Ziegler v. Clay County Sheriff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JOSEPH ZIEGLER,

Plaintiff,

v. Civil Action No. 2:19-cv-00410

CLAY COUNTY SHERIFF et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are the objections to the Proposed Findings

and Recommendation (“PF&R”) of United States Magistrate Judge

Omar J. Aboulhosn, filed by the plaintiff, Joseph Ziegler, on

December 4, 2019.

I. Procedural History

The plaintiff, acting pro se, initiated this action on

April 16, 2019.1 See Compl., ECF No. 1 (“Compl.”). The

1 The plaintiff filed his Complaint and an Application and

Supplemental Motion to proceed in forma pauperis in the United

States District Court for the Eastern District of Michigan. See

ECF Nos. 1, 2, 3. On April 29, 2019, the Michigan court issued

a show cause order for why the matter should not be dismissed

for improper venue and for lack of personal jurisdiction over

the defendants. See ECF No. 7. On May 9, 2019, the plaintiff

filed a Motion Demanding Possession of Property and/or Writ of

Replevin. See ECF No. 8. On May 28, 2019, the matter was

transferred to this court due to improper venue and lack of

personal jurisdiction over the defendants. See ECF No. 11.

plaintiff names as defendants Miles Slack, M.P. Morris, Deputy

Thomas, C.C. Grose, Jim Samples, Fran King, and the Clay County,

West Virginia Sheriff.2 Id. at 1-2. The plaintiff alleges that

the defendants violated and/or conspired with each other to

violate the plaintiff’s rights under federal law and the United

States Constitution. Id. at 1-3. Based on these alleged

violations, the plaintiff claims entitlement to relief pursuant

to 42 U.S.C. §§ 1983 – 1986 et seq.; the Racketeer Influenced

and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961 – 1968;

the Federal Anti-Kickback Act, 41 U.S.C. § 51 et seq.; “and/or

any/all other Federal Statutes on violations of clearly

established Federal Civil Rights and Federal Laws as determined

by the U.S. Supreme Court under the Federal Doctrine of Laches,

and/or Law-of-the-Case Doctrine.” See id. at 1.

The plaintiff traveled to Clay County, West Virginia

on April 2, 2019, allegedly as a “Freelance Journalist” and a

“Federal Informant” regarding an allegedly ongoing federal

investigation into corrupt police officers and other public

officials in Clay County who were allegedly involved in an

unlawful enterprise of methamphetamine, opioid, and heroin

2 The complaint does not list the name of the Clay County, West

Virginia Sheriff.

distribution.3 See Compl. at 3-4. The plaintiff asserts two

claims for action arising from this trip to Clay County.

First, the plaintiff alleges that the defendants

“unlawfully threatened” him on April 3, 2019 for interviewing

local residents about the alleged drug enterprise. Id. On

April 4, 2019, the plaintiff was arrested and charged with five

misdemeanor offenses: (1) reckless driving, (2) driving without

car insurance, (3) driving an unregistered vehicle, (4) driving

without an operator’s license, and (5) driving under the

influence.4 See State of West Virginia et al. v. Ziegler, 2:19-

cv-00325, Commitment Order, ECF No. 3-1. The plaintiff asserts

that defendants Miles Slack, M.P. Morris, Deputy Thomas, and

C.C. Grose violated his rights by unlawfully

3 It is the belief of the court that the plaintiff traveled from

Michigan because he alleges that he resides within the

jurisdiction of the United States District Court for the Eastern

District of Michigan. See Compl. at 3.

4 The state criminal case is number 19-M08M-00187 before the

Magistrate Court of Clay County, West Virginia. The plaintiff

filed a notice of removal of that case to this court on April

26, 2019. See State of West Virginia et al. v. Ziegler, 2:19-

cv-00325, Notice of Removal, ECF No. 3. The removal case was

remanded to the Clay County Magistrate Court on September 19,

2019. See 2:19-cv-00325, Mem. Opinion & Order, ECF No. 7. The

plaintiff’s motion for relief from judgment on the remand was

denied on January 28, 2020. See 2:19-cv-00325, Mem. Opinion &

Order, ECF No. 12.

charging him.5 Compl. at 4.

