Givens v. Smith et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE AND IMPOSING FILING RESTRICTIONS: granting 26 Motion to Dismiss; granting 29 Motion to Impose Filing Restrictions; granting 31 Motion for the Imposition of Filing Restrictions; affirming and adopting Report and Recommendations 71 and 96 ; denying 8 Motion for Reconsideration; denying 9 Motion to Disqualify Judge; denying as moot 99 Motion for documentation of defendant "c osts"; granting 18 Motion to Dismiss; granting 20 Motion to Dismiss; 22 Motion to Dismiss is GRANTED IN PART as to defendants J.E. Dean and S.A. Zimmerman, and DENIED IN PART as to defendant J.C. Weaver.; granting 24 Motion to Dismis s; Accordingly, the plaintiff is hereby ENJOINED from filing any further civil actions in this Court which are related to any partys involvement in his prior lawsuits WITHOUT OBTAINING LEAVE OF COURT. Signed by Senior Judge Frederick P. Stamp, Jr on 7/1/13. (copy to counsel of record via CM/ECF and to pro se plaintiff by certified mail, rr)(rjs) (Additional attachment(s) added on 7/1/2013: # 1 Certified Mail Return Receipt) (rjs).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:12CV145
SCOTT R. SMITH, KEITH C. GAMBLE,
STEPHEN M. FOWLER, D. LUKE FURBEE,
OFFICER S.A. ZIMMERMAN,
OFFICER J.E. DEAN,
OFFICER J.C. WEAVER
a/k/a JACK C. WEAVER,
HONORABLE JAMES P. MAZZONE,
HONORABLE ARTHUR M. RECHT,
HONORABLE RONALD E. WILSON
and KENNETH W. BLAKE,
individually and collectively,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATIONS OF MAGISTRATE JUDGE
AND IMPOSING FILING RESTRICTIONS
On September 28, 2012, the pro se1 plaintiff initiated this
action in this Court by filing a civil rights complaint which
alleges that all of the named defendants have conspired to deprive
him of fair access to the courts.
The plaintiff’s complaint
alleges violations of the First and Fourteenth Amendments of the
United States Constitution and asserts causes of action under 42
U.S.C. §§ 1981, 1982, 1983, and 1985.
Pursuant to 28 U.S.C.
§ 1915(e) and 28 U.S.C. § 636, this Court then referred the
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1341 (9th ed. 2009).
plaintiff’s complaint to the Honorable James E. Seibert, United
States Magistrate Judge, for report and recommendation.
plaintiff then filed a number of motions, including a motion for
disqualify both Magistrate Judge Seibert and the undersigned judge
plaintiff’s motion to disqualify him from hearing the case, and
granted the plaintiff’s motion to proceed without prepayment of
Thereafter, the defendants all filed motions to dismiss,2 and
defendants Kenneth W. Blake, Stephen M. Fowler, Keith C. Gamble,
James P. Mazzone, Arthur M. Recht, and Ronald E. Wilson filed
motions for the imposition of filing restrictions against the
plaintiff (ECF Nos. 29 and 31).3
Following the full briefing of
all of the defendants’ motions, Magistrate Judge Seibert issued a
report and recommendation recommending that this Court dismiss the
plaintiff’s complaint as to all defendants except defendant Officer
He informed the parties of their right to file
objections to his report within fourteen days of receiving a copy
Defendants Blake, Fowler, and Gamble filed a joint motion to
dismiss (ECF No. 18). Defendants Mazzone, Recht and Wilson also
filed a joint motion to dismiss (ECF No. 20), and defendants Dean,
Weaver, and Zimmerman filed a joint motion to dismiss (ECF No. 22).
Defendants Scott R. Smith and D. Luke Furbee each filed individual
motions to dismiss (ECF Nos. 24 and 26).
All defendants have now joined in these motions.
thereof, and the plaintiff filed timely objections.
A number of
defendants also filed responses to the plaintiff’s objections.
After issuing his report and recommendation on the merits of
the plaintiff’s claims in this case, the magistrate judge held a
motion hearing regarding the pending motions to impose filing
restrictions at which plaintiff and counsel for all defendants were
present and given the opportunity to present their positions on the
motions to impose filing restrictions.
