Pizzuto v. Smith et al

Filing 107

MEMORANDUMN OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE AND IMPOSING FILING RESTRICTIONS: Granting 26 Motion to Dismiss; Granting 28 Motion to Dismiss; Granting 31 Motion to Impose Filing Restricti ons ; Granting 33 Motion for the Imposition of Filing Restrictions ; Adopting Report and Recommendations re 73 and 100 Reports and Recommendations ; Denying 7 Motion to Disqualify Judge; Denying 7 Motion for Hearing; Denying 8 Motion for Reconsideration ; Denying 8 Motion for Hearing; Denying as moot 102 Motion for Hearing; Denying 9 Motion for Reconsideration ; Denying 104 Motion For Introduction of Evidence ; Denying 9 Motion for Hearing; Granting 20 Motion to Dismiss; Granting 22 Motion to Dismiss; Granting in part and Denying in part 24 Motion to Dismiss. Plaintiff is Enjoined from filing further civil actions in this Court which are related to any prior lawsuits without obtaining leave of court. Signed by Senior Judge Frederick P. Stamp, Jr on 7/1/13. (copy to Pltff by cert. mail)(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL L. GRAY PIZZUTO,
Plaintiff,
v.

Civil Action No. 5:12CV149
(STAMP)

SCOTT R. SMITH, KEITH C. GAMBLE,
STEPHEN M. FOWLER, D. LUKE FURBEE,
OFFICER S.A. ZIMMERMAN,
OFFICER D.L. ROBINSON,
HONORABLE JAMES P. MAZZONE,
HONORABLE ARTHUR M. RECHT,
HONORABLE RONALD E. WILSON,
KENNETH W. BLAKE, JULIE L. KREEFER,
and TONI VANCAMP,
individually and collectively,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATIONS OF MAGISTRATE JUDGE
AND IMPOSING FILING RESTRICTIONS
I.

Procedural History

On October 4, 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
her 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

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

plaintiff’s complaint to the Honorable James E. Seibert, United
States Magistrate Judge, for report and recommendation.

The

plaintiff then filed a number of motions, including two motions for
reconsideration of the order of reference (ECF Nos. 8 and 9), and
a motion to disqualify both Magistrate Judge Seibert and the
undersigned

judge

from

hearing

this

case

(ECF

No.

7).

The

magistrate judge denied the plaintiff’s motion to disqualify him
from hearing the case, and granted the plaintiff’s motion to
proceed without prepayment of fees.
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, Ronald E. Wilson, and Julie L.
Kreefer filed motions for the imposition of filing restrictions
against the plaintiff (ECF Nos. 31 and 33).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 S.A. Zimmerman. He informed the parties of their
right to file objections to his report within fourteen days of
receiving

a

copy

thereof,

and

the

plaintiff

filed

2

timely

Defendants Blake, Fowler, and Gamble filed a joint motion to
dismiss (ECF No. 20).
Defendants Mazzone, Recht, Wilson, and
Kreefer also filed a joint motion to dismiss (ECF No. 22),
defendants Robinson, and Zimmerman filed a joint motion to dismiss
(ECF No. 24), and defendants Furbee and VanCamp filed a joint
motion to dismiss (ECF No. 28). Finally, defendant Smith filed an
individual motion to dismiss (ECF No. 26).
3

All defendants have now joined in these motions.
2

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
plaintiff.

The plaintiff also filed objections to this report and

recommendation, as well as a motion asking this Court to hold a
hearing

which

would

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.

The plaintiff also filed a motion for introduction of

evidence and a hearing on that evidence.

All moving defendants

filed responses to the plaintiff’s objections to the report and
recommendation

relating

to

their

motions

to

impose

filing

restrictions, and defendant Gamble responded to the plaintiff’s
motion requesting an accounting of his costs.

4

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. 73 and
100), as well as below in the facts section of this memorandum
opinion.
3

All pending motions, as well as the magistrate judge’s two
reports, are now fully briefed and ripe for disposition by this
Court.

