Penkoski v. Justice

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

RICHARD PENKOSKI,

JOHN GUNTER, JR.,

WHITNEY KOHL,

JOAN GRACE HARLEY,

and CHRIS SEVIER,

Plaintiffs,

v. CIVIL ACTION NO. 1:18CV10

(Judge Keeley)

JIM JUSTICE, in his official

capacity as Governor of West Virginia

PATRICK MORRISEY, in his official

capacity as Attorney General of West Virginia,

and JEAN BUTCHER, in her official capacity

as the Clerk of Gilmer County,

Defendants.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

Pending before the Court is the Report and Recommendation of

United States Magistrate Judge Michael J. Aloi, recommending

dismissal of the amended complaint filed by the pro se plaintiffs

in this case. Also pending are the plaintiffs’ objections to the

magistrate judge’s recommendations. For the reasons that follow,

the Court OVERRULES the plaintiffs’ objections (Dkt. Nos. 108, 109,

110, 111, 112), ADOPTS the Report and Recommendation insofar as it

is consistent with this Memorandum Opinion and Order (Dkt. No.

104), GRANTS the defendants’ motion to dismiss (Dkt. No. 69), and

DISMISSES the amended complaint WITHOUT PREJUDICE for lack of

standing.

PENKOSKI, ET AL. V. JUSTICE, ET AL. 1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

I. BACKGROUND

On January 16, 2018, the pro se plaintiffs, Richard Penkoski

(“Penkoski”), John Gunter, Jr. (“Gunter”), Whitney Kohl (“Kohl”),

Joan Grace Harley (“Harley”), and Chris Sevier (“Sevier”)

(collectively, “the Plaintiffs”), filed a complaint against

defendants Jim Justice, in his official capacity as Governor of

West Virginia, Patrick Morrisey, in his official capacity as

Attorney General of West Virginia, and Jean Butcher, in her

official capacity as the Clerk of Gilmer County (Dkt. No. 1). The

Plaintiffs take issue with the United States Supreme Court’s

same-sex marriage jurisprudence and characterize the “paramount

question” in the case as “whether parody marriage policies enforced

by the state violate the Establishment Clause” (Dkt. No. 62 at 2).

The Plaintiffs seek, among other things, declarative and

injunctive relief enjoining the state of West Virginia from legally

recognizing any form of “parody marriage,” including same-sex

marriage (Dkt. Nos. 1 at 43; 62 at 3). They also seek a ruling from

this Court overturning the Supreme Court’s decision in Obergefell

v. Hodges, 576 U.S. –––, 135 S.Ct. 2584 (2015) (Dkt. No. 62 at 3;

35). In the alternative, the Plaintiffs allege that Jean Butcher,

in her official capacity as Clerk of Gilmer County, refused to

issue Sevier, “a self-identified objectophile,” a license to marry

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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

his laptop computer, and also refused to issue Gunter, “a self-

identified polygamists [sic]” a license to marry both Kohl and

Grace. Id. at 5. The Plaintiffs contend that the refusal to issue

these marriage licenses, while issuing licenses to “individuals who

identify as homosexual,” violates the Due Process Clause, the Equal

Protection Clause, and 42 U.S.C. § 1983. Id. at 24-33.

Pursuant to 28 U.S.C. § 636 and this Court’s local rules, the

Court referred all motion practice in this case to Magistrate Judge

Aloi for a written order or report and recommendation (“R&R”) (Dkt.

No. 13). After the Governor and the Attorney General (collectively,

“the State Defendants”) filed a joint motion to dismiss (Dkt. No.

52), the Plaintiffs amended their complaint as of right on March 9,

2018 (Dkt. No. 62). Shortly thereafter, on March 30, 2018, the

State Defendants moved to dismiss the amended complaint for lack of

subject matter jurisdiction, insufficient service of process, and

failure to state a claim (Dkt. No. 69).1

On August 3, 2018, Magistrate Judge Aloi entered an R&R

recommending that the Court grant the State Defendants’ motion and

dismiss the Plaintiffs’ amended complaint (Dkt. No. 104). The R&R

first concluded that the Eleventh Amendment bars the Plaintiffs’

1 To date, defendant Jean Butcher, in her official capacity as the

Clerk of Gilmer County, has not made an appearance in the case.

