Givens v. Ogden Newspapers, Inc et al

Filing 41

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS : Granting 9 Motion to Dismiss for Lack of Jurisdiction; Granting 15 Motion to Dismiss; Denying as Moot 23 Motion to Dismiss; Denying as Moot 25 Motion for Leave to File; Denying as moot 26 Motion for Hearing; Denying as moot 32 Motion to Strike ; and Dismissing Without Prejudice 1 Complaint; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by District Judge Irene M. Keeley on 12/21/12. (copy to Pltff. by cert. mail)(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DENNIS A. GIVENS,
Plaintiff,
v.

//

CIVIL ACTION NO. 5:12cv62
(Judge Keeley)

OGDEN NEWSPAPERS, INC.,
ROBERT G. MCCOID, and
WTOV, INC.,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
Pending before the Court is the magistrate judge’s Report and
Recommendation (“R&R”) concerning the civil complaint filed by pro
se plaintiff Dennis A. Givens (“Givens”). For the reasons that
follow, the Court ADOPTS the R&R in its entirety.
I.
On April 30, 2012, Givens filed a pro se complaint claiming
various

civil

and

constitutional

injuries

resulting

from

the

defendants’ alleged defamation. Defendant WTOV, Inc. (“WTOV”) moved
to dismiss the complaint for lack of subject matter jurisdiction on
May 12, 2012. (Dkt. No. 9). On July 12, 2012, defendant Ogden
Newspapers, Inc. (“Ogden”) filed its own motion to dismiss in which

GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
it adopted the reasoning of WTOV’s motion. (Dkt. No. 15).1 Givens
then responded to WTOV’s motion on June 4, 2012. (Dkt. No. 11).
The Court referred the matter to Magistrate Judge James E.
Seibert on May 2, 2012. Pursuant to Title 28, United States Code
§§ 636(b)(1)(A) and 636(b)(1)(B) and L.R. Civ. P. 72.01(d)(6), the
magistrate judge granted Givens’ application to proceed in forma
pauperis and later issued a Roseboro notice to Givens regarding his
pro se filings.
In his R&R entered on November 20, 2012, the magistrate judge
recommended that this Court dismiss Givens’ complaint for lack of
subject matter jurisdiction because Givens had failed to establish
either

federal

question

or

diversity

jurisdiction.

The

R&R

specifically warned Givens that his failure to file timely, written
objections to the R&R identifying specific portions of the R&R to
which he objected, and also stating the basis for such objections,
would result in the waiver of any appellate rights he might
otherwise possess as to this issue.
The Court must conduct a de novo review of portions of the
magistrate judge’s report to which objections have been filed. 28
U.S.C. § 636(b)(1). However, it need not conduct a de novo review

1

Defendant Robert G. McCoid (“McCoid”) did not enter an appearance
prior to the issuance of the Report and Recommendation by the magistrate
judge on November 20, 2012. Then, on November 26, 2012, McCoid filed a
motion to dismiss on the same grounds argued by WTOV and Ogden.

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GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
when a party makes only “general and conclusory objections that do
not direct the court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687
F.2d

44,

47

(4th

Cir.

1982).

In

the

absence

of

a

specific

objection, the Court will only review the magistrate judge’s
conclusions for clear error. Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). A failure to file
specific objections waives appellate review of both factual and
legal questions. See United States v. Schronce, 727 F.2d 91, 94 &
n.4 (4th Cir. 1984); see also Wright v. Collins, 766 F.2d 841, 845
(4th Cir. 1985).
Although

Givens

filed

timely

objections

to

the

R&R

on

December 3, 2012, (dkt. no. 27), most did not address specific
portions of the R&R, complaining only that the R&R was “premature
and fails to adequately determine all the facts and the merits an
ambiguity of Plaintiff’s civil action.”(Dkt. No. 27 at 2). At
bottom, Givens’ objection merely elaborates on the motion to
dismiss standard and urges the Court to construe his pro se
pleading

liberally.

Givens

also

reproduced

portions

of

his

proposed, amended complaint. (Dkt. No. 25-1).
Only one objection specifically challenged the magistrate
judge’s application of an improper standard of review, citing

3

GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). On de novo review,
however, the Court concludes that this objection lacks merit. The
Supreme Court has disavowed the lenient pleading standard of Conley
on which Givens relies in favor of the more stringent “plausibility
standard” articulated in Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 561 (2007); Great Western Mining and Mineral Co. v. Fox
Rothschild, LLP, 615 F.3d 159, 176 (4th Cir. 2010). Therefore, in
order to survive a Rule 12(b)(6) motion to dismiss, a complaint
must contain sufficient allegations of fact “to state a claim for
relief that is plausible on its face.” Twombly, 550 U.S. at 547.
While Givens is proceeding pro se, he is not immune from Twombly’s
requirement

that

“a

pleading

contain

‘more

than

labels

and

conclusions.’” Giarratano v. Johnson, 521 F.3d 298, 304 n. 5 (4th
Cir. 2008) (citing Twombly, 550 U.S. at 555). Givens’ admonishment
that this Court can only dismiss his complaint if it finds he
cannot prove any set of facts that would entitle him to relief thus
is legally incorrect.2

