# Green v. State of West Virginia

> District Court, S.D. West Virginia · November 7, 2017

URL: https://www.frixlaw.com/law-library/cases/10726996

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** November 7, 2017
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON

CECIL GREEN,

Plaintiff,

v. Case No. 2:15-cv-02664

STATE OF WEST VIRGNIA,
BOONE COUNTY CIRCUIT COURT,
BOONE COUNTY STATE ATTORNEY,
JENNIFER ANDERSON, Assistant Prosecuting Attorney,
WILLIAM THOMPSON, Judge,

Defendants.

PROPOSED FINDINGS AND RECOMMENDATION

On March 6, 2015, the plaintiff, who is proceeding pro se, filed the instant
Complaint (ECF No. 1) and an Affidavit or Declaration to Proceed In Forma Pauperis
(ECF No. 1). On March 20, 2015, the plaintiff filed an Application to Proceed Without
Prepayment of Fees and Costs (ECF No. 5). This matter is assigned to the Honorable
Thomas E. Johnson, United States District Judge, and it is referred to the undersigned
United States Magistrate Judge for submission of proposed findings and a
recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B), the court is obliged to
screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss
the case if the complaint is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted
where a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. § 1915A.1 This screening is done prior to consideration of
an Application to Proceed without Prepayment of Fees and Costs, and notwithstanding
the payment of any filing fee. A "frivolous" case has been defined as one which is based

on an indisputably meritless legal theory. Denton v. Hernandez, 504 U.S. 25 (1992). A
"frivolous" claim lacks "an arguable basis either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989).
Pro se complaints are held to less stringent standards than those drafted by
attorneys, and the court is obliged to construe liberally such complaints. However, in Bell
Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed that a
case should be dismissed for failure to state a claim upon which relief can be granted if,
viewing the well-pleaded factual allegations in the complaint as true and in the light most
favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to
relief that is plausible on its face.” While the complaint need not assert “detailed factual
allegations,” it must contain “more than labels and conclusions” or a “formulaic recitation

of the elements of a cause of action.” Id. at 555.
The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 129
S. Ct. 1937 (2009), a civil rights case. The Court wrote:
Two working principles underlie our decision in Twombly. First, the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice. [Twombly, 550 U.S.] at 555, 127 S. Ct. 1955 (Although for the
purposes of a motion to dismiss we must take all of the factual allegations

1 The plaintiff is a prisoner who also seeks to proceed in forma pauperis. Thus, both of these statutory
provisions are applicable in this case.
in the complaint as true, we “are not bound to accept as true a legal
conclusion couched as a factual allegation” (internal quotation marks
omitted). Rule 8 . . . does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss. Id., at 556.

* * *

In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.

129 S. Ct. at 1949-50.
Because the plaintiff’s Complaint fails to state a claim upon which relief can be
granted, the defendants have not been served with process and should not be required
to appear or defend this matter.
THE PLAINTIFF’S ALLEGATIONS
The plaintiff’s Complaint addresses several issues concerning his convictions in the
Circuit Court of Boone County, West Virginia. Specifically, the Complaint alleges as
follows:
The plaintiff appeared before Judge Thompson and the Boone County
Circuit Court (Dec 19, 2013-July 11, 2014). Present at this hearing were
1) Billy Joe Stedman
2) Haylie Stedman
3) Shawn Harper
All to be deposed and called as witnesses on the plaintiff’s behalf. At one
hearing in particular, the state attorney Jennifer Anderson admitted when
questioned by the judge that all she had in the way of evidence was “a black
image.” The plaintiff’s girlfriend, Shawn Harper, reacted by simply shaking
her head. The judge knowing there was no case against the plaintiff lashed
out ordering her to leave the courtroom. Doing as she was ordered she
spoke to the plaintiff as she was leaving - trying to console him. The judge
charged her with contempt and ordered her to be arrested. After a short “off
the record” conversation with the state attorney – they came to the plaintiff
with an ultimatum – they would release his girlfriend “only” if he would
plea[d] guilty to the charge. This is nothing short of the state attorney and
Circuit Judge conspiring together to not just “extort and threaten” but to
hold a person’s loved one hostage and negotiate a price for her release –
that’s kidnapping. Action like this from state officials simply rock the
foundation of our legal system. This is a clear violation of the plaintiff’s civil
and constitutional rights. It’s also a violation of the civil rights of Shawn
Harper. This court also contend there was a hearing on Oct 11, 2012 stating
“clearly” the plaintiff appeared in person. This did not happen. It’s a
fabricated story by the state to try and cover the deliberate indifference to
the health, welfare and safety of this plaintiff. These officials are [illegible]
acting in color of the law. We are not a 3rd world country where we can take
hostages and demand a ransom for the release. In our nation and under our
constitution such acts are known as “acts of terrorism.” This court should
not and cannot allow state officials to act in such a manor [sic; manner].
They must be held accountable for their actions.