Thereafter, the magistrate
judge entered a report and recommendation recommending that this
Court grant the motions to impose filing restrictions on this
The plaintiff also filed objections to this report and
recommendation, as well as a motion asking this Court hold a
hearing to require defendant Gamble to provide documentation of his
costs related to the various civil actions filed by the plaintiff
and related plaintiffs4 in this and other courts.
defendants filed responses to the plaintiff’s objections to the
report and recommendation relating to their motions to impose
plaintiff’s motion requesting an accounting of his costs.
All pending motions, as well as the magistrate judge’s two
reports, are now fully briefed and ripe for disposition by this
The entirety of the situation regarding this plaintiff,
related plaintiffs, and a number of the defendants in this case and
related cases is set forth in detail below and in the magistrate
judge’s report and recommendations in this case (ECF Nos. 71 and
96), as well as below in the facts section of this memorandum
plaintiff’s motion requesting that this judge recuse himself from
this matter, denies the plaintiff’s motion for reconsideration of
magistrate judge’s report and recommendations in their entirety.
The plaintiff’s motion for a hearing is thus also denied as moot.
The plaintiff in this case has a long relationship with both
this Court and the courts of the State of West Virginia.
nephew, Greg Givens, and his nephew’s mother, Carol Pizzuto, have
filed no less than sixteen civil suits in the various courts
between 2008 and the present, and have also caused criminal
indictments to be entered against defendant Gamble.
All of this
activity appears to be traceable to an incident in 2008, when Greg
Givens was arrested and charged in the Circuit Court of Ohio County
with fraudulently cashing a Social Security check sent to his
grandfather after the proper recipient of that check had died.
Greg Givens allegedly cashed this check at Main Street Bank.
charges in this case were eventually dropped because it was
determined that Greg Givens was not competent to stand trial or to
assist in his own defense, and that it was unlikely that he would
ever become competent.5
The facts surrounding the criminal case are recounted at
length in Givens v. Main St. Bank, No. 5:08CV25, 2010 U.S. Dist.
LEXIS 74106 (N.D. W. Va. July 22, 2010)
Following the dismissal of the charges against Greg Givens,
he, the plaintiff, and Carol Pizzuto began filing analogous civil
suits against various people and entities surrounding the case and
the allegations therein in this Court, in the Circuit Court of Ohio
County, West Virginia, and in the Circuit Court of Monongalia
County, West Virginia.
Defendant Gamble represented Main Street
Bank and its involved employees in these original lawsuits and,
following the dismissal of the initial lawsuits on the merits, the
plaintiff, Greg Givens, and Carol Pizzuto began to sue defendant
Gamble and his law firm for actions relating to the dismissed
These civil cases were also dismissed on the merits, and
following these dismissals, the plaintiff, Greg Givens, and Carol
indictments were obtained against defendant Gamble for allegedly
forging a proposed order and forging a certified return receipt
postcard in one of the previously dismissed civil cases.6
The Ohio County Prosecutor’s Office appointed defendant Furbee
as special prosecutor for the citizen indictments obtained against
defendant Gamble, and the cases were assigned to defendant Judge
After an investigation into the allegations contained in
Prior to appearing before the grand jury and obtaining a
citizen indictment, the plaintiff and his family members asked
defendant Smith, prosecutor of Ohio County, to bring charges
against defendant Gamble.
Defendant Smith declined to do so,
prompting the Givens and Ms. Pizzuto to make a citizen appearance
before the grand jury, an action allowed by the State of West
Virginia. See State ex rel Miller v. Smith, 285 S.E.2d 500 (W. Va.
the indictments, defendant Furbee recommended dismissal of the
indictments, and Judge Mazzone issued an order following that
Following the dismissal of these indictments, two
of the defendant judges denied the plaintiff, Greg Givens, and
Carol Pizzuto’s requests to appear before the grand jury again. As
a result of all of the above litigation in the Ohio County courts,
defendant Judge Recht entered an order granting filing restrictions
against the plaintiff, Greg Givens, and Carol Pizzuto in that
Greg Givens then filed suit in this Court against all
Gamble, including Robert G. McCoid, counsel for defendant Gamble in
the criminal actions brought against him by the Givens and Ms.
