Opinion
Civil Action No. 1:20-CV-82
02-09-2021
MICHAEL HEATH THETFORD, ANGEL CENTENO-MORALES, NELSON R. ZAPATA-VICENTE, Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.
(JUDGE KLEEH)
REPORT AND RECOMMENDATION RECOMMENDING DEFENDANT TANYA R. RICHARD'S MOTION TO DISMISS [ECF NO. 2] BE GRANTED
This matter is before the undersigned pursuant to a referral order [ECF No. 7] entered by Honorable United States District Judge Thomas S. Kleeh on May 4, 2020.
Plaintiffs originally filed this action in the Circuit Court of Preston County, West Virginia on or about January 28, 2020. Then, on or about March 30, 2020, Defendant Tanya Richard ("Richard"), pro se, filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF No. 1-5 at 19; ECF No. 2]. Defendant Roger Ware removed this action to the United States District Court for the Northern District of West Virginia on May 1, 2020.
The Court issued a Roseboro notice as to the pending motion on November 3, 2020. [ECF No. 89], directing that any response, thereto, be filed within 21 days. It appears that Plaintiffs Michael Heath Thetford and Nelson R. Zapata-Vicente received said notice by certified mail, return receipt requested, on November 6, 2020 [ECF Nos. 91, 93] and that Plaintiff Angel Centeno-Morales received said notice by certified mail, return receipt requested, on November 9, 2020. Plaintiffs have filed nothing further in response.
In support of her motion, Richard states that there are no factual allegations in Plaintiffs' complaint giving rise to any liability for which she would be responsible. Richard further states that Plaintiffs cite no legal authority to support any claim of liability, and thus, dismissal is appropriate under Fed. R. Civ. P 12(b)(6) for failure to state a claim upon which relief can be granted.
The Court's Roseboro notice straightforwardly directs Plaintiffs to file any opposition they have to the pending dismissal motion. Given the passage of time since the date of the Roseboro notice, and each Plaintiff's subsequent receipt of it, and nothing from any Plaintiff having been filed, the undersigned can only surmise that Plaintiffs have no opposition to Richard's motion. The undersigned would note that at least one Plaintiff in this action has made numerous filings as to other issues in this case, underscoring the conclusion that there is no opposition to the pending dismissal motion here. Accordingly, with no indication that Plaintiffs intend to further pursue claims as to Richard, granting Richard's motion would be appropriate. See generally Attkisson v. Holder, 925 F.3d 606, 624-625 (4th Cir. 2019).
Thus, the undersigned RECOMMENDS that Richard's pending Motion to Dismiss [ECF No. 2] be GRANTED.
Any party have fourteen (14) days (filing of objections) and then three days (mailing/service) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Thomas Kleeh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Court directs the Clerk of the Court to provide a copy of this Order to any parties who appear pro se and all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.
DATED: February 9, 2021.
/s/_________
MICHAEL JOHN ALOI
UNITED STATES MAGISTRATE JUDGE