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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

claims against the State Defendants. Id. at 6-8. Next, it concluded

that the Plaintiffs lack standing under Article III of the

Constitution because the amended complaint fails to allege that

they have suffered any injury in fact. Id. at 8-11. The R&R further

concluded that, notwithstanding these jurisdictional defects, the

amended complaint must nonetheless be dismissed under Federal Rule

of Procedure 12(b)(6) because the Plaintiffs have failed to state

any claim upon which relief can be granted. Id. at 12-15. Finally,

the R&R concluded that the amended complaint is frivolous and

should be dismissed as such. Id. at 15-18.

The R&R also informed the parties of their right to file

“written objections identifying the portions of the Report and

Recommendation to which objection is made, and the basis for such

objection.” Id. On August 22, 2018, the Court received the

Plaintiffs’ various “Notice[s] of Appeal Under FRCP 72 to the

District Court Judge” (Dkt. Nos. 108; 111), “Motion[s] to Appeal

the Magistrate’s Recommendations Under FRCP 72 to the District

Court Judge” (Dkt. Nos. 109; 110), and “Motion for Reconsideration

Pursuant to FRCP 72” (Dkt. No. 112), all of which it construes as

timely objections to the R&R. Accordingly, this case is now ripe

for decision.

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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

II. STANDARDS OF REVIEW

A. The R&R

When reviewing a magistrate judge’s R&R made pursuant to 28

U.S.C. § 636(b), the Court must review de novo only the portions to

which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C).

On the other hand, “the Court may adopt, without explanation, any

of the magistrate judge’s recommendations to which the prisoner

does not object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600,

603-04 (N.D. W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199

(4th Cir. 1983)). Courts will uphold those portions of a

recommendation to which no objection has been made unless they are

“clearly erroneous.” See Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 315 (4th Cir. 2005).

Vague objections to an R&R distract a district court from

“focusing on disputed issues” and defeat the purpose of an initial

screening by the magistrate judge. McPherson v. Astrue, 605 F.

Supp. 2d 744, 749 (S.D. W. Va. 2009) (citing Howard's Yellow Cabs,

Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).

Failure to raise specific errors waives the claimant’s right to a

de novo review because “general and conclusory” objections do not

warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,

47 (4th Cir. 1982); Howard's Yellow Cabs, 987 F. Supp. at 474); see

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also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D. W. Va. 2009).

Indeed, failure to file specific objections waives appellate review

of both factual and legal questions. See United States v. Schronce,

72 7 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991).

B. Pro Se Pleadings

The Court liberally construes pro se complaints. Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (“[A] pro se complaint, however

inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers” (internal citations and

quotation marks omitted)).2 Nevertheless, even under that liberal

standard, a court may not construct the plaintiff’s legal arguments

for him, nor should it “conjure up questions never squarely

2 While the Plaintiffs all appear pro se in this matter, the Court

notes that Sevier asserts that he is, or was formerly, an attorney.

See, e.g., Dkt. Nos. 62 at 5 n. 1 (stating that Sevier “is a former

. . . prosecutor for DOD and DOJ rule of law mission”); 112 at 3

(describing himself as a “former Judge Advocate General”). The

Court further notes that, despite being individually filed, the

Plaintiffs’ objections to the R&R are almost identical in substance

and style and were all mailed on the same day, in envelopes marked

with Sevier’s name and/or his last-known mailing address. See Dkt.

Nos. 108-8; 109-4; 110-1; 111-1; 112-6). From the record before it,

however, the Court is unable to determine with any certainty to the

extent to which Sevier actually drafted the pleadings or other

filings in this case. Moreover, plaintiffs Penkoski, Gunter, Kohl,

and Harley are not attorneys. Thus, the Court will consider the

pleadings as if all Plaintiffs, in fact, appeared pro se.

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[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

Cir. 1985).