Pizzuto, and every news outlet that reported on the cases.
case was also dismissed on the merits, and Greg Givens’ appeal
analogous civil actions filed by Greg Givens and Carol Pizzuto.7
See Civil Action Nos. 5:12CV149 and 5:12CV155. Unfortunately, this
complaint, like all complaints and filings that have been presented
to this Court by the plaintiff, Greg Givens, and Carol Pizzuto, is
exceedingly difficult to follow and to identify the allegations set
This Court notes that the plaintiff, Greg Givens, and Carol
Pizzuto also filed another case in this Court following the filing
of this case. See Pizzuto v. Mazzone, Civil Action No. 5:13cv67.
This case was dismissed for lack of subject matter jurisdiction on
June 10, 2013 by Chief Judge John Preston Bailey. The appeal of
this dismissal also remains pending.
forth. However, after review of the report and recommendation, the
complaint, and the filings by all parties, it seems that the
plaintiff claims that his civil rights were denied by defendants in
their various roles connected to the citizen indictments obtained
against defendant Gamble, his later attempts to appear before the
Ohio County grand jury, and with regard to the many civil suits
filed by the Givens and Ms. Pizzuto over the past five years.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
The plaintiff has filed objections and this Court
will review the portions of the magistrate judge’s report and
recommendations with which these objections take issue de novo.
All portions of the report and recommendations to which the
plaintiff has not objected are reviewed for clear error.
Plaintiff’s motion for recusal and for reconsideration of
order of reference
Prior to addressing the magistrate judge’s reports, this Court
undersigned judge recuse himself from hearing this case, and the
plaintiff’s motion for reconsideration of this Court’s order of
reference which referred this case to the magistrate judge for
review and report and recommendation.
Motion for disqualification
Disqualification of a judge from presiding over a particular
case is governed by 28 U.S.C. § 455.
Title 28, United States Code,
Section 455 requires that all federal judges recuse themselves from
circumstances, would expect that the judge would have actual
knowledge of his interest or bias in the case.”
Sao Paulo the Fed.
Rep. of Braz. v. Am. Tobacco Co, 535 U.S. 229, 232-33 (2002)
(emphasis in original).
In his motion for disqualification, the
plaintiff argues that the undersigned judge must recuse himself
from this case based upon a previous recusal in a case filed by
Greg Givens, Givens v. Nutting, et al., Civil Action No. 5:12CV64.
This Court acknowledges the undersigned judge’s previous recusal in
Civil Action No. 5:12CV64.
However, this recusal does not require
the undersigned judge to recuse himself from this case. The recusal
in that previous case resulted from the inclusion of certain
defendants in that case which are not included in this case.
fact, this Court notes that none of the defendants in that case are
plaintiff’s argument for recusal to be unpersuasive, and finding no
other basis for recusal of the undersigned judge, the plaintiff’s
motion for disqualification is denied.
Motion for reconsideration of order of reference
This Court referred this civil action to Magistrate Judge
Seibert for initial review and report and recommendation pursuant
to 28 U.S.C. § 1915(e), which requires that this Court dismiss all
civil actions filed without prepayment of a filing fee, if at any
prepayment “fails to state a claim on which relief may be granted.”
All of the defendants have also filed motions to dismiss.
evidentiary hearings, and to submit to a judge of the court
proposed findings of fact and recommendations for the disposition,
by a judge of the court, of any motion . . .”
Court has been granted full discretion to refer both the issue of
whether the plaintiff has brought a claim for which relief can be
granted, and the motions to impose filing restrictions to the
appropriate to have done so in this case, the plaintiff’s motion
for reconsideration of the order of reference is denied.
Motions to dismiss
The magistrate judge addressed each of the motions to dismiss
in turn, and this Court will do the same.
Motion to dismiss by Judges Mazzone, Recht, and Wilson
Again, as noted above, the plaintiff’s allegations against
these and all of the defendants to this case are exceedingly vague
and difficult to decipher.
However, it seems that the plaintiff
alleges that these defendants have acted independently, as well as
conspired, to deprive the plaintiff of his day in court with regard
to all previously filed litigation in this Court and in the courts
of the State of West Virginia.
