Wilson v. Pension Benefit Guarnty Corp. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS 13 - IT IS ORDERED AND ADJUDGED that, Plaintiff David Wilson's Objection 15 is OVERRULED, and the Report and Recommendation 13 of United States Magistrate Judge John C. Gargiulo, entered in this case on October 24, 2017, is ADOPTED in its entirety as the finding of this Court. IT IS, FURTHER, ORDERED AND ADJUDGED that, this case is DISMISSED WITHOUT PREJUDICE. A separate final judgment will be entered in accordance with Federal Rule of Civil Procedure 58. Signed by District Judge Halil S. Ozerden on 1/8/2018 (ND)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
REV. DAVID WILSON
CIVIL ACTION NO. 3:17cv562-HSO-JCG
PENSION BENEFIT GUARANTY CORP., et al.
ORDER OVERRULING PLAINTIFF’S  OBJECTION, ADOPTING
MAGISTRATE JUDGE’S  REPORT AND RECOMMENDATION, AND
DISMISSING PLAINTIFF’S CLAIMS WITHOUT PREJUDICE
This matter comes before the Court on Plaintiff David Wilson’s Objection 
to the Report and Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered in this case on October 24, 2017. Based upon Plaintiff’s
contumacious conduct in failing appear at two duly-noticed screening hearings,
failing to obey Court Orders, and failing to prosecute, the Magistrate Judge
recommended that this case be dismissed without prejudice. R. & R.  at 3.
After thoroughly reviewing Plaintiff’s Objection , the Magistrate Judge’s Report
and Recommendation , the record, and relevant legal authority, the Court finds
that Plaintiff’s Objection  should be overruled, that the Magistrate Judge’s
Report and Recommendation  should be adopted as the finding of the Court, and
that this case should be dismissed without prejudice.
On July 13, 2017, Plaintiff David Wilson (“Plaintiff” or “Wilson”) filed a pro se
Complaint  in this Court along with a Motion  for Leave to Proceed In Forma
Pauperis. It is unclear from Plaintiff’s handwritten Complaint  what claims he is
asserting, but his pleading references the Employee Retirement Income Security
Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”) pertaining to a pension plan, or
plans, in which Plaintiff purportedly participated until 1986. See Compl.  at 4-6.
On August 10, 2017, the Magistrate Judge entered an Order  Setting
Screening Hearing “in order to allow Plaintiff the opportunity to more definitely
and clearly state the factual and legal bases for his claims” and to permit the Court
to determine whether Plaintiff should be permitted to proceed in forma pauperis or
whether any portion of the Complaint should be dismissed under 28 U.S.C.
§ 1915(e)(2). Order  at 1.
The Magistrate Judge scheduled the screening hearing for September 27,
2017, id. at 2, and provided notice of the same to Plaintiff via certified mail, see
Acknowledgment  at 1. The Magistrate Judge cautioned Plaintiff that “if he fails
to appear at the screening hearing, this case may be dismissed without prejudice
and without further notice to Plaintiff.” Order  at 2. Plaintiff received a copy of
the Order setting the screening hearing on August 14, 2017. See Acknowledgment
 at 1.
On August 22, 2017, Plaintiff filed a Motion  to Object to Screening
Hearing with Prejudice. Plaintiff objected to the scheduling of a screening hearing,
arguing that he was entitled to proceed in forma pauperis under 28 U.S.C. § 1915,
and demanded a bench trial. Mot.  at 2-5. On August 25, 2017, the Magistrate
Judge denied Plaintiff’s Motion  and notified Plaintiff that the screening hearing
would proceed on September 27, 2017. See Aug. 25, 2017, Text Order. Plaintiff did
not appear for the September 27, 2017, screening hearing. See Sept. 27, 2017,
On September 28, 2017, the Magistrate Judge entered a Show Cause Order
 directing Plaintiff to file a written response on or before October 12, 2017,
“showing cause why his failure to appear at the screening hearing and abide by the
Court’s Orders should not result in dismissal of this suit for failure to prosecute.”
