Brown v. Yost et al
ORDER ADOPTING 43 REPORT AND RECOMMENDATION. The Defendant Mark Hayes Motion to Dismiss [Doc. 18 and Defendant Fisher and Yosts Motion to Dismiss [Doc. 21 are GRANTED. Further, Plaintiffs Objections [Doc. 45 are OVERRULED. Accordingly, Plain tiffs Complaint [Doc. 1 , is hereby DISMISSED WITH PREJUDICE. As such, this Court DIRECTS the Clerk to enter judgment in favor of defendants and STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 11/27/17. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 11/27/2017: # 1 Certified Mail Return Receipt) (njz).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES ARNOLD BROWN,
Civil Action No. 2:17-CV-2
DOUGLAS YOST, Detective; BRICE
FISHER, Task Force Officer; and
MARK HAYES, Magistrate Judge,
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge Michael John Aloi.
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi for
submission of a proposed report and recommendation (“R&R”), filed on October 30, 2017
[Doc. 43]. In that filing, the magistrate judge recommended that this Court dismiss the
plaintiff’s § 1983 Complaint with prejudice. As set forth below, this Court agrees with the
magistrate judge and adopts his R&R over plaintiff’s objections.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. The docket reflects service was accepted on November
6, 2017 [Doc. 44]. Plaintiff timely filed his objections November 20, 2017 [Doc. 45].
Accordingly, this Court will conduct a de novo review of the portions of the magistrate
judge’s R&R to which the plaintiff objects. See, e.g., Austin v. Cuyler, 499 F.Supp. 1116,
1116 (E.D. Pa. 1980). The remainder of the R&R will be reviewed for clear error.
On October 19, 2016, the Three Rivers Drug Task Force was assisting the Fairmont
West Virginia Police Department on a search warrant related to a sexual assault at 103
Weatherwax Street, Fairmont, West Virginia [Doc. 1 at 7]. The homeowner of that
residence, Charles “Bubba” Echols (“Echols”), was the suspect in the sexual assault case;
Echols rented a room in the residence to Plaintiff. After officers knocked, Echols let the
officers in and he was cuffed [Doc. 34-2 at 1]. Plaintiff was detained near the back door of
the residence and was restrained by a non-defendant officer while the search warrant was
executed. The officers discovered $620 in United State currency on Plaintiff’s person [Doc.
2 at 1]. Inside Plaintiff’s room in a black shopping bag, officers found 110 sealed 2g packs
of “Wonderland” synthetic marijuana. Id. Officers also discovered $173 in United States
currency in plaintiff’s room, along with a loaded 12 gauge Stevens pump shotgun, several
empty “Wonderland” synthetic marijuana packs, along with several empty “F’ed Up” brand
synthetic marijuana packs. Plaintiff’s roommate/landlord Echols advised the officers that
plaintiff was selling synthetic marijuana from the back bedroom in the house, and that many
of the individuals who purchased the drug would “trade tools, ammunition and other items”
in exchange for it [Doc. 34-2 at 2]. Plaintiff was arrested for possession with intent to
deliver and transported to the Fairmont Police Department (“FPD”). He was later taken to
Marion County Magistrate Judge Mark Hayes for arraignment. Bond was set at $250,000,
which plaintiff was unable to pay. He was subsequently transported to the North Central
Regional Jail by defendants Yost and Fisher.
Upon a review of the plaintiff’s Complaint and Objections, this Court agrees with the
magistrate judge that the plaintiff is not entitled to the relief he seeks. In his Objections
[Doc. 45], the plaintiff asserts that in his claim against defendant Hayes for official
misconduct, the plaintiff was referring to his handling under the defendant’s supervision.
He states that he expressed to defendant Hayes the alleged mistreatment by defendants
Yost and Fisher yet was ignored and reprimanded by Hayes. He thus asserts that had
Hayes listened to his concerns, he would not have been released back into Yost and
Fisher’s custody and may have avoided the hypertension episode. As discussed in the
next paragraph, defendant Hayes is entitled to judicial immunity.