The plaintiff further asserts that defendant Jim

Samples, the prosecuting attorney for Clay County, West

Virginia, “unlawfully charged [the plaintiff] . . . while acting

under color of law,” and that defendant Miles Slack, a former

Clay County Sheriff,6 failed to train adequately “subordinate Co-

Defendants concerning the unlawful towing/seizure/forfeiture” of

the plaintiff’s property, an undriveable motor vehicle.7 See id.

In a supplemental motion, the plaintiff alleges that defendants

M.P. Morris and Deputy Thomas unlawfully dispatched defendant

Fran King, the owner of King’s Towing, to tow the plaintiff’s

vehicle from private property without the plaintiff’s

permission, without the plaintiff “being allowed to make other

5 It is noted that the plaintiff was also charged in this court

with two counts of impersonating a federal officer or employee

in violation of 18 U.S.C. § 912 on April 4, 2019 and April 8,

2019. United States of America v. Ziegler, 2:19-cr-00148-1,

Judgment, ECF No. 115. A jury found the plaintiff guilty on

both charges, and the plaintiff was sentenced to time served.

Id.

6 The court notes that defendant Miles Slack is a former Clay

County Sheriff, but the pleadings do not clarify if Slack was an

active law enforcement officer at the time of the alleged

events.

7 The plaintiff alleges that he legally inherited his vehicle, a

2018 Ford Escape with Michigan license plates and “full coverage

insurance,” from the Oakland County Probate Court Judge in

Pontiac, Michigan, and that the vehicle was lawfully parked on

private property at a friend’s residence in Clay, West Virginia.

Compl. at 4.

arrangements by Right,” and without conducting a required

inventory search for personal property within the vehicle as

required by law. See Mot. Demand Property, ECF No. 8 (“Mot.

Demand Property”) at 2-3. The plaintiff specifically argues

that the defendants deprived him of his property “in violation

of his Federal Equal Protection Right not to be Discriminated

against based upon his Race, Disability, National Origin for

being engaged in a Federally protected Right/Privilege to

Freedom of the Press, Association, and clearly established Right

not to be deprived of Property without Due Process of Law.” See

Compl. at 4.

Second, the plaintiff alleges that he met with

defendants Jim Samples, M.P. Morris, and Fran King on April 5,

2019 regarding the “unlawful towing/ seizure” of his vehicle.

Id. at 5. In the supplemental motion, the plaintiff claims that

he called King’s Towing on April 5, 2019 and that defendant Fran

King falsely told him that he would need to get a release from

the Clay County Sheriff’s Department, which resulted in

defendant King unnecessarily and unlawfully holding the

plaintiff’s vehicle over the weekend and charging unreasonable

storage fees. See Mot. Demand Property at 3.

The plaintiff also alleges that he went to King’s

Towing where defendants Jim Samples, M.P. Morris, and Fran King

threatened to arrest and physically assault him, “including the

Defendants not sending [the] Plaintiff any letters or notices in

the mail of any/all court dates for [the] Plaintiff to appear in

court.”8 See Compl. at 5; Mot. Demand Property at 3. In the

supplemental motion, the plaintiff alleges that he went to

King’s Towing on April 8, 2019 and that defendant M.P. Morris

physically threatened the plaintiff with arrest if he were to

talk about the incident or to file anything in federal court.

See Mot. Demand Property at 3.

The plaintiff demands a jury trial and seeks

declaratory, injunctive, and writ of replevin relief, as well as

one million dollars for “actual, compensatory, treble, and/or

punitive damages.”9 See Compl. at 6-8. Along with the

complaint, the plaintiff also filed an application to proceed

without prepaying fees or costs, and a supplemental motion to

proceed in forma pauperis. See App. In Forma Pauperis, ECF No.

2; Supp. Mot. In Forma Pauperis, ECF No. 3.

8 The court understands this allegation to be in reference to the

charges in case number 19-M08M-00187 before the Magistrate Court

of Clay County, West Virginia. The plaintiff’s complaint does

not specify on which date the alleged threat occurred. See

Compl. at 5.

9 The plaintiff phrases this demand as a third claim for action

for “an immediate Order for Preliminary Injunction.” See Compl.

at 5-6.

