Foster v. Springfield Police Department et al

Filing 4

ORDER: The Report and Recommendation (d/e 3 ) is ADOPTED in its entirety. This case is DISMISSED WITHOUT PREJUDICE, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim over which this Court has subject matter jurisdiction. Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (d/e 2 ) is DENIED AS MOOT. This case is CLOSED. (SEE WRITTEN ORDER.) Entered by Judge Sue E. Myerscough on 7/24/2018. (GL, ilcd)

E-FILED

Tuesday, 24 July, 2018 12:55:53 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KENNETH WAYNE FOSTER,

)
)
Plaintiff,
)
)
v.
)
)
SPRINGFIELD POLICE DEPARTMENT, )
OFFICER SULLIVAN, OFFICER
)
WILKERSON, and OFFICER ELMORE, )
)
Defendants.
)

No. 18-CV-3140

ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Tom SchanzleHaskins (d/e 3) entered on June 20, 2018. Judge Schanzle-Haskins
recommends that this Court dismiss this case for failure to state a
claim over which this Court has subject matter jurisdiction..
Objections to the Report and Recommendation were due 14
days after service of a copy of the Report and Recommendation.
The Clerk of the Court mailed a copy of the Report and
Recommendation to Plaintiff on June 20, 2018. When a party must
act within a specified time after being served and service is made by
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mail, three days are added to the time period. Fed. R. Civ. P. 6(d).
Therefore, objections were due on July 9, 2018.1 Plaintiff did not
file any objections.
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court
Amay accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with
instructions.@ Fed. R. Civ. P. 72(b)(3). The Court reviews de novo
any part of the Report and Recommendation to which a proper
objection has been made. Fed. R. Civ. P. 72(b)(3). AIf no objection
or only partial objection is made, the district court judge reviews
those unobjected portions for clear error.@ Johnson v. Zema Sys.
Corp., 170 F. 3d 734, 739 (7th Cir. 1999) (also noting that a party
who fails to object to the report and recommendation waives
appellate review of the factual and legal questions).
Judge Schanzle-Haskins found this Court did not have
jurisdiction over Plaintiff’s state law claims for willful and wanton
negligence and official misconduct by a municipal police officer.
Plaintiff, who alleges he is a resident of Illinois, does not allege a
plausible claim that the Defendant Officers are citizens of a state
1

Seventeen days from June 20, 2018 falls on Saturday, July 7, 2018.

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other than Illinois. Therefore, jurisdiction under 28 U.S.C. § 1332
is lacking. Judge Schanzle-Haskins further found that Plaintiff
does not allege a violation of his rights under federal law or the U.S.
Constitution because he has no federal or Constitutional right that
would obligate the Defendant Officers to arrest someone or write a
police report. Finally, Judge Schanzle-Haskins found that Plaintiff
alleges no facts on which Plaintiff could base a claim directly
against the Defendant City of Springfield.
After reviewing the Complaint, the Report and
Recommendation, and the applicable law, this Court finds no clear
error.
IT IS THEREFORE ORDERED THAT:
(1)

The Report and Recommendation (d/e 3) is ADOPTED

in its entirety.
(2)

This case is DISMISSED WITHOUT PREJUDICE,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
claim over which this Court has subject matter jurisdiction.
(3)

Plaintiff’s Application to Proceed in District Court

Without Prepaying Fees or Costs (d/e 2) is DENIED AS MOOT.
(4)

This case is CLOSED.
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ENTERED: July 24, 2018
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH

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