Rutan v. State Board of Risk and Insurance Management

Filing 11

MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the 10 Proposed Findings and Recommendation, and ORDERS as follows: that the 3 Motion to Dismiss on Behalf of the Defendants the West Virginia Division of Corrections, Jim Rubenstein, William Vest, Gary Webb, Melinda Frazier, MaryBeth Toler, Irisca Leggett, Danny Aliff, Anthony Butler, and Christopher Petry Specifically Appearing, in Part be GRANT ED; that this action, as to the Defendant, the State Board of Risk and Insurance Management, be DISMISSED without prejudice due to the Plaintiffs failure to obtained service upon said Defendant within 120 days after filing of the Complaint, and the P laintiffs failure, after notice, to demonstrated good cause why service of process was not made as required by Rule 4(m) of the Federal Rules of Civil Procedure; that the Plaintiffs 1 Complaint be DISMISSED as to all parties; and that this matter be REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 02/22/2016. (cc: USMJ Aboulhosn; attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

TERRY RUTAN,
Plaintiff,
v.

CIVIL ACTION NO. 5:15-cv-09264

STATE BOARD OF RISK AND
INSURANCE MANAGEMENT, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

On June 11, 2015, the Plaintiff, acting pro se, filed a Complaint (Document 1-1) in the
Circuit Court of Raleigh County, West Virginia. The matter was removed to the United States
District Court on July 2, 2015 (Document 1), and, on July 6, 2015, the Motion to Dismiss on Behalf
of Defendants the West Virginia Division of Corrections, Jim Rubenstein, William Vest, Gary
Webb, Melinda Frazier, Mary Beth Toler, Irisca Leggett, Danny Aliff, Anthony Butler, and
Christopher Petry Specifically Appearing, in Part (Document 3) was filed.
By Standing Order (Document 2) entered on July 6, 2015, this matter was referred to the
Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of
proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636.
Subsequently, by Order (Document 9) entered on January 6, 2016, the case was referred to the

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Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed
findings of fact and recommendation for disposition.
On January 27, 2016, Magistrate Judge Aboulhosn submitted a Proposed Findings and
Recommendation (Document 10) wherein it is recommended that this Court grant the motion to
dismiss (Document 3), dismiss the Plaintiff’s Complaint (Document 1-1), and remove this matter
from the Court’s docket.

Objections to the Magistrate Judge=s Proposed Findings and

Recommendation were due by February 16, 2016, and none were filed by either party.
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 recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and a party’s right to appeal this Court=s
Order. 28 U.S.C. ' 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS as follows:
1)

that the Motion to Dismiss on Behalf of Defendants the West Virginia Division of
Corrections, Jim Rubenstein, William Vest, Gary Webb, Melinda Frazier, Mary
Beth Toler, Irisca Leggett, Danny Aliff, Anthony Butler, and Christopher Petry
Specifically Appearing, in Part (Document 3) be GRANTED;

2)

that this action, as to the Defendant, the State Board of Risk and Insurance
Management, be DISMISSED without prejudice due to the Plaintiff’s failure to
obtained service upon said Defendant within 120 days after filing of the Complaint,
and the Plaintiff’s failure, after notice, to demonstrated good cause why service of
process was not made as required by Rule 4(m) of the Federal Rules of Civil
Procedure;

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3)

that the Plaintiff’s Complaint (Document 1-1) be DISMISSED as to all parties;
and

4)

that this matter be REMOVED from the Court’s docket.

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, counsel of record, and any unrepresented party.
ENTER:

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February 22, 2016