From what this Court can gather
from the available record, these defendants were involved in the
Givens’ and Ms. Pizzuto’s previous litigation only in that they
oversaw the various cases filed by the plaintiff, Greg Givens, and
Judge Mazzone was the judge who dismissed the
citizen indictments against defendant Gamble, and Judges Recht and
Wilson both denied the Givens and Ms. Pizzuto another opportunity
to appear before a grand jury following that dismissal.
Recht and Wilson also dismissed the civil cases filed by the Givens
and Ms. Pizzuto in the Circuit Court of Ohio County.
was the judge who issued filing restrictions in Ohio County against
the plaintiff, Greg Givens and Carol Pizzuto.
The plaintiff names the judge defendants in Counts I through
V of his complaint.
Count I alleges that the judges conspired to
violate his First Amendment rights by conspiring “to deny Plaintiff
the right to report state injury and ongoing crime(s) being
committed against Plaintiff, and have proceeding [sic] to further
cover up such crime(s) in place of the truth, echoing the words”
[sic] “This case is going nowhere.”
The plaintiff also alleges
that the judges have violated their oath to uphold the law, and
that Judge Wilson has allowed “such a conspiracy to perpetuate
evidence fixed in a [sic] extrajudicial process beforehand . . .”
Count II also alleges that Judge Recht conspired with defendants
Gamble and Fowler to deny him “the right to petition secured by the
First Amendment . . . by introducing and issuing such decree
depriving Plaintiff of his fundamental rights to the Constitution
and petition by issuing such unconstitutional order or decree
against the Plaintiff denying due process and access to the
Count III asserts that the judges denied the plaintiff
his right to access the courts, as well as his right to due process
in denying him a second chance to appear before the grand jury.
Count IV simply alleges that the judges have denied the plaintiff
equal protection of the law, and Count V claims physical and
The magistrate judge found that the plaintiff failed to allege
a claim upon which relief can be granted against any of the judge
defendants on two bases.
First, the magistrate judge concluded
that the plaintiff’s allegations against each of these defendants
fail to meet the pleading requirements of Federal Rule of Civil
Procedure 8, even taking into account the deferential standard
afforded to pro se complaints. See Gordon v. Leeke, 574 F.2d 1147,
1153 (4th Cir. 1978). Second, the magistrate judge concluded that,
even if the plaintiff had alleged sufficient factual basis for his
claims to state a claim pursuant to Rule 8, the judge defendants
are entirely immune from suit for all actions taken from the bench.
Because all allegations against these defendants allege that the
judges have deprived the plaintiff of his constitutional rights
solely through judicial action, the judge defendants are thus
shielded from liability in this case.
In objection, the plaintiff argues that the magistrate judge’s
recommendation “is premature and fails to adequately determine all
the facts and the merits and ambiguity of Plaintiff’s civil
action.” The plaintiff also argues that the defendants will not be
prejudiced if this Court allows his claims to move forward.
Finally, the plaintiff’s objections refer to a petition for writ of
prohibition, which he has apparently filed with the United States
Court of Appeals for the Fourth Circuit, and which restates all of
the allegations which are contained in his complaint.
Rule 8 of the Federal Rules of Civil Procedure requires that
the plaintiff present “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
has been determined by the United States Supreme Court to require
that the plaintiff allege more than bare conclusions of liability,
but rather to include sufficient factual allegations to raise the
plaintiff’s allegations against the judge defendants are vague and
conclusory and fail to make any factual allegations which would
make his right to relief against these defendants plausible.
Further, as the magistrate judge explains, even if facts had been
alleged to support the plaintiff’s conclusory allegations, under no
set of facts could these defendants be found to be liable for their
actions related to the plaintiff’s previous litigation in the
Circuit Court of Ohio County.
It is well established that “judges of courts of superior or
general jurisdiction are not liable to civil actions for their
jurisdiction, and are alleged to have been done maliciously or
Bradley v. Fisher, 80 U.S. 335, 347 (1872).
defendants’ actions consist of dismissing the plaintiff’s previous
cases, denying him access to the grand jury, and imposing filing
restrictions against him.