(ECF No. 1 at 2-3). The Complaint seeks monetary damages and the suspension or
disbarment of Ms. Anderson and Judge Thompson.
On April 13, 2015, the plaintiff filed an “Emergency Supplement/Additional
Documentation” (ECF No. 7), in which he alleges that he was being held in custody
beyond his discharge date in violation of an agreement made by the Circuit Court to run
his sentences concurrently. Therefore, he requests his immediate release from
confinement. (Id.)
ANALYSIS
There are several reasons that the plaintiff’s Complaint and the Emergency
Supplement should be dismissed for failure to state a claim upon which relief may be
granted, each of which will be addressed herein.
A. The plaintiff’s claims and his request for release from
confinement must be addressed in a petition for a writ of habeas
corpus and the plaintiff has not exhausted available state court
remedies.

The plaintiff’s claims concerning the conduct of the prosecutor and the Circuit
Court judge during his criminal proceedings, and his attendant requests to be released
from confinement, amount to requests to grant habeas corpus relief, and necessarily call
into question the validity of the plaintiff’s conviction. His request to be immediately
released contained in his Emergency Supplement concerning his sentence calculation
must also be first addressed in a habeas corpus petition in the state courts.
The plaintiff has not demonstrated that he has exhausted his available state court

habeas corpus remedies; thus, this court cannot presently grant such relief. See 28 U.S.C.
§ 2254(b)(1)(A). The plaintiff must first present these claims to the state courts.
B. The plaintiff’s damages claims are presently barred.
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that,
in order to recover damages for an allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a plaintiff suing under 42 U.S.C. § 1983 must prove that
the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court=s issuance of a writ of habeas corpus, 28 U.S.C. '
2254. A claim for damages bearing that relationship to a conviction or sentence that has

not been so invalidated is not cognizable under section 1983.
In the instant case, the plaintiff seeks monetary damages resulting from alleged
improprieties during his criminal prosecution, which he claims resulted in his coerced
conviction. However, he has not demonstrated that his criminal proceedings have been
invalidated. Therefore, because the plaintiff’s Complaint seeks damages in a section 1983
suit and, because it appears that his allegations bear on the validity of his criminal
proceedings, he may not seek damages under section 1983 unless and until he can show
that his conviction and sentence have been invalidated. Accordingly, the undersigned
proposes that the presiding District Judge FIND that the plaintiff’s Complaint for
monetary damages against the defendants is barred under Heck v. Humphrey.
C. Judge Thompson is absolutely immune from liability on the
plaintiff’s claims against him.