Order  at 1. Plaintiff was “specifically warned that failure to comply with this
Order by timely filing a written response will result in an immediate
recommendation to the District Judge that this case be dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 41(b).” Id. at 1-2. This Order was
mailed to Plaintiff via certified mail at his address of record, see id. at 2, and
Plaintiff received the Order on September 30, 2017, see also Acknowledgment  at
On October 4, 2017, Plaintiff filed a “Motion to Show Causes [sic] Order,”
which the Clerk docketed as a Response  to the Show Cause Order . Plaintiff
cited Federal Rule of Evidence 803 and argued that certain exhibits1 demonstrated
the factual and legal bases of his claims. Resp.  at 2-3. Other than Plaintiff’s
vague, conclusory statement that “he is unable to travel at this time,” id. at 4, his
Response offered no justification for his failure to appear at the hearing.
It is unclear to which exhibits Plaintiff was referring, as no exhibits were attached
to his Response .
On October 10, 2017, the Magistrate Judge scheduled a second screening
hearing for October 19, 2017, and warned Plaintiff that if he failed to appear, the
Magistrate Judge would “immediately recommend to the District Judge that this
case be dismissed without prejudice for failure to comply with Court orders.” Order
 at 2. Plaintiff received the Order  via certified mail some time prior to
October 16, 2017. See Acknowledgment  at 1 (signed, but undated, return
receipt filed by the Clerk of Court on October 16, 2017).
On October 17, 2017, Plaintiff filed a Motion  for Extension of Time.
Plaintiff claimed that he was “suffering from back problem” and was unable to
attend the screening hearing because of lack of transportation. Mot.  at 2.
Plaintiff complained that the Court failed to acknowledge the evidence of his income
and requested a 90-day extension. Id. at 2-3.
The Magistrate Judge denied Plaintiff’s Motion  finding that
Plaintiff’s asserted lack of transportation is not grounds for rescheduling
the screening hearing for a date ninety days in the future. His
transportation options are presumably the same as they were when he
received notice of the first screening hearing, and the Court has been
given no reason to believe they will materially change in ninety days’
Plaintiff’s allegations of back problems are similarly
unsubstantiated and do not absolve Plaintiff of his obligations to
prosecute this case. This obligation requires that he be able to appear at
the Courthouse for in-person hearings.
Order  at 2. The screening hearing remained scheduled for October 19, 2017.
Id. at 3.
Plaintiff did not appear at the second screening hearing. See Oct. 19, 2017,
Minute Entry. On October 24, 2017, the Magistrate Judge entered the present
Report and Recommendation  detailing Plaintiff’s conduct and recommending
that this case be dismissed without prejudice for Plaintiff’s failure to obey Orders of
the Court and failure to prosecute. R.&R.  at 3.
On November 6, 2017, Plaintiff submitted an Objection  to the Report and
Recommendation. The Objection  does not address the Magistrate Judge’s
Report and Recommendation , but instead seems to argue the merits of
Plaintiff’s case, or at least his request to proceed in forma pauperis. Obj.  at 1-4.
On November 6, 2017, Plaintiff also filed a Notice of Appeal , which was
docketed by the United States Court of Appeals for the Fifth Circuit. The appeal
remains pending in that Court. See Wilson v. Pension Benefit Guaranty Corp., No.
17-60756 (5th Cir. Nov. 8, 2017).
Despite Plaintiff’s filing of the Notice of Appeal , this Court has not been
divested of jurisdiction because the Report and Recommendation  Plaintiff seeks
to appeal is a non-appealable interlocutory order. See, e.g., United States v. Green,
882 F.2d 999, 1001 (5th Cir. 1989) (holding that an appeal from a non-appealable
order does not transfer jurisdiction to the court of appeals and “does not render void
for lack of jurisdiction acts of the trial court taken in the interval between filing of
the notice and dismissal of the appeal”); United States v. Mock, 604 F.2d 336, 341
(5th Cir. 1979) (holding that a notice of appeal from nonappealable order had no
effect on the trial court’s jurisdiction to proceed with appellant’s trial); Rafiq v.
Lopez, No. CV H-15-2210, 2017 WL 367976, at *1 (S.D. Tex. Jan. 25, 2017) (holding
that magistrate judge’s Memorandum and Recommendation was a non-appealable
order, and that appeal therefrom does not divest the court of jurisdiction to review
Plaintiff’s objections).2 The Court therefore retains jurisdiction to consider
Plaintiff’s Objection to the Report and Recommendation.
