Covey et al v. Assessor of Ohio County et al
Filing
58
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: RE 53 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Christopher J. Covey, Lela G. Covey; Granting 32 Motion to Dismiss; Granting 43 Motion to Dismiss; Granting 44 Motion to Dismiss; Granting 52 Motion to Strike ; and Granting 27 Motion to Dismiss. Counts III and IV are dismissed with prejudice; Counts I, II, V, and VI are dismissed without prejudice; civil action is dismissed and stricken from active docket of this Court; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 1/25/13. (soa)(copy to Pltff by cert. mail)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER J. COVEY and
LELA G. COVEY,
Plaintiffs,
v.
Civil Action No. 5:11CV147
(STAMP)
UNITED STATES OF AMERICA,
ASSESSOR OF OHIO COUNTY,
KATHIE HOFFMAN, Head Assessor,
ROY CREWS, Field Deputy,
UNKNOWN ASSESSOR,
OHIO COUNTY SHERIFF,
PATRICK BUTLER, Sheriff,
ALEX ESPEJO, Corporal,
RON WHITE, Deputy,
NELSON CROFT, Lieutenant,
NICHOLE SEIFERT, Officer,
HNK, Unknown Officer,
DLG, Unknown Officer,
DEPARTMENT OF JUSTICEDRUG ENFORCEMENT ADMINISTRATION,
OHIO VALLEY DRUG TASK FORCE,
ROBERT L. MANCHAS, S.A.,
OHIO COUNTY ANIMAL SHELTER,
DOUG McCROSKY, Supervisor
and UNKNOWN DOG WARDENS,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Background
On October 20, 2011, the pro se1 plaintiffs filed this civil
rights action against the above-named defendants pursuant to Bivens
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971).
causes of action.
The complaint also raises a number of state law
The plaintiffs assert that their claims arise
from the following events:
On October 21, 2009, defendant Roy
Crews (“Crews”), an employee of the Ohio County Assessor’s Office,
entered onto the plaintiffs’ property in order to assess it for tax
purposes.
Following his entrance onto the property, defendant
Crews, during his inspection, saw what he believed to be marijuana
in the back patio area of the home.
After making this discovery,
defendant Crews placed a telephone call to inform Patrick Butler of
the Ohio County Sheriff’s Department of the same.
Based upon the
information provided by defendant Crews, the Ohio County Sheriff’s
Department sent officers Alex Espejo and Robert Manchas to the
plaintiffs’ home.
Upon arrival at the home, the officers knocked
on the front door and, receiving no answer, proceeded to the back
of the home where they found Mr. Covey and observed the marijuana
earlier observed by defendant Crews.
scent of marijuana at that time.
The officers also noted the
Mr. Covey also allegedly made
admissions regarding drug paraphernalia in the home, and Corporal
Espejo left to obtain a warrant to search the house, leaving Deputy
Ron White with Mr. Covey.
While Corporal Espejo was obtaining the search warrant for the
home, Mrs. Covey returned to the home and was placed in handcuffs.
Following Corporal Espejo’s return with the warrant, a search was
2
executed of the home and the plaintiffs were arrested and taken to
jail to be booked.
Later in the evening, the plaintiffs’ son
returned home to find Corporal Espejo in the home searching Mrs.
Covey’s computer.
Also while the plaintiffs’ son was present, two
unnamed officers of the Ohio County Dog Warden arrived and seized
the family’s raccoon.
After the plaintiffs’ complaint was filed in this Court, it
was referred to United States Magistrate Judge James E. Seibert for
initial review and report and recommendation. After a preliminary
review, the magistrate judge directed that the defendants be served
and file a response.
dismiss.
In response, all defendants filed motions to
Defendants, the Assessor of Ohio County, Patrick Butler,
Roy Crews, Nelson Croft, DLG, Alex Espejo, HNK, Kathie Hoffman,
Doug McCrosky, Ohio County Animal Shelter, Ohio County Sheriff,
Ohio Valley Drug Task Force, Nichole Seifert, Unknown Assessor,
Unknown Dog Wardens, and Ron White, filed a joint motion to
dismiss, and the Ohio Valley Task Force filed a separate motion to
dismiss. The United States, by the Drug Enforcement Administration
(“DEA”), also filed a separate individual motion to dismiss,2 and
2
Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b),
2671 et seq., the United States, through the DEA, has been
substituted for the individually named federal defendant, Robert L.