The plaintiff’s complaint has presented
no allegations to suggest that any of the judge defendants here are
accused of depriving the plaintiff of his rights in any capacity
recommendation fail entirely to recognize the existence of judicial
immunity and its application to this case, and also fail to present
any argument which would suggest that this immunity would not apply
in this case.
Accordingly, this Court agrees with the magistrate
judge that the allegations against the judge defendants must be
dismissed in their entirety.
Motion to dismiss by Officers Dean, Weaver and Zimmerman
defendants’ motion to dismiss be granted, with the exception of
defendant Officer J.C. Weaver.
Similar to the allegations made
defendants Dean and Zimmerman are conclusory and set forth no facts
to support any possibility of liability. Against these defendants,
the plaintiff simply alleges that crimes have occurred under the
“watch and jurisdiction” of the officer defendants, and that the
officers denied the plaintiff equal protection of the law.
plaintiff’s objections to the magistrate judge’s recommendations as
to the claims against Officers Dean and Zimmerman are the same as
those to the recommendation that the judge defendants be dismissed.
This Court agrees with the magistrate judge that the plaintiff has
failed to allege a single fact to support liability against
Officers Dean and Zimmerman, but rather simply offers conclusory
Accordingly, all allegations against Officers Dean
and Zimmerman must be dismissed.
deference afforded to a pro se litigant, the magistrate judge found
that arguable factual allegations have been made against Officer
Weaver. Count III of the plaintiff’s complaint alleges that Officer
Weaver engaged in a conspiracy with defendant Gamble to leak
“internal investigative forensic reports supplied in confidence to
the West Virginia State police officer Weaver, to foster favor and
provide advantage to eventual criminally indicted to affect the
course of justice in favor of Defendant Keith C. Gamble . . .”
magistrate judge recommends that this claim be permitted to move
forward because, while vague, it does provide some factual basis
for the allegations against defendant Weaver in Count III.
Court agrees, and will thus affirms the magistrate judge on this
Motions to dismiss by Scott R. Smith and D. Luke Furbee
The magistrate judge next recommends that this Court grant the
motions to dismiss filed individually by defendants Smith and
Furbee. These defendants were both prosecuting attorneys who dealt
with the criminal allegations that the plaintiff and his family
members made against defendant Gamble.
Defendant Smith is a
prosecuting attorney in Ohio County, West Virginia, and defendant
Furbee is a prosecuting attorney in Tyler County who, as noted
above, was assigned as a special prosecuting attorney to the
citizen indictments obtained against defendant Gamble.
to these defendants, the magistrate judge found that no facts had
Further, the magistrate judge also found that these defendants’
motions to dismiss should be granted because, like the judge
defendants, these defendants enjoy immunity from suit based upon
acts committed in the course of their duties as prosecutors of the
See Imbler v. Pachtman, 424 U.S. 409 (1976); and Lyles v.
Sparks, 79 F.3d 372 (4th Cir. 1996).
Again, as with the allegations against the judge defendants,
the plaintiff fails to address the issue of immunity or to allege
any facts which would suggest that these defendants are accused of
committing wrongdoing in any capacity outside of their official
duties as prosecutors.
In addition to asserting no facts to
support liability in any capacity against these defendants, this
Court can find no evidence to show that the plaintiff has had any
dealings with these defendants outside of their handling of the
Accordingly, this Court will affirm the magistrate judge in this
defendants Smith and Furbee.
Motion to dismiss by defendants Fowler, Gamble and Blake
Finally, the magistrate judge recommends that this Court grant
the motion to dismiss filed by defendants Fowler, Gamble and Blake
in its entirety and dismiss all three of these defendants.
the exception of one allegation, which is addressed below, the
allegations against these defendants mirror the conclusory and
vague allegations against all other defendants noted above and, for
the reasons noted above, the magistrate judge finds that these
allegations must fail against these defendants as well for lack of
However, the plaintiff also alleges that these
defendants denied him access to the courts and violated his due
relationship’ with other named Defendant(s) to falsify records and
alter forensic evidence falsely prepared against Plaintiff to
pervert and obstruct the proper course of justice during the course
and events of Plaintiffs [sic] claims.”
