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)

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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.

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