United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge.
is plaintiff's late-filed objection to the Proposed
Findings and Recommendation (“PF&R”) of
United States Magistrate Judge Dwane L. Tinsley and her
objection to the court's memorandum opinion and order
adopting the PF&R and motion to vacate the memorandum
opinion and order, filed September 30, 2016.
filed this case on April 20, 2015 against the Commissioner of
Insurance for West Virginia, Michael D. Riley, in his
individual and official capacity and against the West
Virginia Offices of the Insurance Commissioner. She alleges
that her non-resident West Virginia insurance license was
improperly revoked after her licenses were revoked in Texas
and Florida. She seeks a declaratory judgment declaring that
her West Virginia license is active and valid and an order
permanently enjoining defendants from violating state and
filed a motion to dismiss on September 18, 2015 arguing that
the case should be dismissed for three reasons: (1) that
plaintiff has failed to state a claim upon which relief can
be granted under Rule 12(b)(6); (2) that the Eleventh
Amendment bars a lawsuit against defendants; and (3) that the
court should abstain from jurisdiction under the Younger
abstention doctrine in light of ongoing state proceedings.
Def. Memo. in Supp. of Mot. to Dismiss at 4, 5, 6.
August 9, 2016, Magistrate Judge Tinsley filed a PF&R
recommending that the motion to dismiss for failure to state
a claim under Rule 12(b)(6) should be denied because
plaintiff states a potentially cognizable Fourteenth
Amendment due process claim due to actions relating to the
status of plaintiff's West Virginia insurance license.
PF&R at 8. The magistrate judge further recommended that
the West Virginia Office of Insurance Commissioner is
absolutely immune from suit under the Eleventh Amendment, and
should be dismissed from this action. Id. at 10.
With respect to defendant Michael Riley, because plaintiff
seeks, in part, prospective injunctive relief “to
permanently enjoin [the defendants] from violating the state
and federal laws, constitutions and human rights
described” in the complaint, the magistrate judge
recommended that Riley is a proper defendant under the Ex
parte Young exception to Eleventh Amendment immunity, and
therefore his dismissal under the Eleventh Amendment immunity
is not appropriate. Pl. Compl. at 14; PF&R at 10. The
magistrate judge found the record to be “insufficient
for the court to determine whether there are ongoing state
proceedings of important state interest in which the
plaintiff's claim raised herein could be
addressed.” PF&R at 14.
August 26, 2016, the date objections to the PF&R were
due, plaintiff filed a motion for an extension of sixty days
to file her objections. The court granted that request in
part, giving her until September 15, 2016, which was twenty
days from the date of her motion, to file objections with the
court. On September 30, 2016, when plaintiff failed to
object, the court entered an order adopting the findings in
the PF&R, which dismissed the claims against the West
Virginia Insurance Commissioner with prejudice, denied the
motion to dismiss with respect to Michael Riley, and
recommitted the matter to Judge Tinsley to allow development
of the record concerning the status of the administrative
hearing so that the Younger abstention issue could be
same day, plaintiff filed this motion alleging that the court
should have given her the 60-day extension that she requested
and listed her objections to the PF&R.
October 29, 2016, before the court ruled on plaintiff's
motion, plaintiff filed a notice of appeal of the court's
September 30, 2016 order with the United States Court of
Appeals for the Fourth Circuit. On April 27, 2017, the Fourth
Circuit dismissed plaintiff's appeal, finding that the
order plaintiff was appealing “was not a final order
nor an appealable interlocutory or collateral order.”
See ECF Doc. No. 41 at 2. The mandate followed on May 19,
2017. On March 14, 2017, Michael Riley filed a renewed motion
to dismiss, providing more detail as to why the case should
be dismissed on Younger grounds.
court has reviewed plaintiff's late objections to the
PF&R and has determined that they pertain only to the
claims that remain against Michel Riley and whether the
Younger abstention doctrine precludes plaintiff's claims
in this case. Inasmuch as the court's order only
dismissed plaintiff's claims against the West Virginia
Insurance Commission on the grounds that the 11th Amendment
barred suit against it, and deferred ruling on the motion to
dismiss against Michael Riley on Younger grounds until the
record could be fully developed, these objections are not
proper at this time. Plaintiff has not responded as to why
Younger does not apply to this case as set forth in the
renewed motion to dismiss filed by Michael Riley on March 14,
the objection to the Proposed Findings and Recommendation
(“PF&R”) and objection to the court's
memorandum opinion and order adopting the PF&R and motion
to vacate the memorandum opinion and order, filed September
30, 2016, be, and hereby is, denied.
further ordered that this matter be, and it hereby is,
recommitted to United States Magistrate Judge Dwane L.
Clerk is directed to forward copies of this written opinion
and order to all counsel of record and ...