The plaintiff has named the Honorable William Thompson, Judge of the Circuit
Court of Boone County, as a defendant. Concerning the allegations contained in the
Complaint, Judge Thompson was a judicial officer who was engaged in his official judicial
duties in connection with the plaintiff’s case when all of the challenged conduct allegedly
occurred. It is firmly settled that judges are immune from liability for damages for acts
committed within their judicial jurisdiction, even when the judge is accused of acting
maliciously and corruptly. Pierson v. Ray, 386 U.S. 547, 554 (1967). The Pierson Court
further found that:
It is a judge’s duty to decide all cases within his jurisdiction that are brought
before him, including controversial cases that arouse the most intense
feelings in the litigants. His errors may be corrected on appeal, but he
should not have to fear that unsatisfied litigants may hound him with
litigation charging malice or corruption. Imposing such a burden on judges
would contribute not to principled and fearless decision-making, but to
intimidation.

We do not believe that this settled principle of law was abolished by
§ 1983, which makes liable “every person” who under color of law deprives
another person of his civil rights. The legislative record gives no clear
indication that Congress meant to abolish wholesale all common-law
immunities.

Id. Due to the clear and unequivocal application of absolute judicial immunity, the
plaintiff’s claims against Judge Thompson should be dismissed with prejudice.
Accordingly, the undersigned proposes that the presiding District Judge FIND
that Plaintiff’s Complaint against defendant Thompson is barred by absolute judicial
immunity and, thus, fails to state a claim upon which relief can be granted against him.
D. Assistant Prosecuting Attorney Jennifer Anderson is also
absolutely immune from liability with respect to the plaintiff’s
claims against her.

The plaintiff has also named Boone County Assistant Prosecuting Attorney
Jennifer Anderson, and the “Boone County State Attorney”2 as defendants herein.
However, a prosecutor is a “quasi-judicial” officer who enjoys absolute immunity when
performing prosecutorial, as opposed to investigative or administrative, functions. In
Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Supreme Court reviewed its rulings in
cases addressing absolute and qualified immunity of public officials as follows:
In Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed.2d 128
(1976), we held that a state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosecution, including presentation of
the state’s case at trial. * * * We concluded that the common-law rule of
immunity for prosecutors was “well settled” and that “the same
considerations of public policy that underlie the common-law rule likewise
countenance absolute immunity under § 1983.” Id. at 424, 96 S. Ct., at 992.
Those considerations supported a rule of absolute immunity for conduct of
prosecutors that was “intimately associated with the judicial phase of the
criminal process.” Id., at 430, 96 S. Ct., at 995. * * *

We applied the Imbler analysis two Terms ago in Burns v. Reed, 500
U.S. 478, 111 S. Ct. 1934, 114 L. Ed.2d 547 (1991). There the § 1983 suit
challenged two acts by a prosecutor: (1) giving legal advice to the police on
the propriety of hypnotizing a suspect and on whether probable cause
existed to arrest that suspect, and (2) participating in a probable-cause
hearing. We held that only the latter was entitled to absolute immunity.
Immunity for that action under § 1983 accorded with the common-law
absolute immunity of prosecutors and other attorneys for eliciting false or
defamatory testimony from witnesses or for making false or defamatory
statements during, and related to, judicial proceedings. Id., at 489, 111 S.
Ct. at 1941-42; id., at 501, 111 S. Ct. at 1947.

509 U.S. at 269-70. “[T]he Imbler approach focuses on the conduct for which immunity
is claimed, not on the harm that the conduct may have caused or the question whether it
was lawful.” Id., at 271-72.

2 In West Virginia, the county prosecuting attorney is the equivalent of a “state attorney.”
To the extent that the plaintiff’s Complaint contains specific allegations against Ms.
Anderson, it would appear that the actions taken by Anderson with respect to the plaintiff
were discretionary decisions related to the prosecution of the plaintiff’s criminal case, for
which actions defendant Anderson and her office are absolutely immune, under the
holding of Imbler. These actions were “intimately associated with the judicial phase of

