Thompson v. Toney

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

MAURICE-EDWARD: THOMPSON,

Plaintiff,

vs. CIVIL ACTION NO. 5:24-CV-00541

RAY W. TONEY,

Assistant Prosecutor,

Defendant.

PROPOSED FINDINGS AND RECOMMENDATION

Pending before this Court is the Plaintiff’s Application to Proceed Without Prepayment of

Fees and Costs, filed on October 2, 2024. (ECF No. 1) By Standing Order, this matter was referred

to the undersigned for the submission of proposed findings of fact and a recommendation for

disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 3) Having examined the Complaint,

the undersigned concludes that this case must be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(b)(ii) which provides that the Court shall dismiss the case of a person proceeding in

forma pauperis at any time if the Court determines that the action fails to state a claim for which

relief can be granted.1

The Plaintiff’s Allegations

The Plaintiff brings a Section 1983 claim, alleging that the Defendant, an assistant

prosecuting attorney for Fayette County, West Virginia, violated the Plaintiff’s rights secured by

the Constitution, specifically: (1) “Article III Section 2”; (2) “Article IV Section 2”; (3)

“Amendment IV”; (4) “Amendment V”; and (5) “Amendment VI.” In addition, the Plaintiff alleges

1 Because the Plaintiff is proceeding pro se, the documents he filed in this case are held to a less stringent standard

than had they been prepared by a lawyer, therefore, they are construed liberally. See Haines v. Kerner, 404 U.S. 519,

520-521 (1972).

the Defendant “acted under color of law”, indicating the Defendant “filed a frivolous lawsuit”

against the Plaintiff for driving without a license – which resulted in proceedings being held in the

Oak Hill Municipal Court of Fayette County, West Virginia occurring sometime in May 2024.

The Plaintiff alleges the Defendant was aware of the Plaintiff’s rights, but acted with

“aggression” by threatening to treat the Plaintiff harshly – the Plaintiff indicates that his girlfriend

and the public defender heard the Defendant say “how he was going to treat me and violate my

rights.” The Plaintiff also alleges that the Defendant had defamed the Plaintiff by calling him a

“sovereign citizen” and that “Municipal Judge Wilbur Toney allowed the [Defendant] to

sustain/overruled my objections claiming I was a ‘driver’, ‘operator’, or in a commercial capacity.”

The Plaintiff alleges that the Defendant knew the complaint and warrant were void.

The Plaintiff indicates that he was afraid of going near Fayette County because of the

“aggressiveness of the officers towards me as well as the Respondent. I had to go to the hospital

because of back problems.” The Plaintiff seeks an apology from the “Respondent” and that he

follow court procedures as well as recognition that “all citizens are not ‘sovereign citizens’ ” as

well as $100,000 in monetary damages because of the “aggressiveness of the Respondent and

placing the Petitioner ‘threat, coercion, and duress.’ ”

THE STANDARD

Because the Plaintiff has applied to proceed without prepayment of the Court’s filing fees

and costs, the Complaint is subject to pre-service screening pursuant to 28 U.S.C. § 1915. See

Randolph v. Baltimore City States Atty., 2014 WL 5293708, at *2 (D. Md. Oct. 14, 2014), aff’d,

Randolph v. New Technology, 588 Fed.Appx. 219 (4th Cir. 2014). On screening, the Court must

recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim

upon which relief can be granted. A “frivolous” complaint is one which is based upon 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).

A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.”

Id., 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or

delusional scenarios.” Id., 490 U.S. at 327-328. A complaint, therefore, fails to state a claim upon

which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief. Deference is given to pro se

Complaints. See Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (A District Court should

allow pro se plaintiffs reasonable opportunity to develop pleadings.); Coleman v. Peyton, 370 F.2d

603, 604 (4th Cir. 1965) (Pro se plaintiff should be given an opportunity to particularize potentially

viable claims.). A pro se Complaint may therefore be dismissed for failure to state a claim only if

it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 521 (1972), quoting Conley v. Gibson,

355 U.S. 41, 45-46 (1957). Where a pro se Complaint can be remedied by an amendment, however,

the District Court may not dismiss the Complaint, but must permit the amendment. Denton v.

Hernandez, 504 U.S. 25, 34 (1992).

