Petty v. Byers et al

Filing 15

ORDER ACCEPTING 14 Memorandum and Recommendations, and Defendants' 8 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. (See order for details.) FURTHER ORDERED that Plaintiff shall have 60 days from the entry of this Order to perfect service of process as to Defendant Byers. Signed by District Judge Martin Reidinger on 3/3/2017. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00237-MR-DLH

RICHIE PETTY,
Plaintiff,
vs.
BILLY BYERS, in his official and
individual capacity, RODNEY FITCH,
in his official and individual capacity,
ALAN NORMAN in his official
capacity as SHERIFF OF
CLEVELAND COUNTY, ASCENSION
INSURANCE AGENCY, INC., as
surety, and LIBERTY MUTUAL
INSURANCE COMPANY, as surety,
Defendants.
_______________________________

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ORDER

THIS MATTER is before the Court on the Defendants’ Motion to
Dismiss [Doc. 8] and the Magistrate Judge’s Memorandum and
Recommendation [Doc. 14] regarding the disposition of that motion.
Pursuant to 28 U.S.C. § 636(b) and the standing Orders of Designation
of this Court, the Honorable Dennis L. Howell, United States Magistrate
Judge, was designated to consider the Defendants’ motion to dismiss and to
submit a recommendation for its disposition.

On February 1, 2017, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing conclusions of law in support of a
recommendation regarding the motion to dismiss. [Doc. 14]. The parties
were advised that any objections to the Magistrate Judge’s Memorandum
and Recommendation were to be filed in writing within fourteen (14) days of
service. The period within which to file objections has expired, and no written
objections to the Memorandum and Recommendation have been filed.
After a careful review of the Magistrate Judge’s Recommendation, the
Court finds that the proposed conclusions of law are consistent with current
case law. Accordingly, the Court hereby accepts the Magistrate Judge’s
recommendation that the motion to dismiss be granted in part and denied in
part.
IT IS, THEREFORE, ORDERED that the Memorandum and
Recommendation [Doc. 14] is ACCEPTED, and the Defendants’ Motion to
Dismiss [Doc. 8] is GRANTED IN PART and DENIED IN PART. Specifically,
the Defendants’ Motion to Dismiss [Doc. 8] is GRANTED as follows:
(1) The Plaintiff’s § 1983 claims against Sheriff
Norman and the § 1983 claims against Defendants
Byers and Fitch in their official capacities are hereby
DISMISSED WITHOUT PREJUDICE;

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(2) The Plaintiff’s § 1983 claims for excessive
force asserted against Defendant Fitch in his
individual capacity are DISMISSED;
(3) The Plaintiff’s claims against Defendant
Ascension Insurance Agency, Inc. are DISMISSED;
and
(4) The Plaintiff’s claims arising under state law for
assault and battery against Defendant Fitch are
DISMISSED.
IT IS FURTHER ORDERED that in all other respects, the Defendants’
Motion to Dismiss [Doc. 8] is DENIED.
IT IS FURTHER ORDERED that the Plaintiff shall have sixty (60) days
from the entry of this Order to perfect service of process as to Defendant
Byers.
IT IS SO ORDERED.

Signed: March 3, 2017

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