Ballinger v. Adams et al, No. 2:2008cv01024 - Document 45 (S.D.W. Va. 2010)
Court Description: MEMORANDUM OPINION & ORDER adopting the Magistrate Judge's 30 Proposed Findings and Recommendation insofar as it recommends denial of the defendants' Motion to Dismiss; the defendants cannot show, based on the pleadings alone, that the pl aintiff has failed to state a claim upon which relief can be granted; denying without prejudice defendants' 13 MOTION to Dismiss; this case is re-referred to the Magistrate Judge for further proceedings consistent with this Order; the plaintiff's 34 Motion for Discovery is also referred to the Magistrate Judge. Signed by Judge Joseph R. Goodwin on 1/8/2010. (cc: attys; any unrepresented parties) (mkw)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION ARTHUR BALLINGER, IV Plaintiff, v. CIVIL ACTION NO. 2:08-cv-01024 CO II GARRETT ADAMS, et al., Defendants. MEMORANDUM OPINION & ORDER Pending before the court is the defendants Motion to Dismiss [Docket 13] and the plaintiff s Letter-Form Motion for Discovery [Docket 34]. The Motion to Dismiss was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation ( PF&R ) for disposition, pursuant to 28 U.S.C. ยง 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and recommended that the court deny the defendants Motion to Dismiss [Docket 30]. The defendants have submitted timely objections to the Magistrate Judge s PF&R [Docket 35]. The court has reviewed de novo those portions of the PF&R to which the defendants object. The court ADOPTS the Magistrate Judge s PF&R insofar as it recommends denial of the defendants Motion to Dismiss; the defendants cannot show, based on the pleadings alone, that the plaintiff has failed to state a claim upon which relief can be granted. Thus, the defendants Motion to Dismiss [Docket 13] is DENIED without prejudice. This case is re-referred to the Magistrate Judge for further proceedings consistent with this Order. The plaintiff s Motion for Discovery [Docket 34] is also referred to the Magistrate Judge. The Clerk is DIRECTED to forward copies of this written opinion and order to all counsel of record and any unrepresented parties. ENTER: -2- January 8, 2010
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