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).
When a party files a written objection, the Court “make[s] a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “Such review
means that this Court will examine the entire record and will make an independent
See also, e.g., JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., 707 F.3d 853,
860 (7th Cir. 2013) (holding that the magistrate judge’s “ruling was a nonappealable order,
so the district court’s jurisdiction over the supplementary proceedings was intact
notwithstanding Asia Pulp’s attempted appeal from her order”); 16A Charles Alan Wright
& Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3949.1 (4th ed.) (“The weight of authority
holds that an appeal from a clearly non-appealable order fails to oust district court
authority . . . .”).
assessment of the law.” Lambert v. Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013
WL 786356, *1 (S.D. Miss. Mar. 1, 2013). In conducting a de novo review, the Court
is not “required to reiterate the findings and conclusions of the magistrate judge.”
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
While Plaintiff has filed a written Objection , it contains no specific
objections to any portion of the Report and Recommendation . Plaintiff argues
the merits of his claim and in forma pauperis application, rather than addressing
the Magistrate Judge’s findings and recommendation as to dismissal. The Court
therefore finds that it should apply the clearly erroneous, abuse of discretion, and
contrary to law standard of review. See 28 U.S.C. § 636(b)(1); Wilson, 864 F.2d at
1221. However, even under a de novo review, the result would not change.
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. Alternatively, even after a de novo review of the
record, the Court agrees with the conclusions reached by the Magistrate Judge.
The United States Court of Appeals for the Fifth Circuit has applied 28 U.S.C.
§ 1915(e)(2) to non-prisoners, see, e.g., Newsome v. EEOC, 301 F.3d 227, 231 (5th
Cir. 2002); Patel v. United Airlines, 620 F. App’x 352, 352 (5th Cir. 2015), and
because Plaintiff has attempted to proceed in forma pauperis, his Complaint is
subject to judicial screening, see, e.g., 28 U.S.C. § 1915(e)(2)(B); Rodgers v.
Lancaster Police & Fire Dep’t, 819 F.3d 205, 207 (5th Cir. 2016).3
Federal Rule of Civil Procedure 41(b) permits a court to dismiss an action
upon its own motion for failure to prosecute. See Fed. R. Civ. P. 41(b); Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1190 (5th Cir. 1992). “This authority is based
on the ‘courts’ power to manage and administer their own affairs to ensure the
orderly and expeditious disposition of cases.’” Berry, 975 F.2d at 1190 (quoting Link
v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)).
Plaintiff intentionally failed to appear at two duly-noticed screening
hearings, even after he was warned in advance of each hearing that failure to
appear may result in dismissal without further notice to him. See Order  at 2;
Order  at 2. Plaintiff has yet to offer an adequate, sufficiently supported
explanation for his failures to appear. There exists a clear record of delay and
contumacious conduct by Plaintiff, which supports the conclusion that sanctions
lesser than dismissal would not prompt diligent prosecution and would prove futile.
Plaintiff’s failures to appear at the hearings were caused by his own conduct and
have resulted in the waste of judicial resources. 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 Plaintiff’s failure to
abide by the Court’s Orders and failure to prosecute.
See also Bohannan v. Doe, 527 F. App’x 283, 290 (5th Cir. 2013) (holding
that a district court must screen complaints for claims that are frivolous, that fail to
state a claim, or that seek money from an immune defendant under 28 U.S.C. §
1915(e)(2)(B), even for non-prisoner plaintiffs).
Plaintiff’s Objection  will be overruled, and the Magistrate Judge’s Report
and Recommendation  will be adopted as the finding of this Court. Plaintiff’s
claims will be dismissed without prejudice.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Plaintiff David
Wilson’s Objection  is OVERRULED, and the Report and Recommendation 
of United States Magistrate Judge John C. Gargiulo, entered in this case on
October 24, 2017, is ADOPTED in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, this case is
DISMISSED WITHOUT PREJUDICE. A separate final judgment will be entered
in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 8th day of January, 2018.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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