The magistrate judge found that, while these allegations
plaintiff’s claimed legal bases for relief does not provide a cause
of action against these defendants for this alleged activity. This
The plaintiff asserts in his complaint that these
defendants have violated his Fourteenth Amendment rights to Due
Process and Equal Protection, as well as his First Amendment right
to free speech.
He claims that he seeks redress for these
violations pursuant to the Civil Rights Act, 42 U.S.C. §§ 1981-83
and § 1985.
This Court will discuss each of these claims in turn.
Title 42, United States Code, Sections 1981 and 1982 provide
a vehicle by which individuals may bring civil actions for racial
discrimination in their “rights to make and enforce contracts, to
sue, be parties, give evidence, and to full and equal benefit of
the laws and proceedings for the security of persons and property,”
and for racial discrimination with regard to property ownership and
As the magistrate judge points out, the plaintiff has
offered no allegations of racial discrimination against these or
any of the other defendants.
Accordingly, the plaintiff has not
alleged a violation of 42 U.S.C. §§ 1981 or 1982, and cannot rely
upon those statutory sections for relief.
Title 42, United States Code, Section 1983 likewise cannot
serve as a vehicle by which the plaintiff may obtain relief against
Section 1983 provides a private right of action
immunities” committed “under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .”
In order for a
constitutional violation to have been committed under color of
state law, it must have “such a ‘close nexus between the State and
the challenged action’ that seemingly private behavior ‘may be
fairly treated as that of the State itself.’”
Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)
(quoting Jackson v. Metro Edison Co., 419 U.S. 345, 351 (1974)).
unquestionably private citizens who were operating as such with
regard to all previous litigation involving the plaintiff, Greg
Givens and Carol Pizzuto.
The plaintiff alleges no facts which
could support any inference that these defendants ever acted in
such a way which could be considered closely connected to the
Accordingly, the plaintiff cannot sue these defendants
under 42 U.S.C. § 1983.
Finally, 42 U.S.C. § 1985, the Ku Klux Klan Act, similarly
does not provide a vehicle by which this plaintiff can hold these
defendants liable for the actions alleged. The relevant portion of
§ 1985 prohibits two or more people from conspiring to deprive
another “person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws, or for
the purpose of preventing or hindering the constituted authorities
of any State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the laws.”
While § 1985 allows individuals to file a civil suit for private
action in violation of the statute, in order for an action to
violate § 1985, “a plaintiff must show, inter alia, (1) that some
discriminatory animus lay behind the conspirators’ action, and (2)
that the conspiracy aimed at interfering with rights that are
protected against private, as well as official, encroachment.”
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993)
(internal citations omitted). Here, as the magistrate judge notes,
the plaintiff fails to allege that any racial or class-based
discriminatory animus was the root of the alleged constitutional
defendants likewise cannot attach under § 1985.
As with the magistrate judge’s findings as to the failings of
his complaint against the other defendants, the plaintiff fails to
address the factual basis for his claims in any more detail, or to
recognize that the vehicles by which he purports to bring this
civil action do not afford him a remedy against these defendants.
As such, motion to dismiss of defendants Gamble, Fowler and Blake
is granted in its entirety.
Motions to impose filing restrictions
The second report and recommendation entered by the magistrate
judge recommends that this Court grant the filing restrictions
requested in the two motions filed by defendants Gamble, Fowler and
Blake, and defendant judges Mazzone, Recht, and Wilson.8
plaintiff has also objected to this recommendation, and thus this
recommendations de novo.
In their motions for the imposition of
filing restrictions, the defendants argue that the plaintiff, Greg
Givens, and Carol Pizzuto have continuously required them to
respond to and defend themselves against repetitious litigation
They assert that all of this litigation is vexatious
and has related to the same or similar issues.
restrictions against vexatious and repetitive litigants from the
injunctions are severe remedies, and “must be used sparingly” as
they must be weighed against litigants’ constitutional rights of
due process of law and access to the courts.
Cromer v. Kraft Foods
N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004).
Prior to imposing
any pre-filing restrictions, the court must give the litigant
As noted above, all defendants have since joined in these two
notice and an opportunity to be heard, and pro se litigants must be
given special consideration prior to the imposition of any such
Id. at 818-19.
