct. 17 (2019) (quotation omitted). “The burden of
establishing subject matter jurisdiction in federal court rests on the party seeking to
invoke it.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th
Cir. 1998). The authority granted to federal district courts under Article III, § 2, of
the Constitution is limited to those subjects encompassed within a statutory grant
of jurisdiction, such that a district court may not exercise subject-matter
jurisdiction absent a statutory basis. See Home Depot U.S.A., Inc., 139 S. Ct. at
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In this case, it remains unclear whom Plaintiff intends to name as
Defendants and what claims he asserts against each. Despite the plethora of
documents Plaintiff has filed in this case, he has never adequately complied with
the Court’s Orders which have attempted to discover information about his claims.
Although this case having been pending for over 17 months, Plaintiff has never
provided the Court with sufficient information in order for it to ascertain whether it
has subject-matter jurisdiction. Because Plaintiff has not demonstrated that the
Court possesses federal subject-matter jurisdiction as to any claim he is attempting
to assert, dismissal without prejudice is warranted.
Moreover, this Court has the authority to dismiss an action for a plaintiff’s
failure to prosecute under Federal Rule of Civil Procedure 41(b) and under its
inherent authority to dismiss the action sua sponte. See Link v. Wabash R.R., 370
U.S. 626, 630-31 (1962); McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.
1988). The Court must be able to clear its calendars of cases that remain dormant
because of the inaction or dilatoriness of the parties seeking relief, so as to achieve
the orderly and expeditious disposition of cases.
Such a 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. See Link, 370 U.S. at 629-30.
Despite clear and unambiguous directions from the Magistrate Judge,
Plaintiff has never caused summonses to be issued for Defendants and has failed to
comply with many Court Orders, even after being warned numerous times that
failure to do so would be deemed a purposeful delay and contumacious act that may
result in the dismissal of his case. See, e.g., Order  at 2; Order  at 3; Order
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 at 3; Order  at 4-6; Order  at 2; Order  at 1-2; Order  at 1-2.
Such inaction by Plaintiff represents a clear record of intentional delay or
Dismissal is warranted on this basis as well.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this case is
DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction and
for Plaintiff’s failure to prosecute and to abide by the Court’s Orders. All
remaining pending Motions in this case are DENIED WITHOUT PREJUDICE.
A separate final judgment will be entered pursuant to Federal Rule of Civil
SO ORDERED AND ADJUDGED, this the 14th day of October, 2020.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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