For

the

reasons

that

follow,

this

Court

denies

the

plaintiff’s motion requesting that this judge recuse himself from
this matter, denies the plaintiff’s motion for reconsideration of
the

order

of

reference,

and

affirms

and

adopts

both

of

the

magistrate judge’s report and recommendations in their entirety.
The plaintiff’s motion for a hearing is thus also denied as moot.
II.

Facts

The plaintiff in this case has a long relationship with both
this Court and the courts of the State of West Virginia.

She, her

son, Greg Givens, and her son’s uncle, Dennis Givens, 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.
cashed this check at Main Street Bank.

Greg Givens allegedly

The charges in that 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

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).
4

Following the dismissal of the charges against Greg Givens,
he, the plaintiff, and Dennis Givens 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 Dennis Givens began to sue defendant
Gamble and his law firm for actions relating to the dismissed
cases.

These civil cases were also dismissed on the merits and,

following these dismissals, the plaintiff, Greg Givens, and Dennis
Givens appeared before an Ohio County grand jury, where 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
Mazzone.

After an investigation into the allegations contained in

6

Prior to appearing before the grand jury and obtaining a
citizen indictment, the plaintiff and her 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.
1981).
5

the indictments, defendant Furbee recommended dismissal of the
indictments, and Judge Mazzone issued an order following that
recommendation.

Following the dismissal of these indictments, two

of the defendant judges denied the plaintiff and the Givens’
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 Dennis Givens in that court.

Greg

Givens then filed suit in this Court against all parties involved
in the citizen indictment against defendant 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.

This case was also

dismissed on the merits, and Greg Givens’ appeal remains pending.
The

plaintiff

then

filed

this

civil

along

with

analogous civil actions filed by Greg and Dennis Givens.7

See

Civil Action Nos. 5:12CV145 and 5:12CV155.

action,

Unfortunately, this

complaint, like all complaints and filings that have been presented
to this Court by the plaintiff and Greg and Dennis Givens, is
exceedingly difficult to follow and to identify the allegations set
forth. However, after review of the report and recommendation, the

7

This Court notes that the plaintiff and Greg and Dennis
Givens 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.
6

complaint, and the filings by all parties, it seems that the
plaintiff claims that her civil rights were denied by defendants in
their various roles connected to the citizen indictments obtained
against defendant Gamble, her 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.
III.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

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.”
§ 636(b)(1)(A).

28 U.S.C.

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.
IV.
A.

Discussion

Plaintiff’s motion for recusal and for reconsideration of

order of reference
Prior to addressing the magistrate judge’s reports, this Court
must

consider

the

plaintiff’s

motion

requesting

that

the

undersigned judge recuse himself from hearing this case, and the
plaintiff’s motion for reconsideration of this Court’s order of

7

reference which referred this case to the magistrate judge for
review and report and recommendation.
1.

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
hearing

a

case

when

“a

reasonable

person,

knowing

all

the

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 her 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.

In fact, this Court notes that none of the defendants in

that case are defendants to this civil action.

Accordingly,

finding the 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.

8

2.

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
time

it

is

determined

that

the

plaintiff

proceeding

without

prepayment “fails to state a claim on which relief may be granted.”
All of the defendants have also filed motions to dismiss.
28,

United

States

“[n]otwithstanding
“designate

a

Code,

any

Section

provision

magistrate

judge

to

Title

636

of

allows

this

law

to

contrary”

conduct

the

hearings,

Court,
to

including

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 . . .”

Accordingly, this

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
magistrate

judge

for

report

and

recommendation.

Finding

it

appropriate to have done so in this case, the plaintiff’s motion
for reconsideration of the order of reference is denied.
B.

Motions to dismiss
The magistrate judge addressed each of the motions to dismiss

in turn, and this Court will do the same.

9

1.