Though this Court is required to liberally construe pro se documents and hold them to a

less stringent standard than those drafted by attorneys2, liberal construction “does not require

courts to construct arguments or theories for a pro se plaintiff because this would place a court in

the improper role of an advocate seeking out the strongest arguments and most successful

strategies for a party.” Miller v. Jack, 2007 WL 2050409, at *3 (N.D.W. Va. 2007)(citing Gordon

v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the

2 Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295

(1978).

“courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton,

775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for

a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal

construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts

which set forth a claim currently cognizable in a federal district court. Weller v. Department of

Social Servs., 901 F.2d 387 (4th Cir.1990)).

Analysis

Rule 8 of the Federal Rules of Civil Procedure:

The Plaintiff is required to comply with the general rules of pleading as set forth in Rule

8(a) of the Federal Rules of Civil Procedure. That Rule provides as follows:

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the Court’s jurisdiction, unless the

court already has jurisdiction and the claim needs no jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief;

and

(3) a demand for the relief sought, which may include relief in the alternative or

different types of relief.

The Plaintiff’s claims do not comply with Rule 8(a) for failing to allege sufficient facts and

circumstances showing entitlement to relief. After having liberally reviewed the Plaintiff’s

allegations, it is clear that he is suing the prosecutor that is involved in prosecuting the Plaintiff’s

ostensible violation of the State’s licensing requirements for motorists.3 Moreover, the Plaintiff

only provides “naked assertion[s]” that the prosecutor violated his civil rights which are verboten

pursuant to the jurisprudence espoused under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

3 Pursuant to W. Va. Code § 17B-2-1.

Although a 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.”

Twombly, 550 U.S. at 555 (citations omitted). To survive dismissal for failure to state a claim, the

complaint must raise a right to relief that is more than speculative. Id. In other words, the complaint

must contain allegations that are “plausible” on their face, rather than merely “conceivable.” Id. at

555, 570. A “claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

at 556.

As noted supra, the Plaintiff has generally alleged that the Defendant violated his rights

during a prosecution against the Plaintiff for driving without a license when he was stopped by

law enforcement. The Plaintiff also provides no factual support for his claim for defamation of

character, save for his allegation that the Defendant referred to the Plaintiff as a sovereign citizen.4

(See ECF No. 2 at 3, ¶3.C.) In any event, the undersigned finds that the Plaintiff’s claims against

the Defendant are improper and should be dismissed. Additionally, the Plaintiff does not allege

any specific facts with respect to the Defendant’s alleged “aggressiveness” towards the Plaintiff

or how the Defendant placed the Plaintiff under “threat, coercion, and duress”, let alone how this

Defendant is at all connected to the Plaintiff seeking medical care for his alleged “back problems.”

4 To the extent the Plaintiff is claiming that the Defendant defamed his character in violation of a federally protected

right, his claim is without merit. See Siegert v. Gilley, 500 U.S. 226, 233, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277

(1991)(“Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation.”);

Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 1165 - 66, 47 L.Ed.2d 405 (1976)(finding that “any harm or injury

to [Plaintiff’s interest in his reputation], even where as here inflicted by an officer of the State, does not result in a

deprivation of any ‘liberty’ or ‘property’ recognized by state or federal law”); Saunders v. Dickerson, 2008 WL

2543428 *2 (E.D. Va. Jun. 25, 2008)(stating that “[p]laintiff’s reputation is protected through state tort law, and a

mere allegation of damage to one’s reputation and character fails to implicate any liberty or property interests protected

by the Constitution”); Sterne v. Thompson, 2005 WL 2563179 at *4 (E.D. Va.)(“It is well established that a

defamatory statement and a concomitant injury to reputation, by themselves, are insufficient to support a Bivens claim

under the Fifth Amendment.”); Miller v. Jack, 2007 WL 2050409 (N.D.W. Va. Jul. 12, 2007)(finding that “damages

for defamation are not recoverable under § 1983 because a defamed person has not been deprived of any right,

privilege, or immunity secured to him by the Constitution or the laws of the United States”).

(Id. at 3, ¶¶4, 5) Thus, because he does not provide any factual support for his claims entitling him

to relief, the Plaintiff’s Complaint is not salvageable even if he were permitted to amend them in

the spirit of Denton v. Hernandez, supra.

