Turner v. West Virginia Regional Jail Authority et al

Filing 28

ORDER adopting and incorporating the 26 Proposed Findings and Recommendation by Magistrate Judge; directing that the 13 Motion by C.O. Holiday and Sgt. Toney to dismiss is denied as moot; the 16 Motion by West Virginia Regional Jail Authority to Dismiss is granted; the West Virginia Regional Jail Authority is dismissed from this action. The matter continues to be referred to Magistrate Judge Tinsley as to the remaining defendants. Signed by Judge John T. Copenhaver, Jr. on 2/28/2018. (cc: plaintiff; counsel of record; United States Magistrate Judge Dwane L. Tinsley) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

RICHARD DALE TURNER,
Plaintiff,

v.

Civil Action No. 2:16-cv-04346

WEST VIRGINIA REGIONAL JAIL AUTHORITY,
C.O. PERRY, C.O. ALLEN, C.O. HOLIDAY,
Sgt. TONEY, AND MEDICAL STAFF,
Defendants.

ORDER

Pending are the motion to dismiss by defendants
Holiday and Toney for lack of service, filed on March 17, 2017,
and the motion to dismiss by defendant West Virginia Regional
Jail Authority, filed on March 23, 2017.
This matter having been referred to United States
Magistrate Judge Dwane L. Tinsley pursuant to 28 U.S.C. §
636(b)(1)(B), he filed his Proposed Findings and Recommendation
(“PF&R”) on these two motions on January 9, 2018.

Magistrate

Judge Tinsley recommends that the individual defendants’ motion
be denied as moot, inasmuch as they have since been properly
served, and that the jail authority’s motion be granted, among
other reasons, because it is not a “person” that can be sued
under 42 U.S.C. § 1983 and is immune from a suit for damages

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
THOMAS PARKER,
under the Eleventh Amendment of the United States Constitution.
Plaintiff,
During a motions hearing before the magistrate judge, plaintiff
v.
Civil Action No. 15-14025
agreed to the dismissal of the jail authority from the suit.
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
No objections having been filed to the PF&R, the
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
parties have waived de novo review by this court. Accordingly,
DOES 1 THROUGH 10, inclusive,
it is ordered as follows:
Defendants.
ORDER AND NOTICE
1. That the PF&R be, and it hereby is, adopted and
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
incorporated in full herein.
following dates are hereby fixed as the time by or on which
certain events must occur: to dismiss by C.O. Holiday and Sgt.
2. That the motion
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
Toney be, and it hereby is, denied as moot. or other
supporting briefs, memoranda, affidavits,
such matter in support thereof. (All motions
3. That the motion to dismiss will be West Virginia
unsupported by memoranda by the denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Regional Jail Authority be, and it hereby is,
02/08/2016
Last day for Rule 26(f) meeting.
granted.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
4. That the West Virginia Regional Jail Authority be,
02/22/2016

and it hereby is, dismissed from this action.
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.
The matter continues to be referred to Magistrate

02/29/2016
Entry of remaining order.
Judge Tinsley as to thescheduling defendants.

The Clerk is

03/08/2016 to transmit copies of this orderPto plaintiff, all
Last day to serve F.R. Civ.
26(a)(1) disclosures.
requested
counsel of The Clerkand United States transmit this Order and L.
record, is requested to Magistrate Judge Dwane
Notice to
Tinsley. all counsel of record and to any unrepresented
parties.
DATED: February 28, 2016
January 5, 2018
John T. Copenhaver, Jr.
United States District Judge
2