III. DISCUSSION

As an initial matter, the Court observes that the Plaintiffs’

objections to the R&R consist largely of groundless and repetitive

attacks and insults against Magistrate Judge Aloi. See generally

Dkt. Nos. 108, 111, 112. Further, the Plaintiffs’ lengthy and

highly duplicative objections focus almost exclusively on the same

legal arguments raised before the magistrate judge. See Dkt. Nos.

77, 79, 80. As this Court has previously observed, “reiterations

and general objections place the Court under no obligation to

conduct a de novo review.” Reynolds v. Saad, No. 1:17CV124, 2018 WL

3374155, at *3 (N.D. W. Va. July 11, 2018), aff’d, 738 F. App’x 216

(4th Cir. 2018) (citing Diamond, 414 F. 3d. at 315).

Nevertheless, to the extent that the Plaintiffs’ Notices and

Motions can be construed as specific objections to the magistrate

judge’s recommendations, the Plaintiffs object to the

recommendations that the Court dismiss their amended complaint for

lack of standing, for failure to state a claim, and as frivolous.

Because the issue of standing is dispositive in this case, the

Court devotes the remainder of its discussion to that inquiry. See

Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (“[I]t is

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well established that the court has an independent obligation to

assure that standing exists.”).

A. Applicable Law

Article III of the Constitution limits the exercise of

judicial power to “Cases” and “Controversies,” U.S. Const. art.

III, § 2, cl. 1, and “Article III standing . . . enforces the

Constitution's case-or-controversy requirement.” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Elk Grove Unified

School Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Thus, “[t]he

requirement of standing is ‘perhaps the most important’ condition

of justiciability.” Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000) (quoting Allen

v. Wright, 468 U.S. 737, 750 (1984)).

Standing under Article III “generally requires a showing that

a plaintiff has suffered actual loss, damage or injury, or is

threatened with impairment of his or her own interests.” Lamar

Outdoor Advert. v. City of Weston, No. 2:17-CV-82, 2018 WL 3029272,

at *3 (N.D. W. Va. June 18, 2018) (citing Gladstone Realtors v.

Village of Bellwood, 441 U.S. 91, 100 (1979)). The standing inquiry

thus “ensures that a plaintiff has a sufficient personal stake in

a dispute to render judicial resolution appropriate.” Friends of

the Earth, 204 F.3d at 153 (citing Allen, 468 U.S. at 750-51). “The

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[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

burden of establishing standing to sue lies squarely on the party

claiming subject-matter jurisdiction.” Frank Krasner Enterprises,

Ltd. v. Montgomery Cty., MD, 401 F.3d 230, 233 (4th Cir. 2005)

(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

To meet the constitutional minimum for standing, a plaintiff

must establish

(1) an ‘injury in fact’ to a ‘legally protected interest’

that is both ‘(a) concrete and particularized, and (b)

actual or imminent, not conjectural or hypothetical’; (2)

a causal connection between the injury and the conduct

complained of that is ‘fairly traceable,’ and not ‘the

result of the independent action of some third party not

before the court’; and (3) a non-speculative likelihood

that the injury would be redressed by a favorable

judicial decision.

Frank Krasner, 401 F.3d at 234 (citing Lujan, 504 U.S. at 560–61

(internal quotations, brackets, and citations omitted)). “Since

they are not mere pleading requirements but rather an indispensable

part of the plaintiff’s case, each element must be supported in the

same way as any other matter on which the plaintiff bears the

burden of proof . . . . At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may

suffice.” Lujan, 504 U.S. at 561.

B. Injury in Fact

The Plaintiffs seek to enjoin the state of West Virginia “from

legally recognizing gay marriage for violating the first amendment

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[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

establishment clause [sic] for (1) constituting a non-secular

shame, for (2) serving as a defensible weapon against non-

observers, and for (3) excessive entanglement of government with

the religion of secular humanism” (Dkt. No. 62 at 3). The State

Defendants argue, in part, that the Plaintiffs have failed to

allege facts sufficient to establish any purported injury that is

fairly traceable to the challenged conduct of the defendants (Dkt.

No. 70 at 6-7). The Court agrees that the Plaintiffs have failed to

establish that they have suffered an injury in fact sufficient to

challenge the constitutionality of same-sex marriage under the

Establishment Clause.

