Galloway v. Rosenfeld, et al

Filing 12

ORDER adopting 11 Report and Recommendations. Galloway's complaint is dismissed without prejudice. Signed by Judge Samuel H. Mays, Jr on 7/18/2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BERT JEROME GALLOWAY,
Plaintiff,
v.
GARY ROSENFELD, Executive
Officer, Memphis Area Transit
Authority; and MEMPHIS AREA
TRANSIT AUTHORITY,
Defendants.

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No. 17-cv-2637-SHM-cgc

ORDER

Before the Court is the Magistrate Judge’s Report and
Recommendation (the “Report”), dated July 2, 2018.
11.)

(ECF No.

The Report recommends sua sponte dismissal of Plaintiff

Bert Jerome Galloway’s complaint under 28 U.S.C. § 1915.
at 30.) 1

(Id.

Galloway has not filed an objection, and the deadline

to do so has passed.
For the following reasons, the Report is ADOPTED, and
Galloway’s complaint is DISMISSED WITHOUT PREJUDICE.
On September 1, 2017, Galloway filed a pro se “Complaint
for Violation of Civil Rights Under 42 U.S.C. § 1983” against

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number.

Unless otherwise noted, all record citations refer to the PageID

Defendants Gary Rosenfeld, Chief Executive Officer of Memphis
Area Transit Authority, and Memphis Area Transit Authority
(“MATA”) for negligence and “violating [his] civil rights under
the 1st, 5th, 8th, and 14th constitution amendments. . . .”
(ECF No. 1-1 at 4, 5 (“I am now suing [D]efendants . . . for
personal injury to my neck and back and for violating my civil
rights[.]”).
Galloway alleges that he was injured while riding a MATA
bus on April 7, 2017.

(Id.)

Galloway represents that

Defendants “wrongly dismissed [his] claim without proper
‘notice’ . . . [and] den[ied] [him] an opportunity to question
witnesses in this incident.”
what his “claim” was.

(Id.)

Galloway does not explain

He alleges that “[t]his show[s] that

[D]efendants violated [his] due process of law and just
compensation, and equal protection laws under the US
constitution of the 14th amendment.”

(Id.)

Galloway also

alleges that Defendants “neglected to provide seatbelts for the
Plaintiff and passengers as a whole, which resulted [in
Galloway] being injured in the MATA bus crash on 4-7-2017.”
(Id.)
On July 2, 2018, United States Magistrate Judge Charmiane
G. Claxton entered the Report.

(ECF No. 7.)

It recommends

that the Court dismiss Galloway’s complaint sua sponte under 28

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U.S.C. § 1915 without prejudice.

(Id. at 29-30.)

The Report

explains that:
MATA
“is
a
public
transportation
system
established pursuant to state and local law. MATA is
governed by a Board of Commissioners who are appointed
by the City of Memphis Mayor and confirmed by the
Memphis City Council” and the Court will assume, for
purposes of this report and recommendation, that it is
subject to suit under § 1983 as a local government
entity.
. . . .
To demonstrate municipal liability, a plaintiff
“must (1) identify the municipal policy or custom, (2)
connect the policy to the municipality, and (3) show
that his particular injury was incurred due to
execution of that policy.” Alkire v. Irving, 330 F.3d
802, 815 (6th Cir. 2003) (citing Garner v. Memphis
Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993))
. . . .
[T]he complaint does not allege that Plaintiff
suffered any injury because of an unconstitutional
policy or custom of MATA. Plaintiff merely alleges
that a personal injury claim was denied. Therefore, it
is RECOMMENDED that Plaintiff’s claim pursuant to 42
U.S.C. § 1983 be denied without prejudice.
To the extent that Plaintiff is asserting a claim
for personal injuries against MATA pursuant to the
Tennessee Governmental Tort Liability Act, Tenn. Code
Ann. § 29-20-201 et seq., it is RECOMMENDED that the
claim be dismissed without prejudice for lack of
subject matter jurisdiction. Specifically, Plaintiff
has not asserted or demonstrated that diversity
jurisdiction exists.
(Id.)
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.
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See United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

For

dispositive matters, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has
been properly objected to.”
U.S.C. § 636(b)(1).

See Fed. R. Civ. P. 72(b)(3); 28

After reviewing the evidence, the court is

free to accept, reject, or modify the magistrate judge’s
proposed findings or recommendations.

28 U.S.C. § 636(b)(1).

The district court is not required to review -- under a de novo
or any other standard -- those aspects of the report and
recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Galloway has not objected to the Report.
Report is appropriate.

Adoption of the

See Arn, 474 U.S. at 150-51.

For the foregoing reasons, the Report is ADOPTED, and
Galloway’s complaint is DISMISSED WITHOUT PREJUDICE.

So ordered this 18th day of July, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE
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