Manchas in Counts II, V and VI. In accordance with the Act, the
United States Attorney General, by the United States Attorney for
this district, certified to this Court that defendant Manchas was
acting within the scope of his employment as an employee of the
United States at the time of the incidents giving rise to the
allegations in those claims.
Thus, the Act mandates that the
3
the
individually
named
federal
defendant,
Robert
L.
Manchas
(“Manchas”) filed an individual motion to dismiss.
The plaintiffs responded to each of these motions following
the issuance of a Roseboro3 notice, and the Task Force, and
defendant Manchas filed replies.
The plaintiffs filed a rebuttal
to defendant Manchas’ reply, which defendant Manchas has moved to
strike as filed without leave of court.4
Magistrate Judge Seibert entered a report and recommendation
wherein he recommended that the plaintiffs’ federal civil rights
claims be dismissed for failure to state a claim, that this Court
decline to exercise supplemental jurisdiction over the state law
claims raised in the complaint as a result, and that the state law
claims be dismissed without prejudice subject to refiling in state
court.
The
plaintiffs
filed
objections
to
the
report
and
recommendation, and defendant Manchas filed a response to the same.
For the reasons set forth below, this Court finds that the report
exclusive remedy for the claims against him is a suit against the
United States of America. The only count which remains against
defendant Manchas is Count IV.
Count IV is the subject of
defendant Manchas’ individual motion to dismiss.
3
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)
(finding that the court must inform a pro se plaintiff of his right
to file material in response to a motion for summary judgment).
4
As the plaintiffs’ rebuttal to defendant Manchas’ reply was
filed without leave of court, as is required by Local Rule 7.02,
defendant Manchas’ motion to strike the plaintiffs’ rebuttal is
granted. However, this Court has read and considered the rebuttal
and finds that the ultimate conclusions reached by this Court and
set forth herein are not altered by the contents of that document.
4
and recommendation by the magistrate judge must be affirmed and
adopted in its entirety.
The plaintiffs’ federal civil rights
claims are thus dismissed with prejudice, and the plaintiffs’ state
law claims are dismissed without prejudice for lack of subject
matter jurisdiction.
II.
Legal Standard
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
recommendation to which objection is timely made.
judge’s
Because the
plaintiffs filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo.
III.
Discussion
The magistrate judge’s report and recommendation addresses the
plaintiffs’ claims individually, rather than the individual motions
to dismiss filed by the defendants.
For ease of comparison and
review, this Court will conduct its review of the magistrate
judge’s findings in the same manner.
Counts I, II, V and VI are
state law claims, and thus will be addressed following this Court’s
review of the plaintiffs’ federal civil rights claims–Counts III
and IV.
A.
Count III
Count III raises a 42 U.S.C. § 1983 claim against the Ohio
County
Sheriff’s
Department
and
its
officers
named
in
the
complaint, the Assessor of Ohio County and its officers named in
5
the complaint, and the Ohio County Animal Shelter and its officers
named in the complaint.
The count alleges deliberate indifference
to the plaintiffs’ civil rights in the form of unreasonable search
and seizure.
In order to state a claim for violation of the plaintiffs’
Fourth Amendment rights against unreasonable search and seizure,
the plaintiffs must show first that there was a “search” as that
term is defined in the context of the Fourth Amendment.
A Fourth
Amendment “search” only occurs when the plaintiffs demonstrate that
(1) they had a subjective expectation of privacy in the location of
the alleged search, and that (2) society is willing to accept that
subjective expectation of privacy as a reasonable one. See Katz v.
United States, 389 U.S. 347 (1967).
1.
Tax assessor
The
first
allegedly
unreasonable
search
claimed
by
the
plaintiffs is the entrance onto the plaintiffs’ property by the
state tax assessor, namely defendant Roy Crews.
As noted above,
defendant Crews came to the plaintiffs’ home for the purpose of
assessing the value of their property for tax purposes, and upon
entering the plaintiffs’ backyard, viewed what he believed to be
marijuana on the plaintiffs’ back patio.