Motion to dismiss by Judges Mazzone, Recht, Wilson, and

Kreefer
These defendants, with the exception of defendant Kreefer, are
all judges of the Circuit Court of Ohio County.

Defendant Kreefer

is the court reporter for Judge Wilson. Again, as noted above, the
plaintiff’s allegations against this 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 her day in court with regard to all previously filed
litigation in this Court and in the courts of the State of West
Virginia.

She also alleges that defendant Kreefer deprived her of

access to the courts by creating an inaccurate record in one of the
previous cases filed by the plaintiff.
From what this Court can gather from the available record,
these defendants were involved in the previous litigation of the
Givens and Ms. Pizzuto only in that they were assigned to the
various cases filed by the plaintiff, and Greg and Dennis Givens.
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.

Judges Recht and Wilson also

dismissed the civil cases filed by the Givens and Ms. Pizzuto in
the Circuit Court of Ohio County.

Judge Recht was the judge who

issued filing restrictions in Ohio County against the plaintiff,

10

and Greg and Dennis Givens.

Ms. Kreefer, a court reporter,

transcribed certain proceedings before Judge Wilson.
a.

The judge defendants

The plaintiff names the judge defendants in Counts I through
V of her complaint.

Count I alleges that the judges conspired to

violate her 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
against

the

Plaintiff,

without

checking

into

the

facts,

and

evidence fixed in a [sic] extrajudicial process beforehand . . .”
Count II also alleges that Judge Recht conspired with defendants
Gamble and Fowler to deny her “the right to petition secured by the
First Amendment . . . by introducing and issuing such decree
depriving Plaintiff of her fundamental rights to the Constitution
and petition by issuing such unconstitutional order or decree
against the Plaintiff denying due process and access to the
courts.”

Count III asserts that the judges denied the plaintiff

her right to access the courts, as well as her right to due process
in denying her a second chance to appear before the grand jury.
Count IV simply alleges that the judges have denied the plaintiff

11

equal protection of the law, and Count V claims physical and
emotional distress.
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 Rule 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).

In

support of this recommendation, the magistrate judge asserts that
the plaintiff has failed to allege a single fact in support of her
conclusory allegations against these defendants.
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 her claims to move forward.
Finally, the plaintiff’s objections refer to a petition for writ of
prohibition, which she 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 her 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.”

This requirement

has been determined by the United States Supreme Court to require

12

that the plaintiff allege more than bare conclusions of liability,
but rather to include sufficient factual allegations to raise the
possibility
Atlantic

of

v.

liability

Twombly,

“above

550

a

speculative

U.S.

544,

555

level.”

(2007).

Bell

Here,

the

plaintiff’s allegations against the judge defendants are vague and
conclusory and fail to make any factual allegations which would
make her right to relief against these defendants plausible.
plaintiff’s

objections

also

fail

to

address

the

notes,

even

The

factual

deficiencies of her complaint.
Further,

as

the

magistrate

judge

if

the

plaintiff’s complaint was factually sufficient under Rule 8, her
claims against the judge defendants must fail because the judge
defendants are entirely immune from suit for all actions taken from
the bench.

It is well established that “judges of courts of

superior or general jurisdiction are not liable to civil actions
for their judicial acts, even when such acts are in excess of their
jurisdiction, and are alleged to have been done maliciously or
corruptly.”

Bradley v. Fisher, 80 U.S. 335, 347 (1872).

All

allegations made against these defendants unquestionably fall
within this category of alleged wrongdoing in judicial acts, as
these defendants’ actions consist of dismissing the plaintiff’s
previous cases, denying her access to the grand jury, and imposing
filing restrictions against her.
presented

no

allegations

to

The plaintiff’s complaint has

suggest

that

any

of

the

judge

defendants here are accused of depriving the plaintiff of her

13

rights in any capacity beyond their judicial positions and actions.
Further, the plaintiff’s objections to the magistrate judge’s
report and 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.
the

magistrate

judge

that

Accordingly, this Court agrees with
the

allegations

against

the

judge

defendants must be dismissed in their entirety.
b.