Plaintiff objects to the magistrate judge’s finding that Hayes is entitled to judicial
immunity. He asserts that “most of the underlined cases they refer to a U.S. Magistrate
who is trained in law with a law degree as opposed to a county magistrate who is a (sic)
elected official . . ..” (Id. at 2). Plaintiff misstates the law. In West Virginia, “judges are
absolutely immune from civil liability for damages for actions taken in the exercise of their
judicial duties.” Carey v. Dostert, 185 W.Va. 247, 251, 406 S.E.2d 678, 682 (1991)(citing
Stump v. Sparkman, 435 U.S. 349, 355-56 (1978)). Importantly, “[j]udicial immunity
applies to both superior and inferior courts.” Pritchard v. Crouser, 175 W.Va. 310, 313,
332 S.E.2d 611, 614 (1985)(holding that judicial immunity applies to a magistrate court
judge despite the fact that the magistrate court is not a court of record). Here, the plaintiff’s
claims are clearly based on actions magistrate Hayes took while exercising his judicial
duties; accordingly, he is immune from damages as a result of those actions and the
plaintiff’s claims against him are hereby DISMISSED WITH PREJUDICE.
Plaintiff next objects to the recommendation that Younger abstention apply to the
claims against defendants Yost and Fisher. See Younger v. Harris, 401 U.S. 37 (1971).
Simply put, the Complaint should be dismissed pursuant to the federal court abstention
doctrine because plaintiff seeks equitable relief from an ongoing state court criminal
Next, plaintiff objects to the magistrate judge’s findings pertaining to his claim of
misconduct by Yost and Fisher. Plaintiff clarifies that his claim of misconduct by Yost
“pertain[ed] to solely defendant Yost’s treatment of the plaintiff on October 19, 2016 . . .
The humiliation of having the windows rolled down exposes the plaintiff to motorist (sic) and
his shouts of ‘look what we got’ his several remarks of racial innuendos and the personal
call to the county magistrate before the plaintiff was to be arraigned by this same person.”
[Doc. 45 at 3]. This was thoroughly discussed in the magistrate judge’s R&R.
In the R&R, the magistrate judge explained that excessive force claims by a pretrial
detainee or arrestee are governed by the Due Process Clause of the Fourteenth
Amendment. See Young v. Prince George’s County, Maryland, 355 F.3d 751, 758 (4th
Cir. 2004). Therefore, to prevail on an excessive force claim under the Due Process
Clause, a plaintiff must show that the officer “inflicted unnecessary and wanton pain and
suffering.” Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir. 1998)(citing Whitley v. Albers,
475 U.S. 312, 320 (1991)).
As was explained in the R&R, “[e]ven viewing these facts in a light most favorable
to plaintiff, it is apparent that on October 19, 2016, Yost and Fisher did not inflict any
unnecessary or wanton pain and suffering upon plaintiff.” [Doc. 43 at 18]. Indeed, the
plaintiff does not allege that these defendants applied any force whatsoever. Rather, he
claims he was subject to humiliation by alleged racial innuendo and being driven with the
window down, being seen under arrest. Accepting these allegations as true, mere verbal
harassment simply does not give rise to a constitutional violation. See Wagner v.
Wheeler, 13 F.3d 86, 92-93 (4th Cir. 1993)(verbal abuse does not amount to a
constitutional violation); see also Eury v. Angelone, 2001 WL 24042606, at *4 (E.D. Va.
June 11, 2001)(alleged derogatory racial remarks, even if true, are not constitutional
violations). Further, de minimis injury can foreclose a Fourteenth Amendment claim.
Orem, 523 F.3d at 447. Accordingly, this Court finds the plaintiff has failed to state a claim
upon which relief can be granted. This Objection is OVERRULED.
Next, plaintiff states that he agrees with the magistrate judge’s finding that the
Fourteenth Amendment applies to the plaintiff’s claim of excessive force, but plaintiff
objects to his finding that the hypertension episode can be attributed to the plaintiff’s
alleged anger and agitation during processing. This objection is irrelevant. As the R&R
points out, the plaintiff alleges no injury at all, “beyond a transient episode of hypertension
. . ..” [Doc. 43 at 20]. This spike in blood pressure, absent any complications does not rise
to a deprivation of a constitutional right. This Objection is OVERRULED.
Upon careful review of the record, it is the opinion of this Court that the magistrate
judge’s Report and Recommendation [Doc. 43] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated therein. The Defendant Mark Hayes’ Motion
to Dismiss [Doc. 18] and Defendant Fisher and Yost’s Motion to Dismiss [Doc. 21] are
GRANTED. Further, Plaintiff’s Objections [Doc. 45] are OVERRULED. Accordingly,
Plaintiff’s Complaint [Doc. 1], is hereby DISMISSED WITH PREJUDICE. As such, this
Court DIRECTS the Clerk to enter judgment in favor of defendants and STRIKE this case
from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to counsel of record and to mail
a copy to the pro se plaintiff.
DATED: November 27, 2017.
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