To establish an injury in fact, the Plaintiffs must show that

they have suffered “an invasion of a legally protected interest

which is (a) concrete and particularized . . . , and (b) ‘actual or

imminent,’ not ‘conjectural’ or hypothetical.’” Lujan, 504 U.S. at

560 (internal citations omitted). Although standing may be

predicated on a non-economic injury, a plaintiff’s mere

disagreement with the law or a court’s decision does not constitute

an injury cognizable under Article III. Valley Forge Christian

College v. Ams. United for Separation of Church & State, Inc., 454

U.S. 464, 485-486 (1992) (“[T]he psychological consequence

presumably produced by observation of conduct with which one

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disagrees . . . is not an injury sufficient to confer standing

under Art. III, even though the disagreement is phrased in

constitutional terms.”). Thus, neither the Plaintiffs’ disbelief in

the legitimacy of same-sex marriage nor their disagreement with the

Supreme Court’s decisions in Obergefell and related cases

constitutes an injury in fact sufficient to confer standing.

Moreover, to the extent that the Plaintiffs argue they have

standing under the Establishment Clause as taxpayers who “have a

vested interest in how the State spends tax dollars generated and

paid for by [them],” Dkt. No. 62 at 2, this argument is unavailing.

Generally, “the interest of a federal taxpayer in seeing that

Treasury funds are spent in accordance with the Constitution does

not give rise to the kind of redressable ‘personal injury’ required

for Article III standing.” Hein v. Freedom From Religion Found.,

Inc., 551 U.S. 587, 599 (2007). In Flast v. Cohen, the Supreme

Court carved out a narrow exception to the general prohibition

against taxpayer standing to challenge “an exercise by Congress of

the taxing and spending power” in violation of the Establishment

Clause. See 392 U.S. 83, 102-04 (1968).

To establish taxpayer standing under Flast, a taxpayer must

demonstrate (1) “a logical link between that status and the type of

legislative enactment attacked,” and (2) “a nexus between that

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[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

status and the precise nature of the constitutional infringement

alleged.” Id. at 102. In Flast, the plaintiffs alleged that the

distribution of federal funds to religious schools under a federal

statute violated the Establishment Clause. Applying the two-part

test, the Court concluded that the plaintiffs had established the

“logical link between [their taxpayer] status and the type of

legislative enactment attacked” where the alleged Establishment

Clause violation was funded by a specific congressional

appropriation and was undertaken pursuant to an express

congressional mandate. Id. at 102-103.

In addition, the Supreme Court narrowly limits taxpayer

standing under the Establishment Clause to challenges to

Congressional action under Article I, Section 8. “Flast explained

that individuals suffer a particular injury when, in violation of

the Establishment Clause and by means of ‘the taxing and spending

power,’ their property is transferred through the Government's

Treasury to a sectarian entity.” Arizona Christian Sch. Tuition

Org. v. Winn, 563 U.S. 125, 126 (2011) (citing Flast, 392 U.S. at

105-06); Valley Forge, 454 U.S. at 479 (noting that Flast “limited

taxpayer standing to challenges directed only [at] exercises of

congressional power” under the Taxing and Spending Clause)

(internal quotation marks omitted). Moreover, while subsequent

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cases have modified Flast, none suggests that taxpayer standing

exists to challenge federal court rulings. See Hein, 551 U.S. at

605–609 (discussing developments in taxpayer standing since Flast).

Here, the Plaintiffs have not attacked any legislative action.

Instead, the Plaintiffs admit that, “like in Obergefell v. Hodges,

. . . this case concerns only what states may do under the

Constitution,” and that they seek to challenge the Supreme Court’s

jurisprudence permitting same-sex marriage. See Dkt. No. 62 at 3-4.

Thus, the Plaintiffs have failed to establish the requisite link

between their taxpayer status and any legislative enactment. See,

e.g., Hein, 551 U.S. at 607–09 (finding no taxpayer standing where

plaintiffs “cite[d] no statute whose application they challenge”

and rel[ied] solely on “lump-sum Congressional budget

appropriations”) (internal quotation marks omitted).

