The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ANTHONY JAMES BRAXTON,
Plaintiff,
v. Civil Action No. 2:18-cv-00585
LARRY E. HARRAH, BRIAN D.
PARSONS, and W.R. CALLISON,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the motions for summary judgment filed by
defendants Larry E. Harrah and Brian D. Parsons and by defendant
W.R. Callison, both filed October 22, 2020. ECF Nos. 151, 153.
Also pending are plaintiff’s motions titled “Plaintiff’s
Constitutional Question,” and “Plaintiff’s Constitutional
Challenge to West Virginia Contraband Forfeiture Act,” both
filed on November 3, 2020. ECF Nos. 156, 157.
On March 18, 2021, United States Magistrate Judge
Dwane L. Tinsley filed his Proposed Findings and Recommendation
(“PF&R”) as to the four pending motions. On April 5, 2021,
plaintiff made a filing stylized as a reply to defendants’
motions for summary judgment, which the court construes as
objections to the PF&R. ECF No. 167. On April 12, 2021,
defendants Callison, Harrah, and Parsons filed a response to
defendants’ reply, arguing the filing is not proper and does not
articulate an error of the magistrate judge. ECF No. 172.
Plaintiff filed a reply to defendants’ response on April 27,
2021. ECF No. 175.
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’” Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
As to the claims against Harrah and Parsons, the
magistrate judge found that plaintiff has not substantiated,
with admissible evidence, the alleged conspiracy between these
two prosecutors and local police to seize plaintiff’s property
in violation of the West Virginia Contraband Forfeiture Act
(“WVCFA”). The magistrate judge found that plaintiff’s sworn
declaration which states that the former sheriff of Fayette
County, Sheriff Kessler, told plaintiff that the money was
seized to buy “things for law enforcement” and to support
Fayette County officials’ election campaigns constitutes
inadmissible hearsay. Plaintiff’s objections do not identify
admissible evidence that such a conspiracy in fact existed or a
hearsay exception that would permit plaintiff to testify to the
statements made by the sheriff. No other evidence supports the
existence of such a conspiracy. Accordingly, the magistrate
judge’s findings are adopted as to Harrah and Parson’s motion,
and the claim against those defendants should be dismissed.
Plaintiff brings three claims against Detective
Callison concerning the process of obtaining a search warrant to
search plaintiff’s home and its execution, namely that Detective
Callison was involved in a racially motivated conspiracy to
search plaintiff’s home and seize his property, that he
knowingly used false information in an affidavit to obtain a
warrant to search plaintiff’s residence, and that he failed to
knock and announce his presence when executing the warrant.
As to the conspiracy claim, the magistrate judge found
that plaintiff had presented no evidence that Detective Callison
participated in any such conspiracy, to which plaintiff has not
objected. Similarly, the magistrate judge noted that plaintiff
had not identified any evidence that officers failed to knock
and announce themselves when executing the search warrant
whereas Callison averred that officers did knock on the front
door and announce themselves prior to breaching the door.
Plaintiff has not objected to this finding. Accordingly, the
magistrate judge’s findings are adopted as to these two claims,
which should be dismissed.
As to the claim that Callison knowingly obtained a
search warrant without probable cause, plaintiff claims that the
individual who allegedly purchased drugs from plaintiff on
February 13, 2017 as part of a controlled drug buy, Aaron
Fortner, did not in fact purchase drugs from plaintiff. Rather,
plaintiff claims, Fortner took the $90 in pre-marked money that
police provided him and simply walked around the outside of
plaintiff’s home at 1652 Prudence Road, Oak Hill in Fayette
County, West Virginia without going inside.
Detective Callison has averred that he gave Fortner
the $90, that he witnessed Fortner go around to the back of the
building where plaintiff resides, and that Fortner returned with
a brown substance in a paper packet which Fortner represented
was heroin that he had gotten from the occupant of the building.
Callison Aff., ECF No. 153-6. The West Virginia State Police
Forensic Laboratory Report determined that the substance was in
fact heroin. ECF No. 153-1 at 7. Based on what he had
observed, Callison avers that he sought a search warrant
grounded in what he believed was a reasonable probability that
heroin could be found at the home, where plaintiff has since
testified he lives alone. Callison Aff.; Braxton Dep. 6, ECF
No. 153-2. In his affidavit supporting the search warrant,
Callison averred as follows:
(D) Your affiant on 02/13/2017 conducted an
investigation in Prudence, Oak Hill area which is
located in Fayette County, WV. On 02/13/2017, your
affiant with the help of a cooperating individual
conducted a controlled purchase of Heroin from the
residence described in attachment B [1652 Prudence
Road].
E) On 02/13/2017 your affiant met with cooperating
individual, [name redacted] - whom will be referred to
as CI from this point forward at an undisclosed
location along with Detective Morris also of the
Central West Virginia Drug Task Force. I conducted a
search of the CI's person and found the CI to be clean
and clear of any monies or any drugs.
(F) The Affiant and CI met with a male subject by the
name of Aaron Fortner "Oggie" on near Summerlee Road
where the Affiant transported the CI and "Oggie" to
the residence of Anthony Braxton. On arrival at the
residence of Anthony Braxton's the Affiant gave
"Oggie" $90.00 in prerecorded Task Force money in
exchange for $90.00 worth of Heroin a schedule I
controlled substance from Anthony Braxton.
