Shepherd v. Ballard

Filing 22

MEMORANDUM OPINION AND ORDER adopting the 20 Proposed Findings and Recommendation by Magistrate Judge; granting petitioner's 17 Motion for a stay and abeyance of his petition for a writ of habeas corpus on the conditions set forth mor e fully herein; denying without prejudice respondent's 9 Motion to Dismiss; in view of the stay, directing that this case be removed from the active docket of the court. Signed by Judge John T. Copenhaver, Jr. on 6/9/2017. (cc: plaintiff; counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MORGAN SHEPHERD,
Petitioner,
v.

Civil Action No. 2:16-6669

DAVID BALLARD, Warden, Mount
Olive Correctional Complex,
Respondent.
MEMORANDUM OPINION AND ORDER
The court having received the Proposed Findings and
Recommendations of United States Magistrate Judge Cheryl A. Eifert,
filed on May 3, 2017, pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B); and having reviewed the record in this proceeding; and
there being no objections filed by any party to the proposed findings
and recommendation;1 and it appearing proper so to do, it is ORDERED
that the findings and conclusions made in the proposed findings and
recommendation of the magistrate judge be, and they hereby are,
adopted by the court.
It is, therefore, ORDERED that:
1.

Petitioner’s request for a stay and abeyance of his

petition for a writ of habeas corpus (ECF Doc. No. 17) be, and it
1

Petitioner responded on May 8, 2017, stating that he agrees with

AT CHARLESTON
THOMAS PARKER,
Plaintiff,
hereby is, granted on the conditions set forth next below;
v.
Civil Action No. 15-14025
2.
Petitioner be, and TERM DISABILITY PROGRAM,
THE DOW CHEMICAL COMPANY LONG he hereby is, granted a stay so that
an Employee Welfare Benefits Plan,
he may LIFE his state court OF BOSTON,
LIBERTY pursueASSURANCE COMPANY remedies for his unexhausted claims
a Massachusetts Corporation, and
and 1 THROUGH 10, inclusive,
DOES that the stay be, and hereby is, conditioned on Petitioner
pursuing his state court remedies within thirty (30) days of the date
Defendants.
of this order;

ORDER AND NOTICE

Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
3.
Petitioner’s habeas petition time by or on which
following dates are hereby fixed as the be, and it hereby is, held
certain events must occur:
in abeyance pending exhaustion of his state court remedies, and
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
Petitioner be,supporting briefs, memoranda, affidavits, or other
and hereby is, required to return to federal court
such matter in support thereof. (All motions
within thirty unsupported by memoranda will be denied without
(30) days after he has exhausted his state court
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
remedies and seek to lift the stay; and
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016
Last day to file Report of Parties= Planning
4.
Respondent’s motion to Civ. P. 16.1. Doc. No. 9) be, and
Meeting. See L.R. dismiss (ECF
it hereby
denied without prejudice.
02/22/2016 is, Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
In view of the stay, it is ORDERED that this case be removed
directed to appear.
from the active docket scheduling order.
02/29/2016
Entry of of the court.
03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to forward copies of this written
The Clerk is requested to transmit this Order and
opinion and order to plaintiff, all counsel of record and the United
Notice to all counsel of record and to any unrepresented
States Magistrate Judge.
parties.
DATED: June 9, 20172016
DATED: January 5,
John T. Copenhaver, Jr.
United States District Judge
the Proposed Findings and Recommendations.