This discovery prompted
him to notify the Ohio County Sheriff’s Office of the same.
With the standard for a “search” outlined above in mind, this
Court agrees with the magistrate judge that defendant Crews’
6
activity on the plaintiffs’ property did not constitute a “search”
under the Fourth Amendment.
As the magistrate judge states in his
report and recommendation, the tax assessor, in performing a naked
eye, ordinary observation of the front and back of the plaintiffs’
house for the purposes of assessing its value, did nothing unduly
intrusive, and thus did not commit a “search.”
While this Court
does not disagree that the plaintiffs had a subjective expectation
of privacy as to defendant Crews’ entrance into the backyard of
their home, it cannot conclude that the second prong of Katz can be
met in this circumstance.
Much like a property owner has no reasonable expectation of
privacy with regard to a meter reader or postal worker entering the
curtilage of his or her home for the purposes of reading utility
meters and delivering mail, neither do the Coveys have a reasonable
expectation of privacy with regard to items viewable by the naked
eye from the curtilage of their home when a property tax assessor
is executing the responsibilities of his employment.
There is no
evidence to suggest that Mr. Crews did anything beyond executing
the normal responsibilities of his employment as a tax assessor,
and thus no search was conducted by him under the test delineated
in Katz.
See Wildgren v. Maple Grove Twp., 429 F.3d 575 (6th Cir.
2005) (“[A] property assessor does not conduct a Fourth Amendment
search by entering the curtilage for the tax purpose of naked eye
observations of the house’s plainly visible exterior attributes and
7
dimension.”); Taylor v. Mich. Dep’t of Natural Res., 502 F.3d 452,
456-57 (6th Cir. 2007) (Noting the importance of the “methods of
observation and purpose of [the entrant’s] conduct” in determining
whether a search occurred).
The plaintiffs argue in their objections to the magistrate
judge’s report and recommendation that “No Trespassing” signs were
posted on their property as evidence that Mr. Crews’ entrance onto
their property constituted a “search” under the Fourth Amendment.
They point to the West Virginia assessor’s statute, and argue that
the statute clearly precludes assessors from entering “posted,
private property” at all.
However, even if defendant Crews did
violate the assessor’s statute or any internal policy of the state
tax assessor, a determination which this Court does not here make,
this does not constitute evidence of a constitutional violation.
See Hovater v. Robinson, 1 F.3d 1963, 1068 n.4 (10th Cir. 1993)
(Violation of agency policy “does not equate to a constitutional
violation.”).
2.
Police officers
The next alleged “search” to which the plaintiffs point
occurred when defendant Crews contacted the Ohio County Sheriff’s
Office and officers were dispatched to the plaintiffs’ property to
investigate the call.
This Court agrees with the magistrate
judge’s conclusion that this entrance onto the plaintiffs’ property
was in accordance with the officers’ constitutional ability to
8
conduct a “knock and talk.”
In the United States Court of Appeals
for the Fourth Circuit, a “knock and talk,” wherein law enforcement
officers approach the entrance of a person’s home in order to ask
questions of occupants, is not a situation which requires a warrant
or probable cause to be valid.
See United States v. Taylor, 90
F.3d 903, 909 (4th Cir. 1996) (finding that approaching the front
door of the defendant’s home and knocking was permissible as the
defendant’s “front entrance was as open to the law enforcement
officers as to any delivery person, guest, or other member of the
public”). In Davis v. United States, 327 F.2d 301 (9th Cir. 1964),
an opinion cited with approval by the Fourth Circuit in Taylor, the
Ninth Circuit held that when police officers have reasonable
suspicion which would make it reasonable for them to desire to
question a person regarding their suspicions, no “right of privacy”
is invaded by officers or anyone else walking up to that person’s
home “with the honest intent of asking questions of the occupant
thereof.”
Id. at 303.
In this case, in the criminal complaint, as well as in the
plaintiffs’ complaint filed in this Court, it is clear that when
the officers arrived at the plaintiffs’ home in order to conduct a
“knock and talk,” Mr. Covey was present on the property and was on
the back patio at a workbench.
Realizing that Mr. Covey was not
inside the house, the officers proceeded to the backyard in order
to speak with him there.