Younger-Abstention Doctrine:

Based on the Plaintiff’s own allegations that these municipal court proceedings started

sometime in May 2024, there appears to be some ongoing proceedings involving his license to

operate a motor vehicle. Accordingly, this Court should abstain from exercising subject matter

jurisdiction over the Plaintiff’s claims based upon the Younger-abstention doctrine. See Younger

v. Harris, 401 U.S. 37 (1971). “Under the Younger-abstention doctrine, interest of comity and

federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been

or could be presented in ongoing state judicial proceedings that concern important state interests.”

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-238 (1984).

The Fourth Circuit has recognized that “Younger abstention is appropriate only in those

cases in which (1) there is an ongoing state judicial proceeding, (2) the proceeding implicates

important state interest, and (3) there is an adequate opportunity to present the federal claims in

the state proceeding.” Employers Resource Management Co., Inc. v. Shannon, 65 F.3d 1126, 1134

(4th Cir. 1995), cert. denied, 516 U.S. 1094, (1996). A court should disregard Younger’s mandate

only where “(1) there is a showing of bad faith or harassment by state officials responsible for the

prosecution; (2) the state law to be applied in the criminal proceeding is flagrantly and patently

violative of express constitutional prohibitions; or (3) other extraordinary circumstances exist that

present a threat of immediate and irreparable injury.” Nivens v. Gilchrist, 44 F.3d 237, 241 (4th

Cir. 2006) (internal quotations omitted). “[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar

of Younger abstention by setting forth more than mere allegations of bad faith or harassment.”

Phelps v. Hamilton, 122 F.3d 885, 890 (10th Cir. 1997).

The Younger abstention has been extended to civil litigation brought by the state to

vindicate its policies. Huffman v. Pursue, Ltd., 420 U.S. 592, 604–05, 95 S.Ct. 1200, 43 L.Ed.2d

482 (1975); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Moore v.

Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This includes child-welfare and child-

custody proceedings. Moore, 442 U.S. at 423, 99 S.Ct. 2371 (applying Younger to state-initiated

custody litigation).

The undersigned finds that the Younger abstention doctrine may apply in the instant case,

as there is no indication from the Plaintiff’s claims that the State-initiated proceedings have

concluded. Despite the Plaintiff’s conclusory allegations that the Defendant prosecuting him

constitutes harassment, the Plaintiff provides no grounds that support any of the enumerated

Nivens exceptions to the Younger mandate: the Plaintiff fails to show improper prosecution against

him in State court, or facts supporting a claim for unreasonable harassment that comports with the

bad faith exception.

It is also notable that the Plaintiff is seeking a species of injunctive or declaratory relief, to

the extent that he wants this Court to make the Defendant “apologize in a professional manner and

to follow court procedures . . . [and] [t]o recognize all citizens are not ‘sovereign citizens.’ ” (ECF

No. 2 at 3, ¶5) Courts have long recognized that such extraordinary remedies may only be used

sparingly and in limited circumstances. See, e.g., Sarsour v. Trump, 245 F.Supp.3d 719 (E.D. Va.

Mar. 24, 2017). To prevail on such a remedy, the Plaintiff bears the burden to establish that (1) he

is likely to succeed on the merits of his case; (2) he is likely to suffer irreparable harm in the

absence of injunctive relief; (3) the balance of the equities tips in his favor; and (4) an injunction

would be in the public interest. See Fed. R. Civ. P. 65. As demonstrated above, this Court can

exercise no jurisdiction over the parties and matters indicated in the Plaintiff’s Complaint,

therefore, this Court is unable to provide injunctive relief in accordance with the Plaintiff’s request,

particularly given how facially absurd they are. Since there has been no appreciable showing that

such an extraordinary remedy would be in the public interest, or that the Plaintiff is likely to suffer

any irreparable harm in the absence of same, to the extent these particular prayers for relief can be

construed as requests for injunctive relief they must be denied.