the criminal process.” Imbler, 424 U.S. at 430. Accordingly, the undersigned proposes
that the presiding District Judge FIND that defendant Anderson is absolutely immune
from suit on the plaintiff’s claim for damages and, thus, the Complaint fails to state a
claim upon which relief may be granted against him.
E. Eleventh Amendment immunity.
To the extent that the plaintiff has also sued the State of West Virginia, the Boone
County Circuit Court, which is supervised by the Supreme Court of Appeals of West
Virginia (the “SCAWV”) and, thus, is as an arm of the State of West Virginia, and Judge
Thompson, who, in his official capacity, is also supervised by the SCAWV, those
defendants are also immune from suit for monetary damages under the Eleventh
Amendment of the United States Constitution and are not persons who can be sued under

42 U.S.C. § 1983 . In Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989), the
Supreme Court held that neither a State nor its officials acting in their official capacities
are “persons” under § 1983.
Furthermore, pursuant to the Eleventh Amendment to the United States
Constitution, the power of the federal judiciary does not extend to suits by a citizen of one
state against another, or to suits by a citizen against his or her own state. Hans v.
Louisiana, 134 U.S. 1, 9 (1980). Thus, the Eleventh Amendment of the United States
Constitution bars a suit in a federal court by private parties seeking to impose monetary
liability upon a State or State officials, which may be paid from public funds in the state
treasury. Quern v. Jordan, 440 U.S. 332, 337 (1979). Absent consent, federal suits
against a state by a citizen of that state or another state are prohibited by the Eleventh
Amendment. Kentucky v. Graham, 473 U.S. 159, 199 (1985); Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 99-100 (1984).

For these reasons, the undersigned proposes that the presiding District Judge
FIND that the State of West Virginia, the Boone County Circuit Court, is not a proper
party who can be sued under 42 U.S.C. § 1983 and is immune from liability for monetary
damages under the Eleventh Amendment.
F. The plaintiff lacks standing to raise any claims on behalf of
Shawn Harper.

To state a federal civil rights claim, a plaintiff must allege that he, himself,
sustained a deprivation of the rights, privileges or immunities provided by the United
States Constitution or federal law. Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977).
In the instant matter, the plaintiff alleges claims on his own behalf, as well as on behalf of
his girlfriend, Shawn Harper, who was allegedly charged with contempt of court.
To demonstrate standing, the plaintiff must allege a personal injury fairly traceable
to a defendant’s allegedly unlawful conduct that may be addressed by the requested relief.
Allen v. Wright, 468 U.S. 737, 751 (1984). Thus, the plaintiff lacks standing to present
any claims on behalf of Shawn Harper.
RECOMMENDATION
For the reasons stated herein, the undersigned proposes that the presiding District
Judge FIND that the plaintiff’s Complaint (ECF No. 1) and Emergency Supplement (ECF
No. 7) fail to state a claim upon which relief can be granted. It is respectfully
RECOMMENDED that the presiding District Judge DISMISS this civil action
pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B) and 1915A, and DENY the
plaintiff's Application to Proceed without Prepayment of Fees and Costs (ECF No. 5), with
a waiver of the applicable filing fee.
The plaintiff is notified that this Proposed Findings and Recommendation is
hereby FILED, and a copy will be submitted to the Honorable Thomas E. Johnson, Chief
United States District Judge. Pursuant to the provisions of Title 28, United States Code,
Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, the
plaintiff shall have fourteen days (filing of objections) and three days (mailing) from the
date of filing this Proposed Findings and Recommendation within which to file with the
Clerk of this Court, specific written objections, identifying the portions of the Proposed
Findings and Recommendation to which objection is made, and the basis of such
objection. Extension of this time period may be granted by the presiding District Judge
for good cause shown.
Failure to file written objections 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). Copies of such objections shall be provided to Chief Judge
Johnston.
The Clerk is directed to file this Proposed Findings and Recommendation and to
mail a copy of the same to the plaintiff.

November 7, 2017 [ □□ on —— a
Dwane L. Tinsley
10 __ United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726996. Public record. Not legal advice.