(G) Once the controlled purchased was made I obtained
the evidence from "Oggie"
(H) The CI used in this investigation has conducted
several controlled purchases of narcotics for the
Central West Virginia Drug Task Force. This CI has
proven to be credible and reliable to members of the
Drug Task Force.
(I) The residence located at 1652 Prudence Road Oak
Hill, Fayette County, WV is a known "Drug” house. The
Central West Virginia Drug Task Force has received
numerous complaints of the distribution of controlled
substances from this residence.
Id.
Fortner was ultimately indicted for that transaction
in the Circuit Court of Fayette County, West Virginia, for the
felony offense of delivery of heroin, a Schedule I controlled
substance, in violation of W. Va. Code § 60A-4-401, as set forth
in Count One of that indictment, to which he pled guilty.1 See
ECF No. 153-3 (Excerpt from Fortner’s Plea Hearing). During a
colloquy with Judge Blake at his plea hearing, Fortner stated,
as set forth in the three-page excerpt from the hearing (ECF No.
153-3), as follows:
On February 13th, I was at a friend's house and got a
call, somebody wanting something. I met them, and
they was just out on Summerlee Road. We went to
Prudence Road, which is still located in Fayette
County. I went to the guy's house and purchased
heroin and brought it back to them. And there was a
cop and the informant in the car.
Id. Fortner was convicted of the Count I offense by order of
the Circuit Court, entered on June 25, 2018. ECF No. 154-4 at
8-14.
Plaintiff fails to provide any evidence that the
search warrant was not supported by probable cause. While it
does appear that Detective Callison did not personally observe
the drug transaction, such personal observation of the drug
transaction is not necessary to demonstrate probable cause, as
1 The clerk is directed to file a copy of the indictment as an
exhibit.
the PF&R found. Moreover, while plaintiff identifies alleged
deficiencies in the controlled drug purchase, such as Detective
Callison’s failure to check Fortner for drugs before the
purchase, failure to screen Fortner for drug use, or failure to
check Fortner for the pre-marked money, plaintiff has not
demonstrated with admissible evidence that any of these failures
actually occurred or that any of these steps were necessary to
establish probable cause to obtain a search warrant.
Accordingly, the court adopts the finding that there was
sufficient probable cause to support a search warrant of
plaintiff’s home and that summary judgment is appropriate as to
all claims against Detective Callison.
The PF&R construes plaintiff’s motion titled
“Plaintiff’s Constitutional Question,” seeking a court ruling
that “it is a fundamental right to be given a property receipt
when searched by law enforcement” as a motion for summary
judgment, which would be untimely under the court’s scheduling
order. The magistrate judge aptly concluded that a finding in
plaintiff’s favor would not modify the court’s earlier ruling
that Callison is entitled to qualified immunity for the claim
that he did not provide a property receipt for funds he
allegedly seized. The PF&R found that to the extent plaintiff
was attempting to challenge the earlier ruling, he has not given
a reason to revisit that decision. Plaintiff’s objections also
do not provide a reason to revisit the earlier decision or why
granting his request would not be inconsistent with the earlier
order. Accordingly, plaintiff’s motion titled “Plaintiff’s
Constitutional Question” should be denied.
Finally, as to plaintiff’s filing titled “Plaintiff’s
Constitutional Challenge to West Virginia Contraband Forfeiture
Act” seeking to invalidate the statute as violative of the Equal
Protection Clause as-applied, of the Due Process Clauses of the
Fifth and Fourteenth Amendment, of the Eighth Amendment, of the
Ninth Amendment, and of the Thirteenth Amendment, the magistrate
judge held that plaintiff provided no admissible evidence
supporting the contention that the statute has been applied in a
racially discriminatory manner and that the due process clause
does not require pre-seizure notice that property is subject to
forfeiture. Plaintiff’s objections do not undermine the
magistrate judge’s findings as to either the Due Process Clauses
or the Equal Protection Clause. As to the remaining challenges
to the statute, they do not appear in plaintiff’s complaint and
are thus improper. Plaintiff provides no reason to consider
arguments which do not appear in his complaint.
Accordingly, it is ORDERED that:
1. Plaintiff’s objections to the PF&R be, and they hereby are,
overruled;
findings made in the PF&R of the magistrate judge be,
and they hereby are, adopted by the court and incorporated
herein;
3. Defendants Larry E. Harrah and Brian D. Parsons’ motion for
summary judgment be, and it hereby is, granted;
4. Defendant W.R. Callison’s motion for summary judgment be,
and it hereby is, granted;
5. Plaintiff’s filings titled “Plaintiff’s Constitutional
Question” and “Plaintiff’s Constitutional Challenge to West
Virginia Contraband Forfeiture Act” be, and they hereby
are, denied;
6. That this case be referred again to the magistrate judge
for any remaining proceedings.
The Clerk is directed to forward copies of this
written opinion and order to plaintiff, all counsel of record,
and the United States Magistrate Judge.
ENTER: August 12, 2021
sg nll
Jo . Copenhaver, Jr.
9 Senior United States District Jude