Legal Immunities:

Finally, and most importantly, given the Plaintiff’s de minimis factual allegations against

the Defendant, he has failed to state a claim against the Defendant upon which relief can be

granted. The Defendant is a prosecutor, and the Plaintiff’s allegations solely concern court

proceedings. Accordingly, the Defendant is entitled to absolute immunity: prosecutors have

absolute immunity for activities performed as “an officer of the court” if the conduct at issue is

closely associated with the judicial phase of the criminal process. Van de Kamp v. Goldstein, 555

U.S. 335, 341 - 343, 129 S.Ct. 855, 860 - 862, 172 L.Ed.2d 706 (2009). In determining whether a

prosecutor is entitled to absolute immunity, the Court must apply the “functional approach”

examining the nature of the function performed. Id., 555 U.S. at 342, 129 S.Ct. at 861. It is well

established that prosecutors are absolutely immune “for their conduct in initiating a prosecution

and in presenting the State’s case, insofar as that conduct is ‘intimately associated with the judicial

phase of the criminal process.’ ” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1939, 114

L.Ed.2d 547 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-431, 96 S.Ct. 984, 995, 47

L.Ed.2d 128) (1976). Further, absolute immunity extends to “actions preliminary to the initiation

of a prosecution and actions apart from the courtroom.” Buckley v. Fitzsimmons, 509 U.S. 259,

272, 113 S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993) (quoting Imbler, 424 U.S. at 431, 96 S.Ct. at

995 - 996)). A prosecutor acts as an advocate or “officer of the court” when performing tasks, such

as (1) initiating a judicial proceeding, (2) presenting evidence in support of a search warrant

application, (3) conducting a criminal trial, bond hearing, grand jury proceeding or pre-trial

hearing, (4) engaging in “an out-of-court effort to control the presentation of [a] witness’

testimony,” and (5) making a “professional evaluation of the evidence assembled by the police and

appropriate preparation for its presentation at trial or before the grand jury after a decision to seek

an indictment has been made.” Buckley, 509 U.S. at 272, 113 S.Ct. at 2615 (quoting Imbler, 424

U.S. at 431, 96 S.Ct. at 995 - 996); Van de Kamp, 555 U.S. at 434, 129 S.Ct. at 861; Dababnah v.

Keller-Burnside, 208 F.3d 467, 471 - 472 (4th Cir. 2000) (stating that “numerous courts have found

prosecutors absolutely immune when undertaking [extradition proceedings].”)

Furthermore, a prosecutor is entitled to absolute immunity even if he or she “acted with an

improper state of mind or improper motive.” Shmueli v. City of New York, 424 F.3d 231, 237 (2nd

Cir. 2005); also see Smith v. McCarthy, 349 Fed.Appx. 851, 859 (4th Cir. 2009), cert. denied, 562

U.S. 829, 131 S.Ct. 81, 178 L.Ed.2d 26 (2010); Brown v. Daniel, 230 F.3d 1351 (4th Cir. 2000)

(“[T]o the extent [plaintiff] alleges that the prosecutors engaged in misconduct during the

prosecution of this case . . ., the prosecutors are absolutely immune.”). Thus, prosecutors are

entitled to absolute immunity for withholding materially exculpatory evidence, and knowingly

presenting perjured testimony or false or misleading evidence to the Court or grand jury. Burns,

500 U.S. at 490-92, 111 S.Ct., at 1941-42 (“A state prosecuting attorney is absolutely immune

from liability for damages under § 1983 for participating in a probable-cause hearing . . ..”); Imbler,

424 U.S. at 422, 96 S.Ct. 984 at 991 (citing Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed.

395 (1927)) (finding prosecutor entitled to absolute immunity for allegations that he “maliciously

and without probable cause procured plaintiff’s grand jury indictment by the willful introduction

of false and misleading evidence.”); also see Brown v. Daniel, 230 F.3d at 1352; Lyles v. Sparks,

79 F.3d 372, 377 (4th Cir. 1996); Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994), cert. denied,

513 U.S. 1150, 115 S.Ct. 1101, 130 L.Ed2d 1068 (1995). Although prosecutors may be entitled to

absolute immunity, prosecutors are subject to criminal and professional sanctions for prosecutorial

abuses. Imbler, 424 U.S. at 429, 96 S.Ct. at 994; Malley v. Briggs, 475 U.S. 335, 343, n. 5, 106

S.Ct. 1092, 89 L.Ed.2d 271 (1986). It is well recognized that “[a]bsolute prosecutorial immunity

‘is not grounded in any special esteem for those who perform these functions, and certainly not

from a desire to shield abuses of office, but because any lesser degree of immunity could impair

the judicial process itself.’ ” Dababnah, 208 F.3d at 471 (quoting Kalina v. Fletcher, 522 U.S. 118,

127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)). The Imbler Court determined the importance of

protecting the integrity of the prosecutor’s office and the judicial system outweighs the desire to

afford civil redress to a wronged defendant. Imbler, 424 U.S. at 427 - 429, 96 S.Ct. at 993 - 994.