2

The Court recognizes that the first Roseboro notice issued on
November 1, 2012 alluded to the Conley standard. (Dkt. No. 16). The
inclusion of the Conley standard in the Roseboro notice is harmless for
two reasons. First, as discussed infra, Givens’ complaint does not
properly allege a ground for this Court to exercise subject matter
jurisdiction over his claims under any standard; thus it fails to satisfy
the pleading standards of either Conley or Iqbal. Second, Givens
responded to WTOV’s motion to dismiss on June 4, 2012, nearly five months
before the magistrate judge issued the Roseboro notice. Givens,
therefore, never relied on the contents of the Roseboro notice in his

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GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
Moreover, whether Conley’s more lenient pleading standard
applies

is

irrelevant

to

the

outcome

in

this

case.

Givens’

complaint would still fail to allege a set of facts entitling him
to relief under Conley because it fails to establish that this
Court may exercise subject matter jurisdiction over his claims.
See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
1999); United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347
(4th Cir. 2009) (plaintiff must prove jurisdictional facts "by a
preponderance of the evidence").
Givens

claims

both

federal

question

and

diversity

jurisdiction. In his complaint, however, he alleges only a state
law claim of defamation that, on its face, does not support federal
question jurisdiction. See 28 U.S.C. § 1331 (“The district courts
shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”).
Diversity jurisdiction is also lacking. See 28 U.S.C. § 1332.
With few exceptions, diversity jurisdiction does not exist unless
each

defendant

is

a

citizen

of

a

different

state

from

each

plaintiff. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Here, Givens is a citizen of Ohio, and while he maintains that WTOV
is a West Virginia citizen, it is clear from the affidavit of

response to WTOV’s motion to dismiss.

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GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
WTOV’s general manager that WTOV’s nerve center is located in
Steubenville,

Ohio,

thus

rendering

it

an

Ohio

citizen

and

destroying complete diversity. (Dkt. No. 13-1.). See Hertz Corp. v.
Friend, 130 S. Ct. 1181, 1186 (2010). Givens’ lone exhibit – a
phonebook entry listing various phone numbers in Ohio and West
Virginia for WTOV, but only one address in Ohio – is insufficient
to controvert that affidavit.
Therefore, because both Givens and WTOV are citizens of Ohio,
this Court may not exercise diversity jurisdiction over Givens’
claims. Because federal question jurisdiction is lacking as well,
the Court does not have subject matter jurisdiction in this case
IV.
Givens’ objections to the R&R are not his final word. On
November 26, 2012, defendant Robert McCoid, who had not previously
noted an appearance, moved to dismiss Givens’ complaint. (dkt. no.
23). Following that, on November 30, 2012, Givens moved for leave
to amend his complaint to allege a claim under 42 U.S.C. § 1983,
and also seeking to add Scott R. Smith (“Smith”), the Prosecuting
Attorney for Ohio County, West Virginia, as a party.
V.
As he sought to amend within twenty-one days of the filling of
McCoid’s 12(b) motion, Givens is entitled to amend his complaint as

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GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
a matter of course. Fed. R. Civ. P. 15(a)(1)(B).3 Such amendment,
however, is futile here because Givens’ proposed amended complaint
fails to state a claim upon which relief may be granted. A court
has the authority to sua sponte dismiss an in forma pauperis action
that is frivolous, malicious, or fails to state a claim for which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B). Whether a
complaint states a claim upon which relief can be granted is
determined by the standard of review applicable to a motion to
dismiss under Fed. R. Civ. P. 12(b)(6). De'Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir.2003) (citing DeWalt v. Carter, 224 F.3d
607, 611–12 (7th Cir.2000)).
To state a claim under § 1983, a plaintiff must plausibly
allege that he was deprived of a right secured by the Constitution

3

The Court recognizes that, under Rule 15(a)(1)(B), Givens may only
amend his complaint as a matter of right with regard to McCoid. See 6
Fed. Prac. & Proc. Civ. § 1481 (3d ed.): “[I]f only some defendants file
responsive pleadings, plaintiff still should be governed by the 21-day
amendment period in Rule 15(a)(1)(A) for pleading amendments regarding
the nonresponding defendants.”.
As to the other defendants, Givens may only amend his complaint with
leave of the Court. Fed. R. Civ. P. 15(a)(2). While a court should freely
grant a petitioner leave to amend a complaint, Fed. R. Civ. P. 15(a)(2),
a court also has discretion to deny such leave when amendment would be
futile, "that is, if the proposed amended complaint fails to satisfy the
requirements of the federal rules." U.S. ex rel. Wilson v. Kellogg Brown
& Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). As explained infra,
Givens’ amended complaint fails to satisfy Fed. Rule of Civ. Pro. 12(b)
(6). Thus, had McCoid not filed his motion to dismiss, the Court would
have denied Givens’ leave to file his amended complaint on the same
grounds.