It was there, once in the backyard
9
speaking with Mr. Covey, that the officers first viewed marijuana
on the workbench and on the patio behind the home.
The plaintiffs do not argue, based upon these facts, that the
officers’ approach to the house could not be considered a valid
“knock and talk.” Rather, they assert that such a “knock and talk”
cannot continue into a person’s backyard, especially their backyard
in particular, because no walkway into the backyard existed to
suggest that visitors were welcome to proceed thereto in order to
speak with any occupants of the home who may be located behind the
house.
They also argue that the officers could not have seen
anyone located in the back of the house without first proceeding
away from the “parking area” and the entrance to the home.
This
Court disagrees.
In the Fourth Circuit, it has been established that police may
proceed into a person’s backyard without a warrant “to speak with
the homeowner . . . when circumstances indicate that they might
find him there.”
Alvarez v. Montgomery Cnty, 147 F. 3d 354, 356
(4th Cir. 1998); United States v. Bradshaw, 490 F.2d 1097, 1100
(4th
Cir.
1974).
Despite
the
plaintiffs’
arguments
to
the
contrary, it is clear to this Court that the officers arriving at
the plaintiffs’ residence were confronted with circumstances that
led them to believe that they may find Mr. Covey in the backyard,
and that they were thus not in violation of the Fourth Amendment
when
they
proceeded
there
to
speak
10
with
him.
First,
as
the
plaintiffs admit, Mr. Covey was located in the backyard on the
patio when the officers came to the back to see him.
Secondly, the
pictures of the property provided by the plaintiffs make clear that
the view of the backyard patio area is not impeded from the vantage
point of the parking area near the garage of the home.
The
plaintiffs argue that, had the officers parked in the proper
“visitors” parking area of the home, they would not have been able
to view the backyard.
However, the parking area in the pictures
provided is gravel and is not clearly delineated, and there is no
indication of a specified area for visitor parking to the exclusion
of other areas.
Further, the photographs of the driveway clearly
show that anyone proceeding up the driveway would have a clear view
of the backyard area.
Finally, the statements of Corporal Espejo
submitted in the criminal complaint indicate that the officers were
able to see Mr. Covey “standing under the deck near the rear
basement walk out door” upon their arrival. ECF No. 35 Ex. 2 *1.
As
noted
above,
the
plaintiffs
also
argue
that,
notwithstanding the general rule in Alvarez, in this particular
case, the officers exceeded the bounds of a valid “knock and talk”
in proceeding to the backyard, because their home does not have a
walkway which would indicate that the public was welcome to proceed
to the backyard.
This Court acknowledges that the Fourth Circuit
has articulated an exception to this general rule where it can be
shown
that
police
were
met
with
11
“clear
indication
that
the
homeowner
intended
backyard.
Edens v. Kennedy, 112 F. App’x 870, 875 (4th Cir. 2004)
(unpublished).
to
exclude
uninvited
visitors”
from
the
However, it is clear to this Court that the
plaintiffs did not so indicate in this case.
It is true that no
clear walkway exists between the plaintiffs’ driveway and their
backyard, but there is also no fence, no sign directing visitors to
not enter the backyard, nor even any marked ending to the area
where the public would be welcome.
As such, this Court overrules
the plaintiffs’ objections in this regard and concurs with the
magistrate judge’s conclusion that the officers proceeded into the
backyard in the basis of a valid “knock and talk” and thus did not
violate the plaintiffs’ Fourth Amendment rights in doing so.
3.
Search warrant
As a result of the foregoing, this Court also agrees with the
magistrate judge that the search warrant obtained by Corporal
Espejo following the valid knock and talk was based upon probable
cause, and thus also constitutionally valid.
It was after the
officers’ valid entry into the backyard that officers were able to
view what they believed to be marijuana, in plain view on the
patio, and to obtain an admission of the same from Mr. Covey.5
5
This Court is unable to discern from the record whether or
not Mr. Covey’s admissions prior to the officer’s obtaining the
search warrant, which admissions are noted in the criminal
complaint filed on the record, are disputed. However, it seems
clear that the existence of marijuana in view on the patio, and the
fact that the scent of marijuana was recognizable in the backyard,
are not disputed.
