Galloway v. Gardinier et al

Filing 9

ORDER ADOPTING 7 REPORT AND RECOMMENDATION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 11/23/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
BERT JEROME GALLOWAY,
Plaintiff,
VS.
WILLIAM P. GARDINIER, ET AL.,
Defendants.

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No. 16-2663-JDT-cgc

ORDER ADOPTING REPORT AND RECOMMENDATION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On August 15, 2016, Plaintiff Bert Jerome Galloway, a resident of Memphis, Tennessee,
filed a pro se complaint on the form used for commencing an action pursuant to 42 U.S.C. § 1983,
accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) United States
Magistrate Judge Charmiane D. Claxton granted leave to proceed in forma pauperis on November
8, 2016, and issued a Report and Recommendation (“R&R”) in which she recommended the Court
dismiss the case sua sponte for failure to state a claim. (ECF No. 7.) Plaintiff filed a timely
objection on November 16, 2016. (ECF No. 8.)
Plaintiff has sued Seneca Foods Corporation and it’s Director of Consumer Affairs, William
P. Gardinier. He alleges he became seriously ill after eating from a can of green beans manufactured
by Seneca that contained a foreign metal object. (ECF No. 1 at PageID 2.) Plaintiff further alleges
that Gardinier “failed to send [him] the proper claim sheet to present and resolve this claim at the
company level.” (Id. at PageID 3.) Plaintiff alleges the incident has made him afraid to eat canned

green beans. (ECF No. 1-1 at PageID 5.) He contends the Defendants’ actions violated his
constitutional rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments and seeks
compensation in the amount of $45 million. (ECF No. 1 at PageID 4.)
Magistrate Judge Claxton found that the complaint fails to adequately allege how the
Defendants’ actions violated his constitutional rights. “A § 1983 plaintiff may not sue purely private
parties.” Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Thus, “[i]n order to be subject
to suit under § 1983 claim, defendant’s actions must be fairly attributable to the state.” Collyer v.
Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). Plaintiff does not explain how the Defendants acted
under color of law such that their actions can be attributed to the state or local government.
Therefore, the Magistrate Judge concluded the complaint does not state a plausible claim under
§ 1983.
The Court agrees with Magistrate Judge Claxton’s conclusion and ADOPTS the R&R.
Accordingly, the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim on which relief may be granted.
Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a), the Court
CERTIFIES that an appeal by Plaintiff would not be taken in good faith and DENIES leave to
appeal in forma pauperis. Accordingly, if Petitioner files a notice of appeal, he must also pay the
entire $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit
in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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