Langley v. Huntington WV Police Dept (HPD) (Arresting Officer) et al

Filing 130

ORDER terminating Plaintiffs' 34 , 48 and 78 MOTIONS to Compel; denying as moot Plaintiff's 111 MOTION to Compel; terminating Plaintiff's 47 MOTION to Compel and MOTION for Summary Judgment; directing Attorney Matheny to disc lose to the Court, in camera, the home address of Commissioner Rubenstein and Defendant Ballard by 12/12/2017; denying as moot Plaintiff's 51 MOTION for Public Notification; denying as moot Plaintiff's 75 Motion to Clarify; directing At torney Kuratomi to disclose to the Court, in camera, the home address of Alex Marshall by 12/12/2017; terminating Plaintiff's 112 MOTION for Default as to HPD; directing Mr. Kuratomi to file the waiverof service on behalf of HPD by 12/12/2017; terminating Plaintiff's 121 MOTION for Default as to Defendant York; directing Attorney Smith to file the waiver of service on behalf of Defendant York by 12/12/2017. Signed by Magistrate Judge Omar J. Aboulhosn on 12/7/2017. (cc: Plaintiff; counsel of record; any unrepresented party; Records Department of Mt. Olive Correctional Center) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JAMES ALBERT LANGLEY,
Plaintiff,

)
)
)
)
)
)
)

v.
HUNTINGTON POLICE DEPT, et al.,
Defendants.

Civil Action No. 3:17-cv-03520

ORDER
On this day, the undersigned conducted a Status Conference in the above case. Plaintiff
appeared pro se and via video conferencing from the Northern Regional Jail; Defendants
PrimeCare Medical, Jalayna Leonburg, and Jennifer Hatfield appeared by counsel, Anne Liles
O’Hare, via telephone; Defendants Huntington Police Department and Officer Alex Marshall
appeared by counsel, Nathanial A. Kuratomi; Defendants West Virginia Department of
Corrections, Jim Rubenstein, and David Ballard appeared by counsel, Natalie N. Matheny, via
telephone; Defendant Michael York appeared by counsel, Tyler B. Smith, via telephone;
Defendants Wexford Health, Dr. Charles Lye, and Donna Warden appeared by counsel, Philip C.
Petty, via telephone. During the hearing, the undersigned addressed several pending Motions.
First, the undersigned addressed Plaintiff’s pending Motions to Compel (Document Nos.
34, 48, 78, 111.). Plaintiff agreed that the Motions to Compel filed on August 11, 2017, September
5, 2017, and September 28, 2017 (Document Nos. 34, 48, and 78) were filed prematurely. Plaintiff,
therefore, agreed to withdraw the foregoing Motions. Accordingly, it is hereby ORDERED that
Plaintiff’s Motions to Compel filed on August 11, 2017, September 5, 2017, and September 28,
2017 (Document Nos. 34, 48, and 78) be TERMINATED from the docket.

1

Concerning the Motion to Compel filed on November 17, 2017, Plaintiff requested that the
Records Department at Mt. Olive Correctional Complex (“MOCC”) be compelled to provide the
following: (1) Photos taken of Plaintiff on July 13, 2015; and (2) Audio recordings of all phone
conversations by Plaintiff on October 5, 6, 7, 8, 2015. Plaintiff stated that he provided a money
order for the cost of foregoing, but the Records Department a MOCC would not provide the
foregoing without a Court Order. By separate Order, the undersigned has ordered the Record
Department at Mt. Olive Correctional Complex to provide forthwith to Plaintiff the following: (1)
Photos taken of Plaintiff on July 13, 2015; and (2) Audio recordings of all phone conversations by
Plaintiff on October 5, 6, 7, 8, 2015. Accordingly, it is ORDERED that Plaintiff’s Motion to
Compel (Document No. 111) be DENIED as moot.
Second, the undersigned addressed Plaintiff’s Motion to Compel and Motion for Summary
Judgment (Document No. 47). In his Motion, Plaintiff requested that the Huntington Police
Department (“HPD”) be compelled to comply with Judge Eifert’s Order entered on August 7,
2017, regarding the name of the arresting officer. (Id.) Plaintiff further requested “summary
judgment” in his favor based on HPD’s failure to comply with Judge Eifert’s Order. (Id.) During
the hearing, Plaintiff agreed that his above Motion to Compel was rendered moot by HPD’s
identification and disclosure of the name of the arresting officer. (Document No. 104.) Plaintiff
further agreed to withdraw his Motion for Summary Judgment. Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Compel and Motion for Summary Judgment (Document
No. 47) be TERMINATED from the docket.
Third, the undersigned addressed Plaintiff’s Motion for Public Notification as to
Commissioner Jim Rubenstein (Document No. 51). The undersigned noted that the Return Receipt
card concerning service of Commissioner Rubenstein was returned unsigned. (Document No. 71.)