Accordingly, this Court finds that probable
12
These discoveries while the officers were legally present in the
plaintiffs’ backyard are sufficient to create probable cause to
obtain a search warrant for the house.
The plaintiffs also argue that the actual search warrant
obtained was invalid because it was unconstitutionally overbroad.
However, the plaintiffs offer little factual basis for this claim.
Their arguments in this regard simply state the allegation then
support it with quotations and statements from cases finding other
warrants to be unconstitutionally overbroad.
The only support
which the plaintiffs give for their allegation that this particular
search
warrant
did
not
contain
the
“particularly
[sic]
and
specificity” required by the Fourth Amendment is that “officer
Espejo failed to cross out ‘evidence of a crime,’ meaning that any
evidence of any crime in any jurisdiction could be confiscated.”
ECF No. 55 *7-*8.
This Court disagrees.
The search warrant obtained by Corporal Espejo, and which was
used as the basis to search the plaintiffs’ property, specifically
provides that the warrant was based upon suspicions that Mr. Covey
had engaged in the manufacture, delivery, or possession with intent
to deliver marijuana, in violation of the specific West Virginia
Code § 60A-4-401(a)(ii).
The search warrant also specifically
describes the location covered by the search warrant as the
cause to obtain a search warrant existed regardless of whether Mr.
Covey made any type of admissions to the officers.
13
plaintiffs’ house and surrounding property.
The grounds for
probable cause are also attached to the search warrant.
Accordingly, the search warrant specifically notes that the
limits of the warrant were with regard to suspicions of unlawful
manufacture,
delivery,
or
possession
with
intent
to
deliver
marijuana, and that the physical bounds of the warrant were within
the plaintiffs’ property at 222 Castlemans Run Road, Valley Grove,
Ohio County, West Virginia.
As such, the plaintiffs’ claim that
the search warrant was invalid is without merit.
4.
Dog wardens
Finally, the plaintiffs argue that the dog wardens’ seizure of
the plaintiffs’ raccoon following their arrest constitutes a Fourth
Amendment violation.
As the magistrate judge noted, it is clear
that the dog wardens’ actions in this case constituted a search, as
they entered the home of the plaintiffs, and that the warrant
obtained by police did not provide for the seizure of the raccoon.
Thus, the dog wardens’ seizure of the raccoon constituted a
warrantless search and seizure.
also
asserted,
“unreasonable”
the
Fourth
warrantless
However, as the magistrate judge
Amendment
search
and
only
protects
seizure.
In
against
order
to
determine whether a warrantless seizure is “unreasonable,” a court
must
weigh
“the
nature
and
quality
of
the
intrusion
on
the
individual’s Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion.”
14
United
States
v.
Place,
462
U.S.
696,
703
(1983).
In
this
particular case, with regard to the plaintiffs’ pet raccoon, this
Court agrees with the magistrate judge’s conclusion that the
importance
of
the
governmental
interests
clearly
justify
the
intrusion of the seizure of the raccoon.
First, the state has a strong public health and safety
interest
in
removing
wild
animals
from
a
private
residence.
Secondly, as the magistrate judge pointed out, it is clear that,
beyond the state’s interests with regard to health and safety of
its citizens, the plaintiffs, the pet raccoon’s caretakers, had
been arrested, and were thus unable to care for the raccoon for a
yet-to-be-determined amount of time.
Thus, the state had a
pressing and important interest in protecting the well-being of the
raccoon, which would no longer be provided with the necessities of
life
for
the
time
that
the
plaintiffs
were
in
custody.
Accordingly, the dog wardens’ seizure of the plaintiffs’ raccoon
was
not
unreasonable
under
the
circumstances,
and
no
Fourth
Amendment violation can be found as to their actions.
5.
Allegations against supervisors and entities
Finally,
the
plaintiffs’
claims
under
Count
III
against
defendants Doug McCrosky, Sheriff Patrick Butler, Kathie Hoffman,
the Assessor of Ohio County, the Ohio County Sheriff, and the Ohio
County Animal Shelter also must be dismissed.
All of these
defendants serve in supervisory roles above the above-discussed
15
actors in this case–Doug McCrosky is the supervisor of the Ohio
County Animal Shelter, Patrick Butler is the Sheriff of Ohio
County, and Kathie Hoffman is the Assessor of Ohio County.
