Opinion
No. 13-2070-JDT-cgc
10-31-2013
CYNTHIA M.P. BURTON, Plaintiffs, v. CITY OF MEMPHIS, ET AL., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER OF PARTIAL DISMISSAL
AND
ORDER CERTIFYING AN INTERLOCUTORY APPEAL
WOULD NOT BE TAKEN IN GOOD FAITH
Plaintiff Cynthia M.P. Burton, a resident of Memphis, Tennessee, filed a pro se civil complaint on February 1, 2013, and a motion for leave to proceed in forma pauperis. (Docket Entries 1 & 2.) The Court subsequently granted leave to proceed in forma pauperis. (D.E. 3.) On October 8, 2013, U.S. Magistrate Judge Charmiane G. Claxton entered a Report and Recommendation for partial dismissal ("R&R") and an order to issue process. (D.E. 7.) Objections to the R&R were due within 14 days, on or before October 22, 2013. See Fed. R. Civ. P. 72(b)(2). However, Plaintiff has filed no objection.
The case was referred to the assigned U.S. Magistrate Judge on March 27, 2013, for case management and handling of all pretrial matters by determination or by report and recommendation, as appropriate. (D.E. 5.)
Plaintiff's complaint alleges that the Defendants, the City of Memphis, the Memphis Police Department ("MPD"), Mayor AC Wharton, and Memphis Police Officer James A. Walton, subjected her to disability discrimination in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Plaintiff also asserts a cause of action under 42 U.S.C. § 1983 and claims of intentional and negligent infliction of emotional distress under Tennessee law.
Magistrate Judge Claxton ordered that process be issued for the City of Memphis on Plaintiff's ADA claim. (D.E. 7 at 4-6.) However, the Magistrate Judge also recommended that all of the remaining claims be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Having reviewed the complaint and the law, the Court agrees with the Magistrate Judge's recommendation. The issuance of a more detailed written opinion is unnecessary. Therefore, the Court ADOPTS the recommendation of the Magistrate Judge. For the reasons set forth in the R&R the claims against the MPD, Mayor Wharton, and Officer Walton are hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
As Magistrate Judge Claxton noted in the R&R, Plaintiff's claims against the MPD are properly construed as claims against the City of Memphis because the MPD is not a separate, suable entity. (D.E. 7 at 5.)
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Because this order of partial dismissal is a non-final order that is not immediately appealable, the Court also CERTIFIES, pursuant to Fed. R. App. P. 24(a), that any interlocutory appeal in this matter by Plaintiff would not be taken in good faith. IT IS SO ORDERED.
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JAMES D. TODD
UNITED STATES DISTRICT JUDGE