2

The Court then inquired as to whether Ms. Matheny would be willing to file a waiver of service
on behalf of Commissioner Rubenstein. Ms. Matheny, however, informed the Court that she did
not have authorization or authority to do such. Accordingly, the undersigned ORDERED Ms.
Matheny to disclose to the Court, in camera, the home address of Commissioner Rubenstein by
December 12, 2017.1 Plaintiff thereby agreed that his Motion for Public Notification was moot.
Therefore, it is further ORDERED that Plaintiff’s Motion for Public Notification (Document No.
51) be DENIED as moot.
Fourth, the undersigned addressed Plaintiff’s Motion to Clarify (Document No. 75). In the
foregoing Motion, Plaintiff requested that the Court require HPD to comply with the Court’s
Orders requiring the identification of the arresting officer. Plaintiff agreed that the above Motion
is now moot based upon the identification of the arresting officer. Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Clarify (Document No. 75) be DENIED as moot.
Fifth, the undersigned addressed the issue of improper service of Defendant Ballard. The
Court noted that Defendant Ballard had filed a Motion to Dismiss arguing improper service
(Document No. 92). Specifically, Defendant Ballard argues that the Summons and Complaint were
accepted between September 22 – 26, 2017, by Rita McGuffin, an employee at MOCC. Defendant
Ballard contends that Ms. McGuffin was not authorized to accept service on his behalf and that
his employment with MOCC end on or about September 19, 2017, prior to the attempted service.
The Court then inquired as to whether Ms. Matheny would be willing to file a waiver of service
on behalf of Defendant Ballard. Ms. Matheny, however, informed the Court that she did not have

1

 The Court notes that Plaintiff is proceeding in forma pauperis and is entitled to rely on the Court
for assistance regarding service. 28 U.S.C. § 1915(d) provides that “officers of the court shall issue
and serve all process and perform all duties in such cases.” A plaintiff is required to provide the
court with the information necessary to identify the defendant and officers of the court are charged
with assisting the plaintiff with service of process under Section 1915(d). 
3

authorization or authority to do such. Accordingly, the undersigned ORDERED Ms. Matheny to
disclose to the Court, in camera, the home address of Defendant Ballard by December 12, 2017.
Sixth, the undersigned addressed the issue of improper service as to Defendant Alex
Marshall. The Court noted that Defendant Marshall asserted improper service as an affirmative
defense in his Answer and the Docket Sheet reflected that service had been returned unexecuted
by the USMS (Document Nos. 125 and 126.). The Court then inquired as to whether Mr. Kuratomi
would be willing to file a waiver of service on behalf of Defendant Marshall. Mr. Kuratomi,
however, informed the Court that he did not have authorization or authority to do such.
Accordingly, the undersigned ORDERED Mr. Kuratomi to disclose to the Court, in camera, the
home address of Alex Marshall by December 12, 2017.
Seventh, the undersigned addressed Plaintiff’s Motion for Default as to HPD (Document
No. 112). The Court noted that Plaintiff requested default judgment based upon the appearance
that service was returned executed as to HPD, but no Answer had been filed. The Court then noted
that HPD filed its Answer on November 20, 2017, and a Response arguing that Plaintiff’s Motion
for Default should be denied because HPD was not properly served. (Document Nos. 113 and
117.) Specifically, HPD argued that Carol Nouse was not an authorized agent to accept service on
behalf of the HPD because she was not a chief executive officer, the mayor, city manager, city
recorder, city clerk, city treasurer, or any member of the city’s council or board of commissioners.
The Court explained to Plaintiff that the Fourth Circuit has “repeatedly expressed a strong
preference that, as a general matter, default be avoided and that claims and defenses be disposed
of on their merits.” Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., 616 F.3d 413,
417 (4th Cir. 2010)(citations omitted). The Court then inquired as to whether Mr. Kuratomi would
be willing to file a waiver of service on behalf of Defendant HPD. Mr. Kuratomi acknowledged

4

that he would file a waiver of service as to HPD and Plaintiff agreed to withdraw his Motion for
Default as to HPD. Accordingly, it is hereby ORDERED that Plaintiff’s Motion for Default as to
HPD (Document No. 112) be TERMINATED. Mr. Kuratomi is DIRECTED to file the waiver
of service on behalf of HPD by December 12, 2017.
Finally, the undersigned addressed Plaintiff’s Motion for Default as to Defendant York
(Document No. 121). The Court noted Plaintiff’s argument that Defendant York was properly
served on September 25, 2017. (Document No. 68.) The Court further noted that Defendant York
filed his Answer on December 1, 2017, wherein he asserted insufficient service of process as an
affirmative defense. (Document No. 124.) The Court then advised Plaintiff that a review of the
Return Receipt card revealed that delivery was not properly restricted to the addressee. The
undersigned further advised Plaintiff that even though the signature on the Return Receipt was
illegible, it did not appear to be signed by Michael York. The Court then inquired as to whether
Mr. Smith would be willing to file a waiver of service on behalf of Defendant York. Mr. Smith
acknowledged that he would file a waiver of service as to Defendant York and Plaintiff agreed to
withdraw his Motion for Default as to Defendant York. Accordingly, it is hereby ORDERED that
Plaintiff’s Motion for Default as to Defendant York (Document No. 121) be TERMINATED. Mr.
Smith is DIRECTED to file the waiver of service on behalf of Defendant York by December 12,
2017.
The Clerk is directed to send a copy of this Order to Plaintiff, counsel of record, any
unrepresented party, and the Records Department of Mt. Olive Correctional Center.
ENTER: December 7, 2017.

5