In determining whether a pre-filing
injunction is appropriate, the Court must consider the totality of
the circumstances with special consideration given to the following
(1) the party’s history of litigation, in particular
whether he has filed vexatious, harassing, or duplicative
lawsuits; (2) whether the party had a good faith basis
for pursuing the litigation, or simply intended to
harass; (3) the extent of the burden on the courts and
other parties resulting from the party’s filing; and (4)
the adequacy of alternative sanctions.
Id. at 818.
Following the filing of the motions for filing restrictions,
the magistrate judge notified the plaintiff of the motions and held
an evidentiary hearing on the motions, allowing the plaintiff, Greg
Givens, and Carol Pizzuto to present evidence and argument on their
own behalf in opposition to the imposition of such restrictions.
exhibits relating to the repetitive and vexatious nature of the
previous and current litigation, as well as the burden that this
litigation has placed upon them.
The magistrate judge then
considered all of the circumstances surrounding this case and the
previous litigation, considered the factors delineated in Cromer,
and concluded that filing restrictions were appropriate.
Court agrees and will thus affirm the magistrate judge’s report and
As summarized above, since the criminal charges against Greg
Givens were dismissed in 2008, the plaintiff, Greg Givens and Carol
Pizzuto have filed a total of at least ten lawsuits in the Circuit
Monongalia County, and seven cases in this Court.
The Givens and
Ms. Pizzuto have also sought redress in the United States Court of
Appeals for the Fourth Circuit.
All of these suits have dealt in
some respect with the charges against Greg Givens, and the lawsuits
and citizen indictments filed by the Givens and Ms. Pizzuto as a
result thereof. The actual number, nature and dispositions of each
suit brought by the plaintiff, Greg Givens, and Carol Pizzuto is
discussed at length by the magistrate judge in his report and
recommendation recommending that filing restrictions be entered
reference and will not be reiterated herein.
However, this Court
has fully considered each of these cases in addition to the
totality of the litigation history involving these defendants, this
plaintiff, Greg Givens and Carol Pizzuto.
While the exact defendants and allegations made in each of the
many cases filed by the Givens and Ms. Pizzuto in this Court and in
the courts of the State of West Virginia vary slightly from case to
case, it is clear that, as the magistrate judge found, all of the
lawsuits have snowballed from the initial criminal charges filed
against Greg Givens in 2008.
All of the named defendants and the
allegations made against each of them have had some connection
either to these original charges, or to one of the cases filed by
the Givens and Ms. Pizzuto as a result of those charges.
every single one of these cases has been found to lack merit by
courts and judges both within and outside of Ohio County, West
Accordingly, it is clear that these cases can only be
characterized as vexatious, and intended to harass.
especially with regard to the latest and continuing civil actions,
it cannot be said that the plaintiff, Greg Givens, or Carol Pizzuto
had a good faith basis for pursuing the allegations, which had
consistently been rejected by a number of courts over the past five
With regard to these issues, the plaintiff argues in his
objections that the lawsuits that he, Greg Givens, and Carol
Pizzuto have filed over the last five years are not identical or
This Court agrees with the plaintiff that not all of
the suits filed have been identical to previously filed and
However, as noted above, it is clear that all of
the litigation raises substantially the same allegations, and has
a single common derivation point in the criminal charges filed
against Greg Givens in 2008.
Accordingly, while the plaintiff’s
nonetheless finds it to be substantially similar and duplicative.
Next, the magistrate judge found, and this Court agrees, that
the burden on the defendants and the Court has been sufficiently
severe to warrant pre-filing restrictions against this plaintiff.
Defendant Gamble testified at the magistrate judge’s evidentiary
hearing that he and his law firm have spent more than $192,000.00
defending Main Street Bank only against these lawsuits.
Gamble further testified that this number did not even include the
costs to him in defending himself against the continuous litigation
filed against him by the plaintiff, Greg Givens, and Carol Pizzuto.
The plaintiff argues that the burden on the defendants has been
exaggerated, and that defendant Gamble has not presented any
evidence to support his testimony regarding the amount spent in
defending Main Street Bank.
