Duncan v. Western Regional Jail et al

Filing 45

ORDER adopting the 38 Proposed Findings and Recommendations by Magistrate Judge Eifert; granting Defendants' 32 motion for summary judgment; denying Plaintiff's 35 motion to amend the amended complaint and 36 motion for summary judg ement; and dismissing the claims made under the 27 amended complaint; directing that this case will remain on the docket of the Court for proceedings concerning Plaintiff's claims under his 42 Second Amended Complaint; the claims asserted in the 42 Second Amended Complaint are REFERRED to Magistrate Judge Cheryl A. Eifert for findings of fact and recommendations for disposition. Signed by Judge Robert C. Chambers on 11/9/2017. (cc: counsel of record; any unrepresented parties) (jsa)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION HENRY TIMBERLAKE DUNCAN, Plaintiff, v. CIVIL ACTION NO. 3:16-cv-11097 WESTERN REGIONAL JAIL, and ADMINISTRATOR CRAWFORD, and ADMINISTRATOR KING, and OFFICER MANNON, and OFFICER BLEVINS, Defendants. ORDER Pending before the Court is Magistrate Judge Eifert’s Proposed Findings and Recommendations (“PF&R”). (ECF No. 38). Magistrate Judge Eifert issued her PF&R on September 22, 2017. By this Court’s order on October 17, 2017, Plaintiff was given an extension to file his objections to the PF&R. Plaintiff had until October 30, 2017 to timely file his objections. Although the Court received a different pleading from Plaintiff in the interim, the Court has not received any objections to Magistrate Judge Eifert’s PF&R. Having received no objections, this Court will adopt Magistrate Judge Eifert’s PF&R. The Court is not 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 recommendations to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The Court finds Magistrate Judge Eifert’s factual findings and legal conclusions to be supported by the record and the applicable law. Accordingly, the Court ADOPTS Magistrate Judge Eifert’s PF&R. Consistent with Magistrate Judge Eifert’s recommendations, the Court GRANTS Defendants’ motion for summary judgment (ECF No. 32); DENIES Plaintiff’s motion to amend the amended complaint and motion for summary judgement (ECF No. 35, 36); and DISMISSES the claims made under the amended complaint (ECF No. 27). However, this Court, in its October 17 order, permitted Plaintiff to amend his complaint. (ECF No. 41). In doing so, the Court made clear that any claims considered in Magistrate Judge Eifert’s PF&R would not be given new life through a second amended complaint. Instead, the Court instructed Plaintiff that the Court would only consider claims that were different from those reviewed by Magistrate Judge Eifert in her already-filed PF&R. Plaintiff filed his Second Amended Complaint on November 1, 2017.1 Therefore, this case will REMAIN on the docket of the Court for proceedings concerning Plaintiff’s claims under his Second Amended Complaint. However, as Plaintiff is a pro se, incarcerated litigant, the claims asserted in the Second Amended Complaint are REFERRED to Magistrate Judge Eifert for findings of fact and recommendations for disposition. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties. ENTER: November 9, 2017 ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE See the Order filed today in this case, addressing that Plaintiff’s pleading that is docketed as ECF No. 42, and entitled “Motion to Amend,” should be treated as Plaintiff’s Second Amended Complaint. 1

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