Rossum v. Kilgore Police Department et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations of the United States Magistrate Judge. Plaintiffs objections (Docket No. 16) are OVERRULED. This case is DISMISSED with prejudice Signed by District Judge Jeremy D. Kernodle on 5/22/2023. (gsm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KEVIN DEYON ROSSUM, #78505,
Plaintiff,
v.
KILGORE POLICE DEPARTMENT,
et al.,
Defendants.

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Case No. 6:23-cv-017-JDK-JDL

ORDER ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Kevin Deyon Rossum filed this civil rights lawsuit pursuant to 42
U.S.C. § 1983 pro se and in forma pauperis as a pretrial detainee in the Gregg
County Jail. The case was referred to United States Magistrate Judge John D.
Love for findings of fact, conclusions of law, and recommendations for the
disposition of the case.
On February 13, 2023, the Magistrate Judge issued a Report recommending
that the case be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915A(b) and
1915(e) due to Plaintiff’s failure to state a claim for which relief can be granted.
Docket No. 9. A copy of this Report was sent to Plaintiff, who has filed written
objections. Docket No. 16.
This Court reviews the findings and conclusions of the Magistrate Judge de
novo only if a party objects within fourteen days of the Report and Recommendation.
28 U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire

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record and makes an independent assessment under the law. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from
ten to fourteen days).
A party objecting to a Magistrate Judge’s Report must specifically identify
those findings to which he objects. Frivolous, conclusory, or general objections need
not be considered by the District Judge. See Nettles v. Wainright, 677 F.2d 404, 410
& n.8 (5th Cir. 1982) (en banc). Furthermore, objections that simply rehash or mirror
the underlying claims addressed in the Report are not sufficient to entitle the party
to de novo review. See U.S. v. Morales, 947 F.Supp.2d 166, 171 (D.P.R. 2013) (“Even
though timely objections to a report and recommendation entitle the objecting party
to de novo review of the findings, ‘the district court should be spared the chore of
traversing ground already plowed by the Magistrate.’”) (internal citations omitted);
see also Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002)
(unpublished) (“However, objections that are merely perfunctory responses argued
in an attempt to engage the district court in a rehashing of the same arguments
set forth in the original petition will not suffice to invoke de novo review of the
magistrate judge’s recommendations.”).
Plaintiff sued the Kilgore Police Department, Kilgore Police Officer Charles
Taylor, and Police Chief Johnathan Gage over Plaintiff’s traffic stop and arrest by
Taylor, which Plaintiff alleged was the result of racial profiling. Docket No. 6. The
Magistrate Judge found that Plaintiff’s claims of racial discrimination were

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conclusory and that he did not allege any facts that would plausibly establish any
racial animus as a cause for his stop or arrest. Docket No. 9 at 6. He also found that
Plaintiff had failed to allege any personal involvement by Chief Gage in the allegedly
discriminatory stop or arrest and that any claim based simply on Gage’s role as
Taylor’s supervisor was not sufficient to establish liability under Section 1983. Id. at
6–7. Finally, the Magistrate Judge found that the Kilgore Police Department is not a
person subject to suit under Section 1983. Id. at 7.
Most of Plaintiff’s objection is devoted to arguing that there was no basis for
his stop or arrest. Docket No. 16. But even that were true, an unfounded stop or
arrest is not necessary a racially discriminatory stop or arrest. As the Magistrate
Judge explained, Plaintiff’s allegations simply do not satisfy the requirements
to state a claim for racial profiling. See Docket No. 9 at 6.
Plaintiff’s objection also raises issues that are immaterial to this matter,
including the alleged mishandling of his uncle’s death in an automobile accident and
the impact upon Plaintiff’s family of his incarceration. Docket No. 16 at 5. None of
those circumstances has any bearing on whether Plaintiff has alleged facts that
would demonstrate that Defendant Taylor had a discriminatory purpose in stopping
and arresting him.
In his objection and a subsequent letter, Plaintiff also discusses Chief Gage’s
role as Taylor’s supervisor and his responding to Plaintiff that Officer Taylor’s actions
had not violated department policy. Docket No. 16 at 7; Docket No. 19. But neither of
those circumstances would be sufficient to make Chief Taylor individually liable

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under Section 1983 or to establish a racially discriminatory policy as required to make
him liable in his official capacity.
The Court has conducted a careful de novo review of the record and the
Magistrate Judge’s proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)
(District Judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”). Upon
such de novo review, the Court has determined that the Report of the United States
Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly,
it is
ORDERED that the Report and Recommendation of the United States
Magistrate Judge (Docket No. 9) is ADOPTED as the opinion of the Court. Plaintiff’s
objections (Docket No. 16) are OVERRULED. This case is DISMISSED
with prejudice pursuant to 28 U.S.C. §§ 1915A and 1915(e) Any pending
motions are DENIED as MOOT.
So ORDERED and SIGNED this 22nd day of May, 2023.

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JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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