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GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
or federal law. He must further allege that the deprivation
occurred under color of state law. Lytle v. Doyle, 326 F.3d 463,
471 (4th Cir. 2003) (citing American Mfrs. Mut. Ins. Co. V.
Sullivan, 526 U.S. 40, 49-50 (1999).
Mere private conduct does not satisfy the second prong of §
1983. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40. 50
(1999). While Givens’ proposed amended complaint names Smith,
presumably a state actor, it fails to allege any facts that would
permit the Court to infer Smith engaged in any misconduct at all
under color of state law. See Atherton v. District of Columbia Off.
of Mayor, 567 F.3d 672, 681–82 (D.C.Cir. 2009) ("A pro se complaint
... must be held to less stringent standards than formal pleadings
drafted by lawyers. But even a pro se complainant must plead
factual matter that permits the court to infer more than the mere
possibility of misconduct.” (internal citations and quotations
omitted)).
The proposed amended complaint states only that Smith “burdens
the right to petition, speech, and to due process of law,” that he
“restricts his actions for the state only to limited categories of
persons based on what he mistakenly believes,” and that he had a
“symbiotic relationship” with the remaining defendants, all of whom

8

GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
are

private

parties.4

No

facts

support

these

conclusory

allegations.5
Absent plausible allegations of misconduct by a state actor
under color of state law, Givens’ proposed amended complaint fails
to state a claim under § 1983 because the remaining defendants are
private parties, not state actors. It therefore does not satisfy

4

The amended complaint states:
On or about September 22, 2011, Defendant published a
statement referring to the Plaintiff defaming Plaintiff,
referencing Defendant McCoid and Plaintiff by reputation.
On or about September 21, 2011, Defendant WTOV broadcast video
statement(s) referring to the Plaintiff defaming Plaintiff and
injuring Plaintiff’s reputation, referencing Defendant McCoid.
Defendant Ogden, McCoid, WTOV published the defamatory
statement with actual knowledge that it was false, or with
tone of reckless disregard as to its truth, falsity,
authenticity, or negligently.

Dkt. No. 25-1 at 5,6. The complaint does not allege any action taken by
Smith, or any other state actor.
5
The Court also notes that prosecutors are absolutely immune from
suit under 42 U.S.C. § 1983 for the initiation and pursuit of criminal
prosecution, Imbler v. Pachtman, 424 U.S. 409, 427 (1976), and enjoy
qualified “good faith” immunity when acting in an investigative or
administrative capacity. Erlich v. Giuliani, 910 F.2d 1220, 1222 (4th
Cir. 1990). See also Rehberg v. Paulk, 132 S.Ct. 1497 (2012). As the
amended complaint does not allege how Smith participated in any alleged
deprivation of Givens’ constitutional rights, the Court cannot determine
whether Smith would be entitled to absolute or qualified prosecutorial
immunity.

9

GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
Federal

Rule

of

Civil

Procedure

12(b)(6)

and

is

subject

to

dismissal.6
CONCLUSION
For the reasons stated above, the Court:
1.

ADOPTS the Report and Recommendation in its entirety
(dkt. no. 21), dismissing without prejudice Givens’
complaint (dkt. no. 1);

2.

GRANTS WTOV’s Motion to Dismiss (dkt. no. 9);

3.

GRANTS Ogden’s Motion to Dismiss (dkt. no. 15); and

4.

DENIES AS MOOT McCoid’s Motion to Dismiss (dkt. no. 23);

5.

DENIES AS MOOT Givens’ Notice and Motion for Leave to
File Amended Complaint (dkt. no. 25);

7.

DENIES AS MOOT Givens’ Notice and Motion and Memorandum
in Support for Hearing (dkt. no. 26); and

8.

DENIES AS MOOT Givens’ Notice and Motion to Strike
Defendant McCoid’s Motion to Dismiss (dkt. no. 32).

6

The Court notes that on December 12, 2012, the magistrate judge
issued to Givens a Roseboro notice regarding McCoid’s motion to dismiss
(dkt. no. 23) that directed Givens to file his opposition to McCoid’s
motion within thirty days. Although he has not yet filed a response,
Givens’ response would be superfluous because McCoid’s motion to dismiss
raises no new ground for dismissal of Givens’ claims, and because the
Court concludes, sua sponte, that Givens’ amended complaint fails to
state a claim for which relief can be granted.

10

GIVENS V. OGDEN ET AL.

5:12CV62

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
If the petitioner should desire to appeal the decision of this
Court, written notice of appeal must be received by the Clerk of
this Court within thirty (30) days from the date of the entry of
the Judgment Order, pursuant to Rule 4 of the Federal Rules of
Appellate Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: December 21, 2012.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

11