Mills v. Adams County Sheriff Dept. et al

Filing 74

ORDER adopting Report and Recommendation re 64 . Signed by Honorable David C. Bramlette, III on 10/3/2018 (DW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ANTHONY DUANE MILLS

PLAINTIFF

V.

NO. 5:17-CV-110-DCB-MTP

TRAVIS PATTEN, ET AL.

DEFENDANT

ORDER ADOPTING REPORT AND RECOMMENDATION

This cause is before the Court on Plaintiff Anthony Duane
Mills’s Complaint pursuant to 42 U.S.C. § 1983 [Doc. 1]; and on
United States Magistrate Judge Michael T. Parker’s Report and
Recommendation [Doc. 64], to which no objection was filed by Plaintiff.
This Court ADOPTS the Report and Recommendation, and DISMISSES
certain claims against all defendants WITH PREJUDICE.
Magistrate

Judge

Michael

T.

Parker’s

Report

Recommendation recommends the following:
(1) that Plaintiff’s claims against Matthew Henderson,
Henry Frank, IV, Jerry Brown, Stanley Searcy, Jr., and
Jackie Dennis be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B); and (2) that the failure to investigate
claims against Travis Patten be dismissed. The claims
against Patten for excessive force are not addressed by
this report and recommendation and remain pending.

and

The

Prison

Litigation

Reform

Act

(“PLRA”),

28

U.S.C.

1915(e)(2), applies to prisoner proceedings in forma pauperis and
states that the court shall dismiss the case at any time if it
determines that the action “is frivolous or malicious; fails to
state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2). Mills proceeds in forma pauperis (see Doc.
13, p.1), and therefore, the PLRA applies to this action.
Plaintiff Anthony Duane Mills (“Mills”) alleges he was raped
in March 2016 by Adams County Sheriff Deputy Walter Mackel. Doc.
1. Mills claims that he told various law enforcement officers in
Adams County about the rape. Doc. 1. Magistrate Judge Parker
conducted a Spears1 hearing on the issues, where Mills clarified
that he sues Defendants Travis Patten, Matthew Henderson, Henry
Frank, IV, Jerry Brown, and Stanley Searcy, Jr., for failing to
investigate the rape. Doc. 64. However, “failure to investigate or
prosecute an offense does not give rise to . . . [Section] 1983
liability.” Rolen v. City of Brownfield, Tex., 182 F. App’x 362,
364 (5th Cir. 2006) (citing Piotrowski v. City of Houston, 237
F.3d 567, 582 (5th Cir. 2001)).
Magistrate Judge Parker’s Report and Recommendation states
that Mills clarified at the hearing that he is suing Jackie Dennis,
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The hearing was held
February 20, 2018. Doc. 64.
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a 911 dispatcher, because another officer answered Mills’s 911
call while Jackie Dennis was on a bathroom break. Doc. 64, p.4.
The Report and Recommendation states, “Plaintiff has not stated a
claim

against

Jackie

Dennis

(“Dennis”)

even

with

the

Court

liberally construing his claims. Plaintiff’s own testimony and
allegations against [Dennis] at the hearing demonstrate this claim
against

her

is

frivolous.

The

claim

against

her

should

be

dismissed.” This Court agrees.
Accordingly,
IT IS ORDERED that Magistrate Judge Michael T. Parker’s Report
and Recommendation

[Doc. 64]

is ADOPTED as the findings and

conclusions of this Court;
FURTHER

ORDERED

that

claims

against

Defendants

Matthew

Henderson, Henry Frank, IV, Jerry, Brown, Stanley Searcy, Jr., and
Jackie Dennis are DISMISSED WITH PREJUDICE.
FURTHER

ORDERED

that

the

failure

to

investigate

claims

against Defendant Travis Patten are DISMISSED WITH PREJUDICE. The
claims against Defendant Travis Patten for excessive force are not
addressed by the Report and Recommendation [Doc. 64] and remain
pending.
SO ORDERED, this the 3rd day of October, 2018.
_/s/David Bramlette_________
UNITED STATES DISTRICT JUDGE
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