On May 9, 2019, the plaintiff filed a supplemental

motion demanding possession of property and/or writ or replevin

for the plaintiff’s vehicle. See Mot. Demand Property. In this

motion, the plaintiff repeats his allegations regarding the

unlawful towing of his vehicle. See id. at 2-3. The plaintiff

also alleges that he paid to release his vehicle on April 8,

2019 but that defendant Fran King “arbitrarily and capriciously”

refused to release the vehicle after paying for the vehicle to

be released and towed away by another private towing company.10

See id. at 3. The plaintiff also alleges that he told defendant

Fran King on May 1, 2019 about his right to remove personal

property from the vehicle but that defendant King refused to

release the personal property. See id. at 3-4. The plaintiff

demands a hearing to determine the release of his vehicle

without paying “costs/fees for towing/storage charges” from

defendant Fran King, or “unlawful kickback” to defendants Miles

Slack, M.P. Morris, Deputy Thomas, C.C. Grose, and Jim Samples.

See id. at 3.

10 The plaintiff’s friend accompanied the plaintiff to King’s

Towing and paid to release the vehicle; however, it is unclear

who paid for the vehicle to be released and towed by the other

company. See Mot. Demand Property at 3. The plaintiff later

alleges that King’s Towing was paid twice: once by the

plaintiff’s friend and once by Ford Motor Co. Repo. See Objs.

at 8.

This action was transferred to this court on May 28,

2019. See Order Transferring Case, ECF No. 11. The action was

referred to United States Magistrate Judge Omar J. Aboulhosn for

consideration in accordance with 28 U.S.C. § 636(b)(1)(B) and

the Standing Order in this district. See Standing Order, ECF

No. 13; Clerk’s Order, ECF No. 14.

On September 3, 2019, while in custody at South

Central Regional Jail following his arrest for the then pending

federal criminal charges in criminal action number 2:19-cr-

00148, the plaintiff filed a hand-written abeyance demand

wherein he recounts the issues he raised in his complaint, and

he advises the court that he filed a notice of removal in this

court to remove his pending state criminal charges in case

number 19-M08M-00187.11 See Abeyance Demand, ECF No. 15 at 1-3.

The plaintiff alleges that he is “being held in custody under

totally unconstitutional conditions, with no access to a law

library, [to] make copies of pleadings/exhibits, and is unable

to send bulk legal mail as a pretrial detainee.” Id. at 5. The

plaintiff seeks a court order for abeyance of this civil matter

until he has access to a law library to make copies, to amend

11 The notice of removal was in the state criminal case that, in

this court, became the civil case of State of West Virginia et

al. v. Ziegler, 2:19-cv-00325, which has since been remanded.

his complaint, and to be able to send and receive mail “without

obstruction.” See id. at 6.

Magistrate Judge Aboulhosn filed a PF&R on September

16, 2019, recommending that the action be dismissed pursuant to

28 U.S.C. § 1915(e)(2)(b)(ii) for failure to state a claim for

which relief can be granted. See PF&R, ECF No. 16 (“PF&R”).

The plaintiff timely filed written objections on December 4,

2019.12 See Objs., ECF No. 25 (“Objs.”).

II. Standard of Review

The court reviews de novo those portions of a

magistrate judge’s PF&R to which objections are timely filed.

28 U.S.C. § 636(b)(1); Diamond v. Colonial Life & Accident Ins.

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

III. Analysis

The plaintiff raises two objections to the PF&R: (1)

objecting to the role of the Magistrate Judge in this action,

12 The plaintiff filed two motions for enlargement of time to

file objections to the PF&R -- on September 30, 2019 and on

October 31, 2019. See First Mot. Enlargement of Time, ECF No.

17; Second Mot. Enlargement of Time, ECF No. 19. The court

granted each motion, with a final deadline set for December 13,

2019. See Order Granting First Enlargement of Time, ECF No. 18;

Order Granting Second Enlargement of Time, ECF No. 21.

and (2) objecting to a potential denial of in forma pauperis

status and of being evaluated under 28 U.S.C. § 1915. The

plaintiff also repeats the allegations of his complaint and

alleges new violations of his rights.

A. Non-Consent to the Magistrate Judge

The plaintiff first objects to the assignment of this

action to the Magistrate Judge because the parties did not

consent to a Magistrate Judge presiding over the action. See

Objs. at 2-3. The plaintiff argues that Rule 53(a)(2) of the

Federal Rules of Civil Procedure, 28 U.S.C. § 636(c), and 28

U.S.C. § 455 clearly require that either party must give consent

for a Magistrate Judge to preside over a case. See id. at 2.

The plaintiff demands that the Magistrate Judge be removed from

the proceeding and that the defendants be served. Id. at 3.