As the
magistrate judge correctly notes, in a § 1983 claim such as this,
none of these supervisors or municipal entities can be held liable
under a theory of respondeat superior.
However, a supervisor can
be held liable if a subordinate’s acts which violated a person’s
constitutional rights were conducted in accordance with an official
policy
for
which
the
supervisor
is
responsible,
or
if
the
supervisor was aware of the conduct and failed to respond to the
point
that
the
failure
to
respond
constitutes
“deliberate
indifference” to the risk of constitutional violation.
Fisher v.
Washington Metro. Area Transit Auth., 690 F.2d 1113 (4th Cir.
1982); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), cert.
denied, 513 U.S. 813 (1994).
Acknowledging this, the plaintiffs argue in their objections
that,
based
upon
the
facts
and
evidence
presented
in
their
complaint and in the briefing of the defendants’ various motions to
dismiss,
the
supervisors
named
as
defendants
involved in [the allegations made in] this case.”
“were
directly
ECF No. 55 *11.
However, whether or not this argument by the plaintiffs is true,
based upon the facts and evidence presented, it is irrelevant to
this
Court’s
determination
at
this
point.
Supervisors
and
governmental entities cannot be found liable when no constitutional
16
violations
have
been
found
as
to
the
activities
of
their
subordinates or employees. See Grayson v. Peed, 195 F.3d 692, 697
(4th
Cir.
1999)
violations
by
liability.”)
(“As
any
As
there
are
individual,
such,
no
underlying
there
because
can
this
Court
constitutional
be
no
municipal
found
that
no
constitutional violations occurred at any time with regard to any
of the events or actors noted in the plaintiffs’ complaint, the
supervisors and entities named cannot be held liable under § 1983
as a result of any of those actions or events.
Count III is thus
dismissed in its entirety.
B.
Count IV
Count IV raises a Bivens claim based upon the same allegations
and
facts
as
Count
III,
but
raises
it
against
the
federal
defendant, Detective Robert Manchas. As explained in detail above,
this Court finds that no constitutional violations took place as
the result of any actions or events to which the plaintiffs point
in their complaint.
As such, no Bivens claim can be maintained
against Detective Manchas, and Count IV is also dismissed in its
entirety.
C.
Counts I, II, V and VI
For the reasons explained above, this Court affirms and adopts
the magistrate judge’s recommendation to dismiss Counts III and IV
of the plaintiffs’ complaint.
The remaining counts–Counts I, II,
V, and VI–all present state law causes of action, and no federal
17
claims remain.
As a result, this Court’s only basis for subject
matter jurisdiction over this case have now been dismissed, and
this Court may only exercise continuing jurisdiction based upon the
doctrine of supplemental jurisdiction. See 28 U.S.C. 1367(a). The
determination of whether to continue to exercise supplemental
jurisdiction over a case following the dismissal of all federal
claims is one reserved to the discretion of the district court.
However, it has been widely determined that, in the interest
of comity, federal courts should decline to exercise continuing
supplemental jurisdiction over state law claims if federal claims
are dismissed early in the litigation of a case.
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
United Mine
As this Court
agrees with the magistrate judge that the federal claims in this
case have been dismissed at a very early stage of the litigation of
this matter, this Court will exercise its discretion to decline to
exercise supplemental jurisdiction over Counts I, II, V, and VI,
and will dismiss these claims without prejudice.
IV.
Having
reviewed
Conclusion
the
magistrate
judge’s
report
and
recommendation de novo, this Court hereby AFFIRMS and ADOPTS the
report and recommendation in its entirety.
Defendant Robert L.
Manchas’ motion to strike the plaintiffs’ rebuttal to his motion to
dismiss (ECF No. 52) is GRANTED.
All pending motions to dismiss
(ECF Nos. 27, 32, 43 and 44) are GRANTED AS FRAMED.
18
Counts III and
IV of the plaintiffs’ complaint are DISMISSED WITH PREJUDICE.
Counts I, II, V, and VI are DISMISSED WITHOUT PREJUDICE.
It is
ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Should the plaintiffs choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, they are ADVISED that
they must file a notice of appeal with the Clerk of this Court
within 60 days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiffs by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
January 25, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
19
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