Wilson v. Caudill et al

Filing 100

MEMORANDUM OPINION AND ORDER adopting and incorporating the 95 Proposed Findings and Recommendation by Magistrate Judge; finding that there is a genuine issue of material fact as to whether defendants Joe Little and David Toney used excessive forc e against the plaintiff; denying the 36 Motion to Dismiss but granting the Motion for Summary Judgment filed by Steve Caudill, Jim Rubenstein, and David Ballard; denying as moot plaintiff's 58 Motion to Issue a Scheduling Order; denying as moot 59 Motion to Dismiss the 57 Second Amended Complaint filed by Steve Caudill, Jim Rubenstein, and David Ballard; denying as moot plaintiff's 68 and 71 Motions for Appointment of Counsel; granting 69 Motion to Dismiss the [ 57] Second Amended Complaint filed by Don Slack; denying the 72 Motion to Dismiss, or in the alternative, Motion for Summary Judgment filed by Joe Little; granting 74 Motion for Summary Judgment filed by Terry Coleman and Rick Jones; and dismissing this action as to the defendants Michael Shaffer, Brian Deboard, and Weston Tony. Signed by Judge Joseph R. Goodwin on 2/16/2012. (cc: attys; any unrepresented party) (cbo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ANDRE WILSON,
Plaintiff,
v.

CIVIL ACTION NO. 2:11-cv-00103

STEVE CAUDILL, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This action was referred to the Honorable Mary E. Stanley, United States Magistrate
Judge, for submission to this court of proposed findings of fact and recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

The Magistrate Judge conducted an

evidentiary hearing at which the plaintiff and the defendants Terry Coleman and Sgt. David
Toney appeared in person and by counsel and testified. The other defendants were represented
by counsel. The Magistrate Judge has submitted findings of fact and has recommended that the
court do the following: (1) FIND that there is a genuine issue of material fact as to whether the
defendants Joe Little and David Toney used excessive force against the plaintiff; (2) DENY the
motion to dismiss but GRANT the motion for summary judgment filed by the defendants
Ballard, Caudill, and Rubenstein [Docket 36]; (3) DENY as moot the plaintiff’s motion to issue
a scheduling order [Docket 58]; (4) DENY as moot the defendants Ballard, Caudill, and
Rubenstein’s motion to dismiss the Second Amended Complaint [Docket 59]; (5) DENY as
moot the plaintiff’s motions for appointment of counsel [Docket 68 & Docket 71]; (6) GRANT

the motion to dismiss the Second Amended Complaint filed by the defendant Don Slack [Docket
69]; (7) DENY the motion to dismiss or, in the alternative, motion for summary judgment, filed
by the defendant Joe Little [Docket 72]; (8) GRANT the motion for summary judgment filed by
the defendants Terry Coleman and Rick Jones [Docket 74]; and (9) DISMISS this action as to
the defendants Michael Shaffer, Brian Deboard, and Weston Toney. The plaintiff has not filed
objections to the Magistrate Judge’s findings and recommendation.
A district court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”

28 U.S.C.

§ 636(b)(1)(C). This court is not, however, required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
As the plaintiff has not filed objections in this case, the court adopts and incorporates
herein the findings and recommendation of the Magistrate Judge. The court therefore: (1)
FINDS that there is a genuine issue of material fact as to whether the defendants Joe Little and
David Toney used excessive force against the plaintiff; (2) DENIES the motion to dismiss but
GRANTS the motion for summary judgment filed by the defendants Ballard, Caudill, and
Rubenstein [Docket 36]; (3) DENIES as moot the plaintiff’s motion to issue a scheduling order
[Docket 58]; (4) DENIES as moot the defendants Ballard, Caudill, and Rubenstein’s motion to
dismiss the Second Amended Complaint [Docket 59]; (5) DENIES as moot the plaintiff’s
motions for appointment of counsel [Docket 68 & Docket 71]; (6) GRANTS the motion to
dismiss the Second Amended Complaint filed by the defendant Don Slack [Docket 69]; (7)
DENIES the motion to dismiss or, in the alternative, motion for summary judgment, filed by the

defendant Joe Little [Docket 72]; (8) GRANTS the motion for summary judgment filed by the
defendants Terry Coleman and Rick Jones [Docket 74]; and (9) DISMISSES this action as to the
defendants Michael Shaffer, Brian Deboard, and Weston Toney.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

February 16, 2012