Defendant Kreefer

The magistrate judge also recommends that this Court grant the
motion to dismiss as it pertains to defendant Kreefer.

This Court

assumes, as did the magistrate judge, that the plaintiff accuses
defendant Kreefer of falsifying a transcript on the dates stated in
the complaint, June 13, 2011 and February 13, 2012.

Defendant

Kreefer acknowledges that on June 13, 2011 and February 13, 2012,
transcripts from scheduling conferences were produced in cases
filed by the Givens and Carol Pizzuto.

However, this allegation

also fails to state a claim, because there is no indication of what
the falsification of the record could have been nor any allegation
of injury to the plaintiff by this alleged falsity.

Accordingly,

this Court will grant the motion to dismiss as to defendant Kreefer
as well.
2.

Motion to dismiss by Officers Robinson and Zimmerman

With regard to defendant Officers Robinson and Zimmerman’s
joint motion to dismiss, the magistrate judge recommends that this

14

Court grant the motion, in part, and deny it, in part, thus
dismissing defendant Robinson, but allowing the plaintiff to engage
in discovery with defendant Zimmerman.

Similar to the allegations

made against the judge defendants, the allegations made against
defendants Robinson and Zimmerman are generally 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 Federally
[sic] protected right.”

This Court agrees with the magistrate

judge that the plaintiff has failed to allege a single fact to
support liability against Officer Robinson, but rather simply
offers conclusory allegations of an equal protection violation
without any explanation.

Accordingly, all allegations against

Officer Robinson must be dismissed.8
However,

giving

the

plaintiff’s

complaint

the

required

deference afforded to a pro se litigant, the magistrate judge found
that a single arguable factual allegation has been made against
Officer Zimmerman.

Count III of the plaintiff’s complaint alleges

that Officer Zimmerman 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

8

Again, the plaintiff’s objections to the magistrate judge’s
recommendations as to these defendants are the same as those to the
recommendation that the judge defendants be dismissed. Thus, they
will not be addressed again.
15

foster favor and provide advantage to eventual criminally indicted
to affect the course of justice in favor of Defendant Keith C.
Gamble . . .”9

The magistrate judge recommends that THIS CLAIM

ONLY be permitted to move forward because, while vague, it does
provide some factual basis for the allegations against defendant
Zimmerman in Count III.

This Court agrees, and will thus affirm

the magistrate judge on this point.
3.

Motions to dismiss by Scott R. Smith, D. Luke Furbee, and

Toni VanCamp
The magistrate judge next recommends that this Court grant the
motions to dismiss filed by defendants Smith individually, and
Furbee and VanCamp jointly.

Defendants Smith and Furbee were both

prosecuting attorneys who dealt with the criminal allegations that
the plaintiff and her 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.

Toni VanCamp served under the supervision of defendant

Furbee as a victim’s advocate.
Again, as to these defendants, the magistrate judge found that
no facts had been pled to support the plaintiff’s conclusory

9

This Court notes that this is the exact allegation made
against Officer Weaver, joined as a defendant to the civil action
filed by Dennis Givens (Civil Action No. 5:12CV145), but not joined
as a defendant herein.
16

allegations.

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
and as staff of a prosecutor of the state.

See Imbler v. Pachtman,

424 U.S. 409 (1976); Lyles v. Sparks, 79 F.3d 372 (4th Cir. 1996);
and Hill v. City of New York, 45 F.3d 653 (2d Cir. 1995).
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 and staff of a prosecutor.

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 plaintiff’s citizen indictments against
defendant

Gamble.

Accordingly,

this

Court

will

affirm

the

magistrate judge in this capacity as well and grant the motions to
dismiss filed by defendants Smith, Furbee, and VanCamp.
4.