Further, despite their references to purported “coercion by

Secular Humanists [and] the LGBTQ Church,” e.g., Dkt. No. 62 at 17,

the Plaintiffs have not alleged that, by means of the tax and

spending power, their property has been transferred to any church,

religious school, or other sectarian entity. Arizona Christian, 563

U.S. at 126; see also id. at 140 (“As Flast put it: The taxpayer’s

allegation in such cases would be that his tax money is being

extracted and spent in violation of specific constitutional

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protections against such abuses of legislative power. Flast thus

understood the injury alleged in Establishment Clause challenges to

federal spending to be the very extract[ion] and spen[ding] of tax

money in aid of religion alleged by a plaintiff.”) (internal

quotation marks and citations omitted).

For these reasons, and for those more fully discussed in the

R&R, the Plaintiffs’ allegations in this case do not fall within

the narrow Flast exception to the general rule against taxpayer

standing. Accordingly, the Plaintiffs fail to qualify for taxpayer

standing under the Establishment Clause.

C. Actual Case or Controversy

Finally, to the extent that the Plaintiffs seek, in the

alternative, to “force the government to legally recognize polygamy

and man-object marriage,” Dkt. No. 62 at 4, the Plaintiffs have

failed to state a justiciable claim or controversy. The Declaratory

Judgment Act provides that, “[i]n a case of actual controversy

within its jurisdiction . . . any court of the United States . . .

may declare the rights and other legal relations of any interested

party seeking such declaration, whether or not further relief is or

could be sought.” 28 U.S.C. § 2201(a). In a declaratory judgment

action, “the question in each case is whether the facts alleged,

under all the circumstances, show that there is a substantial

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controversy, between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance of a

declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S.

118, 127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312

U.S. 270, 273 (1941)). “If a dispute is not a proper case or

controversy, the courts have no business deciding it, or expounding

the law in the course of doing so.” DaimlerChrysler, 547 U.S. at

341.

Throughout their pleadings, the Plaintiffs repeatedly describe

marriage to more than one person or to an inanimate object as

“obscene” and refer repeatedly to polygamy and man-object marriage

as forms of “parody marriage.” See, e.g., Dkt. Nos. 62 at 2, 24,

33, 35. Further, the Plaintiffs repeatedly ask the Court to enter

injunctions “enjoining the State from legally recognizing any form

of marriage other than man-woman marriage” and “enjoining the

Defendants from issuing marriage licenses to self-identified

homosexuals.” They also request declarations from this Court that

“Obergefell v. Hodges . . . is overturned” and that “man-woman

marriage is the only form of marriage, and thereby, the State can

legally recognize it.” See, e.g., Dkt. No. 62 at 34-35; see also

id. at 3 (stating that gay marriage “constitutes a non-secular

sham”), 5 (seeking to enjoin the state from recognizing “any form

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of parody marriage - to include man-man and woman-woman marriage”),

21 (seeking to enjoin the Defendants from “legally respecting,

endorsing, and enforcing gay marriage policies”).

Thus, it is clear from the record in this case that the

Plaintiffs’ “alternative” request for a declaratory judgment

“forc[ing] the government to legally recognize polygamy and man-

object marriage” does not constitute a real request for relief.

Therefore, because the Plaintiffs present no real interest in

marrying an inanimate object or each other, their claim fails to

qualify as an actual case or controversy for purposes of Article

III.

IV. CONCLUSION

For the reasons discussed, the Court:

• OVERRULES the plaintiffs’ objections (Dkt. Nos. 108, 109,

110, 111, 112);

• ADOPTS the R&R to the extent consistent with this

Memorandum Opinion and Order (Dkt. No. 104);

• GRANTS the defendants’ motion to dismiss the amended

complaint (Dkt. No. 69);

• DENIES the plaintiffs’ motions for default judgment (Dkt.

Nos. 108, 109, 110, 111); and

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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]

• DISMISSES the amended complaint WITHOUT PREJUDICE for

lack of standing (Dkt. No. 62).

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to the pro se parties, certified mail, return receipt requested,

and to counsel of record. It further DIRECTS the Clerk to STRIKE

this case from the Court’s active docket.

Dated: November 9, 2018

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

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