The plaintiff seems to cite Rule 53(a)(2) and 28

U.S.C. § 455 for the proposition that consent is required in

order for a Magistrate Judge to preside over this action.

However, Rule 53(a)(2) governs the disqualification of a master

appointed by the court. Similarly, 28 U.S.C. § 455 governs the

conditions under which a judge must disqualify himself in a

legal proceeding. The plaintiff does not state any reason why

the Magistrate Judge should disqualify himself, nor does the

court find such a reason from the facts presented. The court

therefore considers these provisions to be irrelevant for the

purpose of evaluating the plaintiff’s objections.

The Standing Order in the Southern District of West

Virginia regarding the assignment and referral of civil actions

to Magistrate Judges refers all civil actions filed on or after

January 1, 2016 by persons proceeding pro se to a Magistrate

Judge “for total pretrial management and submission of proposed

findings of fact and recommendations for disposition.’”}3

Standing Order, ECF No. 13 at 2. This action was referred to

the Magistrate Judge for the submission of proposed findings of

fact and a recommendation for disposition. Clerk’s Order, ECF

No. 14; see also PF&R at 1 (noting that the action was

transferred pursuant to 28 U.S.C. § 636(b) (1) (B)).

A district court may designate a Magistrate Judge to

“hear and determine” any pretrial matter pending before the

court, except for dispositive motions. See 28 U.S.C.

§ 636(b) (1) (A); United States v. Benton, 523 F.3d 424, 430 (4th

13 The United States District Court for the Eastern District of

Michigan issued a similar order to refer this action to a

Magistrate Judge “for all pretrial proceedings, including a

hearing and determination of all non-dispositive matters

pursuant to 28 U.S.C. § 636(b) (1) (A) and/or a report and

recommendation on all dispositive matters pursuant to 28 U.S.C.

§ 636(b) (1) (B).” Order, ECF No. 5.

11

Cir. 2008). This means that a Magistrate Judge may make a final

ruling on non-dispositive pretrial motions, the resolution of

which would not conclude the lawsuit. Kerr v. Marshall Univ.

Bd. of Governors, 824 F.3d 62, 72 n.7 (4th Cir. 2016). For

dispositive pretrial motions, a Magistrate Judge may make

findings of fact and submit recommendations on how the court

should rule, but “they are powerless to issue a final ruling on

such motions.” Elgin v. Dep't of Treasury, 567 U.S. 1, 19

(2012) (citing 28 U.S.C. § 636(b)(1)(A)–(B)). The district

court issues the final ruling on dispositive motions. See id.

The plaintiff misunderstands the role of consent in 28

U.S.C. § 636(c). This section authorizes a Magistrate Judge to

issue a final ruling on a dispositive motion or to preside over

a civil trial with the parties' consent. See Kerr, 824 F.3d at

72 n.7; United States v. Benton, 523 F.3d 424, 429–30 (4th Cir.

2008). Consent of the parties is not needed in this action

because the Magistrate Judge is not issuing a final ruling;

rather, he is submitting proposed findings of fact and

recommendations for the court to review in deciding a final

ruling.

B. Proceeding In Forma Pauperis

The plaintiff next argues that he should be permitted

to proceed in forma pauperis due to his indigency, and that any

denial to proceed as such would be unconstitutional. Objs. at

3-4 (citing Boddie v. Connecticut, 401 U.S. 371 (1971); Griffin

v. Illinois, 351 U.S. 12 (1956)). The plaintiff objects to the

use of 28 U.S.C. § 1915 et seq. or of the Prisoner Litigation

Reform Act (PLRA) because he alleges that he is a “Free U.S.

Citizen.” See id. at 2-3.

The court must dismiss an action filed without

prepayment of the court’s filing fees and costs (i.e., in forma

pauperis) if the complaint is frivolous, malicious, fails to

state a claim upon which relief can be granted, or seeks

monetary relief against a defendant who is immune from such

relief. See 28 U.S.C. § 1915(e)(2)(B); Chong Su Yi v.

Democratic Nat'l Comm., 666 F. App'x 279, 280 (4th Cir. 2016)

(per curiam). Section 1915(e)(2) applies to prisoner and non-

prisoner complaints filed in forma pauperis. See Chong Su Yi,

666 F. App'x at 280-81 (affirming dismissal of a non-prisoner

complaint about voting rights); Thomas v. The Salvation Army S.