Motion to dismiss by defendants Fowler, Gamble and Blake

The magistrate judge next 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.
exception

of

one

allegation,

which

is

addressed

With the

below,

the

allegations against these defendants mirror the conclusory and

17

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
factual support.

However, the plaintiff also alleges that these

defendants denied her access to the courts and violated her due
process

rights

by

“acting

in

concert

in

an

‘intertwined

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
provide

magistrate
some

judge

factual

found

basis

for

that

while

these

the

plaintiff’s

allegations
claims,

the

plaintiff’s claimed legal bases for relief does not provide a cause
of action against these defendants for this alleged activity. This
Court agrees.

The plaintiff asserts in her complaint that these

defendants have violated her Fourteenth Amendment rights to due
process and equal protection, as well as her First Amendment right
to free speech.

She claims that she 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,”

18

and for racial discrimination with regard to property ownership and
transfer.

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
these defendants.
for

violations

Section 1983 provides a private right of action
of

Constitutional

“rights,

privileges,

or

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)).
In

this

case,

defendants

Gamble,

Fowler

and

Blake

are

all

unquestionably private citizens who were operating as such with
regard to all previous litigation involving the plaintiff and Greg
and Dennis Givens.

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 State.

19

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
racial,

or

perhaps

otherwise

class-based,

invidiously

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
deprivations

alleged.

Accordingly,

liability

defendants likewise cannot attach under § 1985.

20

against

these

As with the magistrate judge’s findings as to the failings of
her complaint against the other defendants, the plaintiff fails to
address the factual basis for her claims in any more detail, or to
recognize that the vehicles by which she purports to bring this
civil action do not afford her a remedy against these defendants.
As such, the motion to dismiss filed by defendants Gamble, Fowler
and Blake is granted in its entirety.
C.

Motion for introduction of evidence
This Court notes that the plaintiff has also filed a motion

for introduction of evidence.

This motion attaches a number of

letters and orders of this and other courts, but the motion does
not indicate for what the plaintiff would like this evidence
considered.

Further, after review of the attached evidence, this

Court is unable to discern for what the evidence is offered, or to
find any support for any of the plaintiff’s claims therein.
Accordingly, while this Court has reviewed and considered the
evidence attached to the plaintiff’s motion for introduction of
evidence, the evidence attached does not change this Court’s
conclusions herein.

The motion for introduction of evidence is

thus denied.
D.

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

21

Blake, and defendant judges Mazzone, Recht, and Wilson.10

The

plaintiff has also objected to this recommendation, and thus this
Court

will

review

the

recommendations de novo.

magistrate

judge’s

findings

and

In their motions for the imposition of

filing restrictions, the defendants argue that the plaintiff and
Greg and Dennis Givens have continuously required them to respond
to and defend themselves against repetitious litigation since 2008.
They assert that all of this litigation is vexatious and has
related to the same or similar issues.
Federal

courts

derive

their

authority

to

impose

filing

restrictions against vexatious and repetitive litigants from the
All

Writs

Act,

28

U.S.C.

§

1651(a).

However,

pre-filing

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
notice and an opportunity to be heard, and pro se litigants must be
given special consideration prior to the imposition of any such
restrictions.

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
four factors:

10

As noted above, all defendants have since joined in these two
motions.
22

(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 and
Greg and Dennis Givens to present evidence and argument on their
own behalf in opposition to the imposition of such restrictions.
At

the

hearing,

the

defendants

also

presented

testimony

and

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.

This

Court agrees and will thus affirm the magistrate judge’s report and
recommendation.
As summarized above, since the criminal charges against Greg
Givens were dismissed in 2008, the plaintiff, and Greg and Dennis
Givens have filed a total of at least ten lawsuits in the Circuit
Court

of

Ohio

County,

two

lawsuits

in

the

Circuit

Monongalia County, and seven cases in this Court.

Court

of

The Givens and

Ms. Pizzuto have also sought redress in the United States Court of

23

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, and Greg and Dennis Givens is
discussed at length by the magistrate judge in his report and
recommendation recommending that filing restrictions be entered
against

this

plaintiff.

