Diabate v. Delta Airline et al

Filing 43

ORDER adopting Report and Recommendation 37 . Based on the foregoing, and on all of the files, records, and proceedings herein, the Court OVERRULES plaintiff Amadou C. Diabate's objection 39 and ADOPTS the December 3, 2013 R&R 37 . Accordi ngly, IT IS HEREBY ORDERED THAT: 1. The complaint 1 is DISMISSED as follows: a. The motion to dismiss of defendant TSA 6 is GRANTED. Diabate's claims against TSA are DISMISSED WITHOUT PREJUDICE. b. Diabate's claims against defenda nt Delta Airline are DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m). 2. Diabate's motion to amend the complaint 27 is DENIED. 3. Diabate's motions to stay [16, 34, 35] are DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on January 7, 2014. (CLG)

]UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AMADOU C. DIABATE,

Case No. 13-CV-0918 (PJS/JJK)

Plaintiff,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION

DELTA AIRLINE and TSA,
Defendants.

Amadou C. Diabate, pro se.
Ana H. Voss, UNITED STATES ATTORNEY’S OFFICE, for defendant TSA.
This matter is before the Court on the objection of plaintiff Amadou C. Diabate to the
December 3, 2013 Report and Recommendation (“R&R”) of Magistrate Judge Jeffrey J. Keyes.1
In that R&R, Judge Keyes recommends that Diabate’s claims against defendant “Delta Airline”
(“Delta”) be dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to formally serve a copy of
the summons and complaint upon Delta within 120 days after the complaint was filed. Judge
Keyes also recommends that Diabate’s claims against defendant “TSA” (the Transportation
Security Administration) relating to the damage of his property be dismissed for failure to
exhaust administrative remedies, as is required by the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b). See 28 U.S.C. § 2675. Finally, Judge Keyes recommends that Diabate’s
discrimination claim against TSA be dismissed because the government has not waived its
1

Judge Keyes has also ordered that Diabate’s motion to amend his complaint and each of
Diabate’s motions to stay be denied. It is unclear whether Diabate objects to the denial of those
motions. In any event, a magistrate judge’s ruling on nondispositive motions may be reversed
only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R.
Civ. P. 72(a). Upon review, the Court finds that Judge Keyes’s denial of these nondispositive
motions was neither clearly erroneous nor contrary to law.

sovereign immunity with respect to that claim. The Court has conducted a de novo review. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court adopts the R&R.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, the Court
OVERRULES plaintiff Amadou C. Diabate’s objection [ECF No. 39] and ADOPTS the
December 3, 2013 R&R [ECF No. 37]. Accordingly, IT IS HEREBY ORDERED THAT:
1.

The complaint [ECF No. 1] is DISMISSED as follows:
a.

The motion to dismiss of defendant TSA [ECF No. 6] is GRANTED.
Diabate’s claims against TSA are DISMISSED WITHOUT PREJUDICE.

b.

Diabate’s claims against defendant Delta Airline are DISMISSED
WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 4(m).

2.

Diabate’s motion to amend the complaint [ECF No. 27] is DENIED.

3.

Diabate’s motions to stay [ECF Nos. 16, 34, & 35] are DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 7, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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