Opinion
Case No. 13-cv-13097
08-31-2015
MERLIN HILL, Plaintiff, v. CAROL WALKER and FERRY WALKER, Defendants.
Magistrate Judge Patricia T. Morris
ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF'S COMPLAINT
On July 9, 2013, Plaintiff Merlin Hill filed a pro se Complaint alleging Defendants Carol and Ferry Walker, two of his relations, converted or destroyed his property. ECF No. 1. Hill filed an amended complaint on June 23, 2014. ECF No. 26. On February 9, 2015, Defendants filed an Amended Motion for Summary Judgment. ECF No. 53. In the motion they argue that Hill's case should be dismissed because one of the Defendants, Carol Walker, possessed a valid power of attorney for Hill that allowed her to "control, use, sell or otherwise dispose of his personal property as she saw fit." Defs.' Mot. Summ. J. 16, ECF No. 53. Defendants also argue that a number of the actions that Hill alleges they took against his property were actually done by non-parties to the lawsuit. Id. at 17. On February 5, 2014, all pretrial matters were referred to Magistrate Judge Charles E. Binder. ECF No. 8. On May 5, 2014, the case was reassigned from Judge Binder to Magistrate Judge Patricia T. Morris. See Text-only Order of May 5, 2014.
The case was entered on this Court's docket on July 18, 2013, after it was transferred from the Southern District of Mississippi. --------
On July 31, 2015, Judge Morris issued a comprehensive report recommending that Defendants' motion be granted and Plaintiff's Complaint be dismissed. Rep. & Rec. 1, ECF No. 72. Judge Morris concluded that "Plaintiff has not raised a material issue of fact" because "the evidence shows that Defendant Carol Walker acted pursuant to a valid power of attorney, and Defendant Ferry Walker assisted her." Id. at 36. Thus, "[b]ecause the power of attorney authorized her actions, it precludes Plaintiff's conversion claim." Id. Judge Morris also went on to address Hill's contentions concerning real property, which, she observed, cannot be encompassed by his conversion claim. Id. at 37. Nevertheless, Judge Morris found that "under any theory, there would not be a material dispute concerning Plaintiff's central contention that Defendants forced his signature." Id. This is so because Hill's self-serving statements and unattested affidavits do not overcome the presumption of authenticity that attaches to a notarized deed with a certificate of acknowledgement. Id. at 40.
Although the Magistrate Judge's report explicitly stated that the parties to this action may object to and seek review of the recommendation within fourteen days of service of the report, neither Plaintiff nor Defendant filed any objections. The election not to file objections to the Magistrate Judge's report releases the Court from its duty to independently review the record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation, ECF No. 72, is ADOPTED.
It is further ORDERED that Defendants Carol and Ferry Walker's Amended Motion for Summary Judgment, ECF No. 53, is GRANTED.
It is further ORDERED that Plaintiff's Complaint, ECF Nos. 1 & 26, is DISMISSED with prejudice.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: August 31, 2015
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on August 31, 2015.
s/Karri Sandusky
Karri Sandusky, Acting Case Manager