Lloyd v. City of Newport News, Virginia et al
Filing
25
OPINION and ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 24 Report and Recommendations. This Court finds no clear error, and hereby ADOPTS and APPROVES the en tirety of the findings and recommendations set forth in the R&R. It is therefore ORDERED that the Sheriff's motion to dismiss be GRANTED in part, and DENIED, in part. ECF No. 10. The Court hereby DISMISSES: (1) all of Plaintiff's claims aga inst the Sheriff in his official capacity; (2) Plaintiff's claims under 42 U.S.C. § 1983 against the Sheriff in his individual capacity; and (3) Plaintiff's state law claims against the Sheriff for simple negligence. After dismissing s uch matters, the only claim remaining against the Sheriff is Plaintiff's state law gross negligence claim. Plaintiff is hereby ORDERED to file a brief demonstrating why the claims remaining in this case should not also be dismissed. Plaintiff is hereby ORDERED to SHOW CAUSE, within twenty-one days of the date of this Opinion and Order, why this Court should not: (1) dismiss this action against defendant "Jane Doe" based on Plaintiff's failure to timely identify and serve such defendant; and (2) decline to exercise supplemental jurisdiction and dismiss the remaining state-law claim against the Sheriff pursuant to 28 U.S.C. § 1367 (c) (3).(bgra)
. FILED
UNITED
STATES
DISTRICT
EASTERN DISTRICT
COURT
MAR 2 0 2015
OF VIRGINIA
Newport News Division
:.
. V*.
STARLA JEAN LLOYD,
Plaintiff,
v.
ACTION NO.
GABE MORGAN,
4:14cvl07
Sheriff for the City
of Newport News,
and
JANE DOE, Deputy Sheriff for the
City of Newport News,
Defendants.
OPINION
and
ORDER
This matter is currently before the Court on a motion to dismiss
filed by Defendant Gabe Morgan, the Sheriff for the City of Newport
News, Virginia ("the Sheriff").
This Court previously referred
such motion to a United States Magistrate Judge,
pursuant to the
provisions of 28 U.S. C. § 636 (b) (1) (B) for report and recommendation.
The Magistrate Judge assigned to this case held a hearing on the
pending motion,
and on
February 20,
2015,
issued a Report
and
Recommendation ("R&R") recommending that the Sheriff's motion to
dismiss be GRANTED in part, and DENIED, in part.
ECF No. 24.
Each
party was expressly advised in the R&R of the right to file objections
and the time period for filing such objections.
The objection period
now having expired, and this Court having received no objections from
either party,
this matter is now ripe for review.
Pursuant to federal statute, after a Magistrate Judge issues
an R&R,
proposed
"any party may serve and file written objections"
findings
and
recommendations
set
fourteen (14) days after service of the R&R.
forth
therein
to the
within
28 U.S.C. § 636(b) (1) .
"The Federal Magistrates Act requires a district court to 'make a
de novo determination of those portions of the [magistrate judge's]
report or specified proposed findings or recommendations to which
objection is made.'"
416 F.3d 310, 315
Diamond v. Colonial Life & Accident Ins. Co.,
(4th Cir.
(alteration in original) .
2005)
(quoting 28 U.S.C.
§ 636(b)(1))
As to the portions of the R&R that no party
has challenged through advancing a "'specific written objection,'
[a]
district
court
[is]
free
to adopt
the
magistrate
recommendation . . . without conducting a de novo review."
316.
judge's
Id. at
As to these unchallenged portions, the reviewing court need
only "'satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.'"
Id. at 315
(quoting Fed. R. Civ. P. 72 Advisory Committee's Note).
After carefully considering the Magistrate Judge' s thorough and
detailed R&R, to which no objections were filed,
this Court finds
no clear error, and hereby ADOPTS and APPROVES the entirety of the
findings and recommendations set forth in the R&R.
It is therefore
ORDERED that the Sheriff's motion to dismiss be GRANTED in part, and
DENIED, in part.
DISMISSES:
ECF No. 10.
More specifically, the Court hereby
(1) all of Plaintiff's claims against the Sheriff in his
official capacity;
(2)
Plaintiff's claims under 42 U.S.C.
§ 1983
against the Sheriff in his individual capacity; and (3) Plaintiff's
state law claims against the Sheriff for simple negligence.
After
dismissing such matters, the only claim remaining against the Sheriff
is Plaintiff's state law gross negligence claim.
In light of such ruling, and as discussed below, Plaintiff is hereby
ORDERED to file a brief demonstrating why the claims remaining in
this case should not also be dismissed.
According
to 28 U.S.C.
§ 1367(a),
discussing
supplemental
jurisdiction of the United States district courts:
[I]n any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that
controversy
under
they form part of
Article
III
of
the
the
same case
United
or
States
Constitution.
28 U.S.C.
§ 1367(a).
states
follow:
as
However,
subsection (c) of that same statute
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if-(1) the claim raises a novel or complex issue of State
law,
(2)
the claim substantially predominates over the
claim or claims
over which
the district
court has
original jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367 (c) .
" [U] nder the authority of 28 U.S.C. § 1367(c),
authorizing a federal court to decline to exercise supplemental
jurisdiction, a district court has inherent power to dismiss the case
or,
in cases
conditions
removed from State court,
set
forth
in
§
1367(c)
for
supplemental jurisdiction have been met."
to
remand,
declining
provided the
to
exercise
Hinson v. Norwest Fin-
South Carolina, Inc., 239 F.3d 611, 617 (4th Cir. 2001) .
In making
the determination regarding whether to retain jurisdiction,
the
Fourth Circuit has recognized that section 1367(c) provides district
courts with "wide latitude in determining whether or not to retain
jurisdiction over state claims when all federal claims have been
extinguished."
Shanaghan v.
Cahill,
58 F.3d 106,
110
(4th Cir.
1995).
Here,
Plaintiff failed to object to the Magistrate Judge's
recommendation dismissing all claims against the Sheriff except the
state law gross negligence claim, and this Court has adopted such
recommendation.
Moreover, even though Plaintiff's alleged injuries
occurred in August of 2011, Plaintiff's federal complaint,
filed
three years later in August of 2014, does not identify by name the
Deputy Sheriff whose actions were allegedly the direct cause of
Plaintiff's injuries.
In the more than six months that the instant
action has been pending in this Court, Plaintiff has likewise failed
to identify the individual listed as "Jane Doe" in the complaint,
and thus,
does not appear to have complied with federal service
requirements.
See Fed. R. Civ. P. 4 (m) ("If a defendant is not served
within 120 days after the complaint is filed,
the court--on motion
or on its own after notice to the plaintiff --must dismiss the action
without prejudice against that defendant or order that service be
made within a specified time.
for the failure,
But if the plaintiff shows good cause
the court must extend the time for service for an
appropriate period.").
Accordingly, Plaintiff is hereby ORDERED to SHOW CAUSE, within
twenty-one days of the date of this Opinion and Order, why this Court
should not:
(1)
dismiss this action against defendant
based on Plaintiff's
failure
to
timely
"Jane Doe"
identify and serve such
defendant; and (2) decline to exercise supplemental jurisdiction and
dismiss the remaining state-law claim against the Sheriff pursuant
to 28 U.S.C.
§ 1367 (c) (3) .
The Clerk is DIRECTED to send a copy of this Opinion and Order
to all
counsel
IT
IS
SO
of record.
ORDERED.
VB©
/s/
Mark
S.
Davis
United States District Judge
Norfolk,
Virginia
March cJQ , 2015
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