Fogleman v. Three Rivers Towing et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 19 Report and Recommendations. Plaintiff Jeremy Shane Fogleman's claims against Defendants are dismissed with prejudice. Plaintiff is assessed a strike pursuant to 28 USC 1915(g). A separate judgment will be entered in accordance with this Order, as required by Rule 58 of the Federal Rules of Civil Procedure. Signed by District Judge Halil S. Ozerden on 2/27/17 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JEREMY SHANE FOGLEMAN
v.

PLAINTIFF
CIVIL NO. 1:16cv186-HSO-JCG

THREE RIVERS TOWING, JOHN DOES I - X, and
JERRY ALLEN, SR.

DEFENDANTS

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION [19] AND DISMISSING
PLAINTIFF’S CLAIMS WITH PREJUDICE
This matter comes before the Court on the Report and Recommendation [19]
of United States Magistrate Judge John C. Gargiulo, entered on February 1, 2017,
recommending that pro se Plaintiff Jeremy Shane Fogleman’s (“Plaintiff”)
Complaint [1] be dismissed for failure to state a claim under 42 U.S.C. § 1983 and
for lack of federal diversity jurisdiction under 28 U.S.C. § 1332, and further
recommending that Plaintiff be assessed a strike pursuant to 42 U.S.C. § 1915(g).
R. & R. [19] at 1-5.

Defendant Jerry Allen, Sr., has filed a Response [23]

supporting the Report and Recommendation. Plaintiff has not filed an objection
and time for doing so has passed. After due consideration of the Report and
Recommendation [19], the record, and relevant legal authority, the Court finds that
the Report and Recommendation should be adopted as the finding of this Court, and
that Plaintiff’s claims should be dismissed with prejudice.

I.

BACKGROUND

On June 2, 2016, Plaintiff, proceeding pro se and in forma pauperis, filed a
Complaint [1] asserting claims against Defendants Three Rivers Road, John Does I
– X, and Jerry Allen, Sr. (“Defendants”) ostensibly pursuant to 42 U.S.C. § 1983.
On February 1, 2017, the Magistrate Judge entered a Report and
Recommendation [19], recommending that Plaintiff’s Complaint be dismissed for
failure to state a claim under 42 U.S.C. § 1983 in that no Defendant was acting
under color of state or federal law as to any claim alleged by Plaintiff. For these
reasons, the Magistrate Judge concluded that the Complaint failed to state a claim
under Section 1983.
Alternatively, in the event Plaintiff was somehow attempting to assert a
claim against Defendants pursuant to the Court’s federal diversity jurisdiction
under 28 U.S.C. § 1332, the Magistrate Judge recommended dismissal because the
damages allegedly suffered by Plaintiff are less than the jurisdictional minimum
amount in controversy of $75,000.00. Finally, the Magistrate Judge recommended
that Plaintiff be assessed a strike pursuant to 42 U.S.C. § 1915(g) for filing a
frivolous and malicious Complaint. R. & R. [19] at 1-5.
A copy of the Report and Recommendation was mailed to Plaintiff at his
address of record via certified mail on February 1, 2017, and the Acknowledgment
of Receipt [20] was filed on February 6, 2017. Plaintiff has not objected to the
Report and Recommendation, and the time for doing so has passed. On February

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10, 2017, Defendant Jerry Allen, Sr., filed a Response [23] that did not raise any
objection to the Report and Recommendation.1
II.

DISCUSSION

Where no party has objected to a magistrate judge’s proposed findings of fact
and recommendation, the Court need not conduct a de novo review of it. 28 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection
is made.”). In such cases, the Court applies the “clearly erroneous, abuse of
discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the
Magistrate Judge’s findings are not clearly erroneous, nor are they an abuse of
discretion or contrary to law. This Court will adopt the Report and
Recommendation and dismiss this case for the reasons stated by the Magistrate
Judge.

Defendant’s Response [23] reiterates what he stated in his Answer [18],
specifically that he was called by the Gulfport Police Department on or about July 8,
2015, to tow the vehicle at issue and was “ordered by the Gulfport Police to hold the
car b/c they had to take fingerprints, pictures[,] etc.” Response [23] at 1.
Apparently after the police released the vehicle, Defendant sold the vehicle at
auction in September 2015 after having followed “all procedures to notify owner
(sic),” and then the legal requirements to sell the “abandoned” vehicle at auction.
Id. at 2-4. Defendant submits documentation to support his version of events. The
Court finds that Defendant’s interaction with the Gulfport Police Department was
insufficient, standing alone, to create a presumption that Defendants were acting
under color of state law.
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III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Magistrate
Judge’s Report and Recommendation [19], entered in this case on February 1, 2017,
is adopted as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff Jeremy
Shane Fogleman’s claims against Defendants are hereby DISMISSED WITH
PREJUDICE.
IT IS, FURTHER, ORDERED AND ADJUDGED that this Civil Action is
DISMISSED WITH PREJUDICE and Plaintiff is assessed a strike pursuant to 28
U.S.C. § 1915(g). A separate judgment will be entered in accordance with this
Order, as required by Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 27th day of February, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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