A prosecutor, however, is not entitled to absolute immunity for “investigatory functions

that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial

proceedings.” Buckley, 509 U.S. at 273, 113 S.Ct. at 2615 (citing Burns, 500 U.S. at 491, 11 S.Ct.

at 1941-42). Thus, a prosecutor is only entitled to qualified immunity for administrative actions or

investigative functions not related to trial preparation, such as holding a press conference, engaging

in investigative activity prior to the establishment of probable cause to arrest, providing police

officers with legal advice during the investigative phase, or acting as a complaining witness in

support of a warrant application. Id.; also see Van de Kamp, 555 U.S. at 342 - 343, 129 S.Ct. at

861. The Supreme Court has explained as follows:

There is a difference between the advocate’s role in evaluating evidence and

interviewing witnesses as he prepares for trial, on the one hand, and the detective’s

role in searching for clues and corroboration that might give him probable cause to

recommend that a suspect be arrested, on the other hand. When a prosecutor

performs the investigative functions normally performed by a detective or police

officer, it is “neither appropriate nor justifiable that, for the same act, immunity

should protect the one and not the other. Thus, if a prosecutor plans and executes a

raid on a suspected weapons cache, he “has no greater claim to complete immunity

than activities of police officers allegedly acting under his direction.”

Buckley, 509 U.S. at 273, 113 S.Ct. at 2616 (internal citations omitted). Thus, a prosecutor does

not have absolute immunity for a claim that he or she fabricated evidence during the preliminary

investigation of an unsolved crime. Id., 509 U.S. at 275, 113 S.Ct. at 2616 - 2617.

In the instant case, the Plaintiff only complains the Defendant violated his constitutional

rights due to his involvement in the prosecution of Plaintiff’s criminal case. To that extent, the

Defendant would be entitled to absolute prosecutorial immunity from Plaintiff’s Section 1983

claims concerning any decision he made concerning the prosecution of Plaintiff’s State charges

pursuant to Imbler. Even assuming arguendo that the Defendant acted outside of his prosecutorial

functions, he would be entitled to qualified immunity. In sum, the Plaintiff’s claims against the

Defendant simply do not rise to the level of any constitutional violation, because he fails to allege

any factual support for his claims that would survive scrutiny under the Iqbal and Twombly

heightened pleading standard, supra. Thus, the Plaintiff’s claim against the Defendant should be

dismissed.

PROPOSAL AND RECOMMENDATION

The undersigned therefore respectfully PROPOSES that the District Court confirm and

accept the foregoing findings and RECOMMENDS that the District Court DENY the Plaintiff’s

Application to Proceed Without Prepayment of Fees and Costs (ECF No. 1), DISMISS the

Plaintiff’s Complaint (ECF No. 2) with prejudice and remove this matter from the Court’s docket.

The parties are notified that this Proposed Findings and Recommendation is hereby

FILED, and a copy will be submitted to the Honorable Frank W. Volk, 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 parties shall have fourteen days (filing of

objections) and then three days (mailing/service) 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 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, 1366 (4 Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155 106

S.Ct. 466, 475, 88 L.E.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.E.2d 933

(1986); Wright v. Collins, 766 F.2d 841 846 (4" Cir. 1985); United States v. Schronce, 727 F.2d

91, 94 (4" Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.E.2d 352 (1984). Copies of

such objections shall be served on opposing parties, District Judge Volk, and this Magistrate Judge.

The Clerk of this Court is directed to file this Proposed Findings and Recommendation and

to send a copy of same to the pro se Plaintiff.

ENTER: October 4, 2024.

eB ‘ff Omar J. Aboulhosn

& mrs ss United States Magistrate Judge

12