Territory, 841 F.3d 632, 637 (4th Cir. 2016) (affirming

dismissal of a non-prisoner complaint about access to homeless

shelters); Michau v. Charleston Cty., S.C., 434 F.3d 725, 728

(4th Cir. 2006) (holding that § 1915 applies to the preliminary

screening of prisoner and non-prisoner complaints). Dismissals

under § 1915(e)(2)(B) should be without prejudice. Chong Su Yi,

666 F. App'x at 280; Nagy v. FMC Butner, 376 F.3d 252, 258 (4th

Cir. 2004).

The plaintiff’s application to proceed in forma

pauperis has not been denied. The Magistrate Judge properly

evaluated the sufficiency of the plaintiff’s complaint under the

legal standard for a pro se plaintiff proceeding in forma

pauperis and concluded that the complaint should be dismissed.14

See 28 U.S.C. § 1915(e)(2)(B).

C. Further Allegations

The plaintiff does not raise any specific objections

to the legal reasoning in the PF&R. The plaintiff instead

repeats facts about his claims that were already outlined in his

earlier filings. See Objs. at 5-6. To the extent any of the

facts outlined in the objections differ from the initial

complaint (ECF No. 1) or from the supplement to the complaint

14 The plaintiff mentions the PLRA, but that statute is for

redress of complaints involving prison conditions or civil

rights violations in prisons. See Jones v. Bock, 549 U.S. 199,

202-03 (2007). The plaintiff’s complaint does not involve

events in prison, so the court does not review this statute

further.

(ECF No. 8), the court is guided by the facts as presented in

these earlier filings.

The plaintiff raises several new allegations. First,

the plaintiff alleges that Magistrate Judge Aboulhosn was “fully

aware that the Clay Co [sic] Magistrate Court acted Maliciously

and Corruptly without legal Subject Matter Jurisdiction and

conspired with the Defendants . . . to RETALIATE against [the]

Plaintiff as claimed in [the] Complaint.” Id. at 7. Second,

the plaintiff alleges that he was unlawfully held without bond

in violation of his Eighth Amendment rights under the United

States Constitution.15 Id. at 7. These arguments are entirely

unrelated to the claims alleged in the complaint. The court

therefore does not consider these allegations at this time.

The court notes that the plaintiff’s criminal charges

in criminal case number 19-M08M-00187 before the Magistrate

Court of Clay County, West Virginia were dismissed with

prejudice on January 15, 2020, after the Magistrate Judge issued

his PF&R to this court. As there is no longer an ongoing

proceeding in state court, the Magistrate Judge’s adherence to

15 In his abeyance demand, the plaintiff also alleges

“unconstitutional inhumane living conditions” and other

violations related to his custody in South Central Regional

Jail. See Abeyance Demand, ECF No. 15 at 5-6. None of these

allegations relate to the claims alleged in the complaint.

the Younger abstention doctrine is no longer applicable.

However, the remainder of the Magistrate Judge’s thorough

analysis stands and supports dismissal of the case. This

analysis is unchallenged by the plaintiff in his written

objections.

IV. Conclusion

Accordingly, having received the PF&R and the

plaintiff’s objections, and having reviewed the record de novo,

it is ORDERED that:

1. The plaintiff’s objections to the PF&R be, and

they hereby are, overruled;

2. The findings and recommendation made in the PF&R

be, and they hereby are, adopted by the court and incorporated

herein, except as to the Younger issue that is no longer

pending;

3. The plaintiff’s complaint and supplement to the

complaint in the form of a motion demanding possession of

property and/or writ of replevin (ECF Nos. 1, 8) be, and they

hereby are, dismissed without prejudice;

4. The plaintiff’s application to proceed in forma

pauperis and the supplemental motion to the same (ECF Nos. 2, 3)

be, and they hereby are, denied as moot;

5. The plaintiff’s abeyance demand (ECF No. 15) be,

and it hereby is, denied as moot; and

6. The plaintiff’s action be, and it hereby is,

dismissed without prejudice and removed from the docket of the

court.

The Clerk is directed to forward copies of this

memorandum opinion and order to the plaintiff, all counsel of

record, and the United States Magistrate Judge.

ENTER: March 18, 2020

pi, L —<y—<

Jo . Copenhaver, Jr.

Senior United States District Judge

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