Ratliff v. Seifert et al, No. 5:2012cv00113 - Document 57 (N.D.W. Va. 2013)
Court Description: MEMORANDUM OPINION AND ORDER DECLINING TO ADOPT 52 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE and DENYING WITHOUT PREJUDICE 25 MOTION TO DISMISS. Parties are DIRECTED to keep this Court informed of any changes of the status of the settlement p rocess moving forward. Signed by Senior Judge Frederick P. Stamp, Jr on 8/12/13. (c to prose plaintiff by cert mail)(cc) Modified on 8/13/2013 to correct filing date (cc). (Additional attachment(s) added on 8/13/2013: # 1 Certified Mail Return Receipt) (cc).
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Ratliff v. Seifert et al Doc. 57 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLINTON RATLIFF, Plaintiff, v. Civil Action No. 5:12CV113 (STAMP) NICKY SEIFERT, EVELYN SEIFERT, JAMES RUBENSTEIN and NATHAN WRIGHT, Correctional Officer, Defendants. MEMORANDUM OPINION AND ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING WITHOUT PREJUDICE MOTION TO DISMISS The plaintiff filed this civil action under 42 U.S.C. ยง 1983 on July 20, 2012. The plaintiff s complaint alleges that the defendants have violated his civil rights through the complicity to the actions of Correctional Officer Nathan Wright at Northern Regional Correctional Facility. The plaintiff alleges that the defendants failed to correct or otherwise respond to the excessive force employed by Correctional Officer Wright despite their knowledge and recognition of the impropriety of his actions toward the plaintiff. Pursuant to Local Rule of Prisoner Litigation 2, this case was referred to United States Magistrate Judge James E. Seibert for initial review and report and recommendation. On October 16, 2012, the defendants filed a motion to dismiss the plaintiff s complaint, which was fully briefed by the parties. The magistrate judge then directed the defendants to supplement Dockets.Justia.com their motion to dismiss by February 28, 2013. When the defendants failed to comply with this order to supplement, the magistrate judge ordered the defendants to appear at a hearing to show cause why they should not be held in contempt of court for failing to comply with an order of court. At that hearing, which was not attended by the plaintiff, the defendants indicated that this civil action had been resolved and settled, but that the defendants were waiting for a response from a governmental health insurance program in order to disperse the settlement funds to the plaintiff. The magistrate judge then issued a report and recommendation, recommending that this Court dismiss this civil action as settled, subject to the right of the defendants to reopen. The magistrate judge informed the parties of their right to object within fourteen days of receiving the report and recommendation. The plaintiff did not object, but following the report and recommendation, the parties filed correspondence between the plaintiff and counsel for the defendants indicating that the settlement funds have not yet been dispersed, and that the settlement has thus not yet been finalized. While this Court recognizes that the defendants have indicated that a settlement has been reached, they have failed to provide this Court with any evidence supporting that assertion, and filings with this Court following the report and recommendation clearly indicate that any settlement that may have been reached between the 2 parties has not yet been finalized. Further, the defendants have failed to provide this Court with any indication that the plaintiff consents to the dismissal of his civil action. The plaintiff was not present at the show cause hearing before the magistrate judge, and he has not filed any document indicating that he has agreed to settle his claims, or that he has received settlement funds. It seems clear, in fact, that he has received nothing at this time. Accordingly, it is not appropriate to dismiss this civil action at this time. This Court must decline to affirm and adopt the recommendation of the magistrate judge. that the parties are at least working However, as it seems toward finalizing a settlement in this case, the defendants motion to dismiss is DENIED WITHOUT PREJUDICE subject to refiling should a settlement fail to succeed. The parties are DIRECTED to keep this Court informed of any changes in the status of the settlement process moving forward. IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to the pro se plaintiff by certified mail and to counsel of record herein. DATED: August 12, 2013 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 3
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