McAtee v. Toothman et al
Filing
47
ORDER ADOPTING 45 REPORT AND RECOMMENDATION: 20 , 27 , and 30 Motions to Dismiss are GRANTED; 39 Motion for Summary Judgment is DISMISSED AS MOOT. ORDERS that this case is DISMISSED WITHOUT PREJUDICE and stricken from the Court's docket. Clerk directed to enter judgment. Signed by District Judge Irene M. Keeley on 7/2/13. (c to pro se plaintiff by cert mail)(cc) (Additional attachment(s) added on 7/2/2013: # 1 Certified Mail Return Receipt) (cc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DUANE McATEE,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:13CV18
(Judge Keeley)
F.S. TOOTHMAN, COUNTY OF
HARRISON, DOUG BETLER, KEITH
MARPLE, THOMAS A. BEDELL, and
TRACI M. COOK,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
On
February
1,
2013
the
pro
se
plaintiff,
Duane
McAtee
(“McAtee”), filed a complaint pursuant to 42 U.S.C. § 1983 alleging
violations of his Fourth, Fifth, Sixth, Ninth, and Fourteenth
Amendment rights. (Dkt. No. 1). The Court referred this matter to
United States Magistrate Judge John S. Kaull for initial screening
and a report and recommendation in accordance with LR PL P 2. (Dkt.
No. 22). On February 14, 2013, defendants County of Harrison
(“Harrison County”) and Traci M. Cook, Esq. (“Cook”) moved to
dismiss McAtee’s complaint. (Dkt. No. 20). On February 25, 2013,
defendants Lieutenant Doug Betler (“Betler”) and Officer F.S.
Toothman (“Toothman”) also moved to dismiss the complaint. (Dkt.
No. 25). Defendants Judge Thomas A. Bedell (“Judge Bedell”) and
Magistrate Keith Marple (“Magistrate Marple”) moved to dismiss
McAtee’s complaint on February 25, 2013, as well. (Dkt No. 30).
Then, on April 16, 2013, McAtee filed an Affidavit of Stated Facts
MCATEE V. TOOTHMAN ET AL
1:13CV18
ORDER ADOPTING REPORT AND RECOMMENDATION
Motion for Summary Judgment. (Dkt. No. 39).1
On June 12, 2013, Magistrate Judge Kaull issued an Opinion and
Report and Recommendation (“R&R”), in which he recommended that the
defendants’ motions to dismiss be granted and the plaintiff’s
§ 1983 action be dismissed without prejudice. (Dkt. No. 45). The
magistrate judge determined that McAtee’s complaint failed to state
a claim for which relief could be granted, that he had failed to
allege
a
constitutional
tort,
and
that,
alternatively,
the
individual defendants are entitled either to absolute or qualified
immunity.
Specifically, the Magistrate Judge reasoned that the State of
West Virginia and Commonwealth of Pennsylvania are empowered to
regulate the use of highways within their own borders, see Liberty
Highway Co. v. Michigan Pub. Util. Comm., 294 F. 703, 707 (D. Mich.
1923) (citing Escanaba & Lake Michigan Trans. Co. v. Chicago, 107
U.S. 678 (1883)), and so concluded that McAtee’s claims on that
ground are meritless. As to McAtee’s claims that Judge Bedell and
Magistrate
Marple
had
issued
warrants
for
his
arrest
absent
probable cause, and were therefore liable to him under § 1983, the
Magistrate Judge concluded that those defendants are entitled to
absolute immunity. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978).
1
The Magistrate Judge issued Roseboro notices to McAtee on February
18, 2013 (dkt. no. 24) and February 27, 2013. (Dkt. Nos. 32, 33).
2
MCATEE V. TOOTHMAN ET AL
1:13CV18
ORDER ADOPTING REPORT AND RECOMMENDATION
The Magistrate Judge also concluded that Cook, a prosecutor for the
State of West Virginia, had acted at all times in her official
capacity as a prosecutor, and thus is also entitled to absolute
immunity.
See
(prosecutor
is
Imbler
v.
entitled
Pachtman,
to
absolute
424
U.S.
immunity
409,
when
430
(1976)
performing
prosecutorial duties, rather than investigative or administrative).
The Magistrate Judge also concluded that McAtee had failed to
state a claim against Toothman and Betler for violations of his
Fourth Amendment rights, and, in the alternative, that those
defendants are entitled to qualified immunity. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity shields
government officials from liability in a § 1983 suit as long as
their conduct has not violated “clearly established statutory or
constitutional rights of which a reasonable person would have
known”). Finally, the Magistrate Judge concluded that McAtee had
failed to state a claim under § 1983 against Harrison County
because he had not shown that he was subjected to a constitutional
tort at all, and in any event, that he had not alleged how Harrison
County had participated in the alleged constitutional tort or
tacitly authorized the tortious practice. See Monell v. Dept. of
Social Services, 436 U.S. 658, 691 (1978).
The R&R also specifically warned McAtee that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue. The parties
3
MCATEE V. TOOTHMAN ET AL
1:13CV18
ORDER ADOPTING REPORT AND RECOMMENDATION
did not file any objections.2 Consequently, finding no clear error,
the Court:
(1)
ADOPTS the Report and Recommendation in its entirety (dkt. no.
45);
(2)
GRANTS the motions to dismiss (dkt. nos. 20, 27, and 30);
(3)
DISMISSES AS MOOT McAtee’s Affidavit of Stated Facts Motion
for Summary Judgment (dkt. no. 39); and
(4)
ORDERS that this case be DISMISSED WITHOUT PREJUDICE and
stricken from the Court’s docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: July 2, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
2
The failure to object to the Report and Recommendation not only waives
the appellate rights in this matter, but also relieves the Court of any
obligation to conduct a de novo review of the issue presented. See Thomas
v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d
198, 199-200 (4th Cir. 1997).
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?