House v. Buckhalter et al

Filing 30

ORDER rejecting 28 Report and Recommendations and remanding. Signed by Honorable David C. Bramlette, III on December 4, 2014. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
SCOTTY S. HOUSE

PLAINTIFF

VS.

CIVIL ACTION NO: 5:13-cv-195-DCB-MTP

SUE BUCKHALTER, et al.

DEFENDANTS

ORDER REMANDING CASE
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation of November 7, 2014 [docket
entry

no.

28].

Therein,

Judge

Parker

recommends

that

the

plaintiff’s civil rights suit be dismissed without prejudice.
Having reviewed the Report and Recommendation, the plaintiff’s
objections thereto, and applicable statutory and case law, the
Court finds and orders as follows:
Plaintiff Scotty S. House was incarcerated in the Wilkinson
County Correctional Facility at the time he filed his pro se
complaint, but was subsequently released before Judge Parker set an
omnibus hearing. The hearing was set for September 30, 2014, at
10:00am, and House did not appear when his case was called. House
did, however, arrive late, and Judge Parker advised him that the
hearing would be reset. The omnibus hearing was reset for November
5, 2014, at 10:00am, and, once again, House did not appear. Unlike
the first missed hearing, House did not arrive late.

1

Two days after the missed hearing, Judge Parker entered his
Report and Recommendation. Based on House’s two failures to make an
ordered appearance, Judge Parker sua sponte invoked his authority
to recommend dismissal of an action for failure to prosecute under
Federal Rule of Civil Procedure 41(b). House filed objections1 to
Judge Parker’s Report and Recommendation stating that he was
incarcerated at the time of the second hearing and giving notice of
his change of address. The address given and the return address on
the envelope appear to match that of the Jasper County Sheriff’s
Office. Defendant Sue Buckhalter has not responded to House’s
objections within the seven day window afforded her under Local
Uniform Civil Rule 72(a)(3).2
Because

the

Court

finds

that

House’s

absence

from

the

rescheduled omnibus hearing would be through no fault of his own,
if he was indeed incarcerated at that time, the Court finds it

1

The filing date for House’s objections according to the
docket is November 24, 2014, which falls outside the fourteen day
window to file objections prescribed by Local Uniform Civil Rule
72(a)(3). However, according to the “prison mailbox rule,” “a pro
se prisoner plaintiff’s written objections to a magistrate’s
report and recommendation are timely filed if they are handed to
prison officials prior to the expiration of the district court’s
deadline.” Thompson v. Raspberry, 993 F.2d 513, 515 (5th Cir.
1993). The envelope is postmarked on November 17, and it appears
to bear a stamp from the clerk’s office with a November 18th
date. Therefore, the Court finds that House’s objections,
assuming arguendo that he was incarcerated, were timely filed.
2

Nor has Buckhalter filed a notice with the Court that she
does not intend to respond, which is required by the same Local
Rule.
2

necessary to remand this case to Judge Parker for further factual
development.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation is
REJECTED in whole.
FURTHER ORDERED that the case is REMANDED to Magistrate Judge
Parker to determine whether plaintiff was incarcerated at the time
of the November 5, 2014, hearing.

SO ORDERED this the 4th day of December 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

3