This

recitation

reference and will not be reiterated herein.

is

incorporated

by

However, this Court

has fully considered each of these cases in addition to the
totality of the litigation history involving these defendants, this
plaintiff, and Greg and Dennis Givens.
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.

Further,

every single one of these cases has been found to lack merit by
courts and judges both within and outside of Ohio County, West
Virginia.

Accordingly, it is clear that these cases can only be

characterized as vexatious, and intended to harass.

24

Further,

especially with regard to the latest and continuing civil actions,
it cannot be said that Greg Givens, Dennis 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
years.
With regard to these issues, the plaintiff argues in her
objections that the lawsuits that she, and Greg and Dennis Givens
have

filed

duplicative.

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
dismissed cases.

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.
litigation

has

not

been

Accordingly, while the plaintiff’s
technically

identical,

this

Court

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.

Defendant

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 and Greg and Dennis Givens. The

25

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 regard.
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, and Greg and Dennis
Givens, and the number of times that the defendants have had to
defend themselves against the same, and considering the significant
judicial

resources

that

have

been

expended

in

continually

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 her 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
candid

with

the

Court

regarding

26

the

circumstances

of

past

litigation between these parties.11 However, the plaintiff does not
offer any facts or evidence regarding any specific arguments made
by the defendants which were less than candid.

Further, the

magistrate judge and this Court have both considered the objective
record of litigation filed by the 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
Dennis Givens are also overruled.
Finally, the magistrate judge concluded that no alternative
sanctions would be adequate.

This Court agrees because the

plaintiff and the Givens have consistently shown that they have no
intention to discontinue their duplicitous litigation.

Over the

past five years, these plaintiffs have sued nearly every person and
entity with which they have come in contact in any manner connected
to their previously filed litigation or the criminal charges filed
against the plaintiff, 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
and the Givens continue to file new cases without so much as a

11

The plaintiff also reiterates arguments regarding the merits
of her claims, and again argues that she 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.
27

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 plaintiff. 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 her prior lawsuits
without first obtaining leave of court.
V.
For

the

reasons

Conclusion

described

above,

the

report

and

recommendations of the magistrate judge (ECF Nos. 73 and 100) are
AFFIRMED and ADOPTED in their entirety. The plaintiff’s motion for
disqualification of the undersigned judge (ECF No. 7) is DENIED.
The

plaintiff’s

motions

for

reconsideration

of

the

order

of

reference referring this case to Magistrate Judge Seibert (ECF Nos.
8 and 9) are also DENIED.

The motion to dismiss filed by

defendants Kenneth W. Blake, Stephen M. Fowler, and Keith C. Gamble
(ECF No. 20) is GRANTED. The motion to dismiss filed by defendants
Julie L. Kreefer, James P. Mazzone, Arthur M. Recht, and Ronald E.
Wilson (ECF No. 22) is GRANTED.

The motion to dismiss filed by

defendants D.L. Robinson and S.A. Zimmerman (ECF No. 24) is GRANTED
IN PART as to defendant Robinson and DENIED IN PART as to defendant
Zimmerman.

The motion to dismiss filed by Scott R. Smith (ECF No.

26) is GRANTED.

The motion to dismiss filed by D. Luke Furbee and

28

Toni VanCamp (ECF No. 28) is GRANTED.

The plaintiff’s motion for

introduction of evidence (ECF No. 104) is DENIED.
The

motions

to

impose

filing

restrictions

plaintiff (ECF Nos. 31 and 33) are GRANTED.

against

the

Accordingly, the

plaintiff is hereby ENJOINED from filing any further civil actions
in this Court which are related to any party’s involvement in her
prior lawsuits WITHOUT OBTAINING LEAVE OF COURT.

The plaintiff’s

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. 102) 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, she is ADVISED that she
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.
DATED:

July 1, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

29