Smith v. Penick et al, No. 2:2020cv00548 - Document 22 (S.D.W. Va. 2021)
Court Description: MEMORANDUM OPINION AND ORDER directing that the 21 Proposed Findings and Recommendation is adopted and the defendants' 12 Motion to Dismiss the Count VI claim is granted. Signed by Senior Judge John T. Copenhaver, Jr. on 9/3/2021. (cc: counsel of record; any unrepresented parties; United States Magistrate Judge) (kew)
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Smith v. Penick et al Doc. 22 Case 2:20-cv-00548 Document 22 Filed 09/03/21 Page 1 of 2 PageID #: 334 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON ROGER D. SMITH, Plaintiff, v. Civil Action No. 2:20-cv-00548 BRIAN PENICK, individually; JOHNNY WILSON, individually; SAMUEL PAULEY, individually; DONALD AMES, individually and in his official capacity as Superintendent of MOCC; BETSY JIVIDEN, individually and in her official capacity as WVDOC Commissioner; and JOHNATHAN FRAME, individually and in his official capacity as Associate Superintendent of Security at MOCC, Defendants. MEMORANDUM OPINION AND ORDER This action was previously referred to Dwane L. Tinsley, United States Magistrate Judge, who has submitted his Proposed Findings and Recommendation pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). The court has reviewed the Proposed Findings and Recommendation entered by the magistrate judge on August 6, 2021. The magistrate judge recommends “that the presiding District Judge grant the defendants’ Motion to Dismiss and dismiss Plaintiff’s IIED claim contained in Count VI of the Dockets.Justia.com Case 2:20-cv-00548 Document 22 Filed 09/03/21 Page 2 of 2 PageID #: 335 Complaint as being duplicative of his claim for assault and battery contained in Count III thereof.” and citation omitted). ECF No. 21 (emphasis The plaintiff, proceeding pro se, has not objected to the Proposed Findings and Recommendation. Accordingly, it is ORDERED that: 1. The Proposed Findings and Recommendation be, and hereby is, adopted by the court, and 2. The defendants’ motion to dismiss the Count VI IIED claim be, and hereby is, granted. The Clerk is directed to forward copies of this written opinion and order to all counsel of record, any unrepresented parties, and the United States Magistrate Judge. ENTER: September 3 2021 2
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