VanWagner v. Corporal Walker et al
ORDER DISMISSING CASE and striking from the active docket. Signed by Chief Judge John Preston Bailey on 1/16/2013. Copy sent certified mail, return receipt to pro se Plaintiff. (tlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GEORGE H. VAN WAGNER, III,
Civil Action No. 3:12-CV-142
CORPORAL JOSEPH WALKER,
West Virginia State Trooper, and
Prosecuting Attorney for Berkeley County,
ORDER DISMISSING CASE
This action was instituted by the plaintiff through a letter addressed to the
undersigned and received on December 4, 2012 (Doc. 1). This Court determined to deem
the letter to be a complaint and opened a civil action. The letter requests this Court to
intervene in the “continuing violation of my constitutional rights by Cpl. Walker of the W.Va.
State Police and the Berkely (sic) Co. Prosecuting Attorneys Office “‘Pamela Gaines (sic)
Currently pending in the action are six motions: (1) a letter requesting that the Court
intervene in pending state prosecutions and requesting an evidentiary hearing (Doc. 5); (2)
an application to proceed in forma pauperis (Doc. 6); (3) a motion to appoint counsel (Doc.
7); (4) a “Notice to be Heard,” again asking this Court to intervene in the state prosecutions
(Doc. 10); (5) a motion for “leave to file,” concerning his attempts to privately retain counsel
(Doc. 11); and (6) a “motion for extend of time,” seeking additional time to correct his
deficient application for in forma pauperis status.
Mr. Van Wagner is no stranger to this Court, having filed five bankruptcy appeals.
Van Wagner v. Fluharty, 3:10-CV-44; Van Wagner v. Trumble, 3:10-CV-45; Van Wagner
v. Branch Banking & Trust Co., 3:10-CV-54; Van Wagner v. Branch Banking & Trust
Co., 3:11-CV-6; and Van Wagner v. Branch Banking and Trust Co., 3:11-CV-75. In
addition, Mr. Van Wagner has filed two cases which were dismissed for lack of diversity
jurisdiction. Van Wagner v. Residential Funding Company, LLC, 3:11-CV-66 and Van
Wagner v. Crites, 3:11-CV-97.
In yet another case, Van Wagner v. McGraw, 3:11-CV-58, the plaintiff sought an
emergency writ of prohibition requiring the defendants to abandon a state criminal
prosecution. This Court dismissed that action under Younger v. Harris, 401 U.S. 37
(1971). The United States Court of Appeals for the Fourth Circuit affirmed that dismissal.
Van Wagner v. McGraw, 459 Fed.Appx. 290 (4th Cir. 2011).
The plaintiff has been charged with fraudulent schemes and felony embezzlement
in various cases in the Berkeley County, West Virginia, Circuit Court (Case Numbers 11-B99, 11-F-362, 11-F-705, and 12-F-158). The four fraudulent scheme charges in violation
of W. Va. Code § 61-3-24(d) and one felony embezzlement charge in violation of W. Va.
Code § 61-3-20 have been consolidated into Case Number 12-F-158.
As the Fourth Circuit once explained, “questions of subject-matter jurisdiction may
be raised at any point during the proceedings and may (or, more precisely, must) be raised
sua sponte by the court.” Brickwood Contrs., Inc. v. Datanet Eng’g, Inc., 369 F.3d 385,
390 (4th Cir. 2004); see also Wickline v. Dutch Run-Mays Draft, LLC, 606 F.Supp.2d
633, 636 (S.D. W.Va. 2009) (same); Fed. R. Civ. P. 12(h)(3). Because of the nature of the
plaintiff’s request for relief, this Court now raises sua sponte the question of subject-matter
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court of the United States
articulated an abstention doctrine to prevent federal courts from unwarranted involvement
in pending state court criminal prosecutions, notwithstanding allegations of federal
constitutional violations. The Fourth Circuit has recognized that Younger abstention
should not be construed lightly:
Absent a few extraordinary exceptions, Younger mandates that a federal
court abstain from exercising jurisdiction interfering in a state criminal
proceeding if (1) there is an ongoing state judicial proceeding brought prior
to substantial progress in the federal proceeding; that (2) implicates
important, substantial, or vital state interests; and (3) provides adequate
opportunity to raise constitutional challenges.
Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006) (citing Middlesex County Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)) (footnote omitted).
The Fourth Circuit then elaborated on those “few extraordinary exceptions,” as
The Supreme Court has recognized that a federal court may
disregard Younger’s mandate only where (1) “there is a
showing of bad faith or harassment by state official 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
Nivens, 444 F.3d at 241 (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
Upon careful consideration of the above, the Court finds that the relief that the
plaintiff requests in this case is barred by Younger. In other words, the elements of the
doctrine are satisfied, and the plaintiff has failed to persuade the Court that one of the
With regard to the elements, the Court first notes that there is an ongoing state
criminal proceeding. Next, there can be no question that this case implicates a vital interest
for the State of West Virginia. The State has the duty to protect its residents from
fraudulent schemes. Lastly, the plaintiff has a mechanism in the state proceedings to raise
As for the exceptions, this Court is unpersuaded that any are applicable in the
instant case. While the plaintiff has alleged that his constitutional rights have been violated
by the investigating officer and the prosecuting attorney in that they contacted persons
serving as his attorneys in fact and informing them that they were in violation of law in
collecting rents on properties that were part of a bankruptcy estate and are interfering with
his mail at the Eastern Regional Jail. This Court finds these allegations to be insufficient
to cause this Court to ignore Younger. Such allegations may be addressed by the Circuit
Court of Berkeley County, West Virginia. In addition, this Court notes that Mr. Van Wagner
is also under indictment in this Court. See United States v. Van Wagner, 3:12-CR-34GMG. This would also permit the plaintiff’s federal counsel to address any constitutional
For the reasons stated above, this Court finds that the relief sought in this case is
barred by Younger, thereby depriving this Court of jurisdiction. Accordingly, this Court
hereby DISMISSES this action and ORDERS it STRICKEN from the active docket of this
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein
and to mail a copy to the pro se plaintiff.
DATED: January 16, 2013.