The plaintiff also asks this Court to
hold a hearing and require defendant Gamble to present evidence in
This Court need not address the support either provided or not
provided by defendant Gamble for his claimed expenditures related
to the defense of Main Street Bank. Considering generally the
number of lawsuits filed by this plaintiff, Greg Givens, and Carol
Pizzuto, and the number of times that the defendants have had to
defend themselves against the same, and considering the significant
addressing these numerous cases over the years, this Court finds
that the burden that has been placed on all involved as a result of
the plaintiff’s relevant litigation is sufficient to warrant prefiling restrictions against this plaintiff.
This conclusion is
reached without regard to the actual amount spent by defendant
Gamble in defending Main Street Bank. Accordingly, the plaintiff’s
objections are overruled, and his motion for a hearing to require
defendant Gamble to produce evidence of the amount actually spent
in the defense of Main Street Bank is denied.
The plaintiff also argues that the defendants have not been
litigation between these parties.9 However, the plaintiff does not
offer any facts or evidence regarding any specific arguments made
by the defendants which were less than candid.
magistrate judge and this Court have both considered the objective
record of litigation filed by the plaintiff, Greg Givens and Carol
Pizzuto since 2008, and have not taken the defendants’ arguments at
face value without consideration of other sources.
As such, the
plaintiff’s objections regarding the veracity of the defendants’
assertions regarding the litigation past of this plaintiff, Greg
Givens, and Carol Pizzuto, are also overruled.
Finally, the magistrate judge concluded that no alternative
sanctions would be adequate.
This Court agrees because the
plaintiff, Greg Givens, and Carol Pizzuto have consistently shown
that they have no intention to discontinue their duplicitous
Over the past five years, the plaintiffs have sued
nearly every person and entity with which they have come in contact
The plaintiff also reiterates arguments regarding the merits
of his claims, and again argues that he has never received proper
access to the Courts. Because the merits of these arguments have
been considered in full above, this Court will not endeavor to
consider them a second time in relation to the defendants’ motions
to impose filing restrictions.
in any manner connected to their previously filed litigation or the
criminal charges filed against Greg Givens, and have done so in no
less than four different courts, under a myriad of different
theories. Each of these cases have been found to be without merit,
yet the plaintiff, Greg Givens, and Carol Pizzuto continue to file
new cases without so much as a brief hiatus. Accordingly, it seems
that nothing short of pre-filing restrictions will deter the
plaintiff from filing further vexatious litigation in this Court.
As a result, this Court finds that narrowly tailored pre-filing
injunctions are appropriate, and indeed necessary, as against this
The plaintiff is thus enjoined from filing a civil
action in this Court that is in any way related to any party’s
involvement in his prior lawsuits without first obtaining leave of
recommendations of the magistrate judge (ECF Nos. 71 and 96) are
plaintiff’s motion for disqualification of the undersigned judge
(ECF No. 9) is DENIED.
The plaintiff’s motion for reconsideration
of the order of reference referring this case to Magistrate Judge
Seibert (ECF No. 8) is also DENIED.
The motion to dismiss filed by
defendants Kenneth W. Blake, Stephen M. Fowler, and Keith C. Gamble
(ECF No. 18) is GRANTED. The motion to dismiss filed by defendants
James P. Mazzone, Arthur M. Recht, and Ronald E. Wilson (ECF No.
20), is GRANTED.
The motion to dismiss filed by defendants J.E.
Dean, J.C. Weaver, and S.A. Zimmerman (ECF No. 22) is GRANTED IN
PART as to defendants J.E. Dean and S.A. Zimmerman, and DENIED IN
PART as to defendant J.C. Weaver.
The motions to dismiss filed by
defendants Scott R. Smith and D. Luke Furbee (ECF Nos. 24 and 26)
are both GRANTED.
plaintiff (ECF Nos. 29 and 31) are GRANTED.
plaintiff is hereby ENJOINED from filing any further civil actions
in this Court which are related to any party’s involvement in his
prior lawsuits WITHOUT OBTAINING LEAVE OF COURT.
motion requesting that this Court hold a hearing to require
defendant Gamble to present evidence of his expenditures related to
his defense of Main Street Bank (ECF No. 99) is DENIED AS MOOT.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 30
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
pro se plaintiff by certified mail and to counsel of record herein.
July 1, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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