Cramer v. State of West Virginia
Filing
13
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 11 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DISMISSING THE PLAINTIFF'S 1 COMPLAINT. The plaintiffs complaint is hereby DISMISSED WITH PREJUDICE. Further, it is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment in this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 7/2/2018. (kac) (Copy to pro se plaintiff (via cm/rrr)) (Additional attachment(s) added on 7/2/2018: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PAUL JOE CRAMER,
Plaintiff,
v.
Civil Action No. 5:17CV186
(STAMP)
STATE OF WEST VIRGINIA,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
DISMISSING THE PLAINTIFF’S COMPLAINT
I.
Background
The pro se1 plaintiff, a resident of Ohio, filed a complaint
against the state of West Virginia pursuant to 42 U.S.C. § 1983.
ECF No. 1.
In his complaint, the plaintiff alleges that he was
arrested in Belmont County, Ohio, based on a warrant from Ohio
County, West Virginia.
ECF No. 1-1 at 2. The plaintiff was held
for thirty days and released, but told that the warrant was still
active and warned not to go to West Virginia.
ECF No. 1-1 at 2.
He was later arrested in Belmont County under the same warrant and
held for 120 days before being released.
ECF No. 1-1 at 2.
The
plaintiff contends that this combination of arrests violated his
due process rights and his constitutional protection against double
jeopardy.
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ECF No. 1-1 at 2.
The plaintiff argues that “when a
“Pro se” describes a person who represents himself in a court proceeding without the
assistance of a lawyer. Black’s Law Dictionary 1416 (10th ed. 2014).
person is released from jail on a detainer from a demanding state
the demanding state must drop the warrant.” ECF No. 1-1 at 2.
For
relief, the plaintiff seeks to have Ohio County, West Virginia drop
the arrest warrant and to be awarded $1,500,000 for lost wages and
pain and suffering.
ECF No. 1 at 9.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil
Procedure
7.02(c),
this
case
was
Magistrate Judge James E. Seibert.
referred
to
United
States
The magistrate judge entered a
report and recommendation. ECF No. 11. In his recommendation, the
magistrate judge found that under § 1983 the plaintiff must allege
that
a
person
acting
under
color
of
state
law
violated
the
plaintiff’s rights guaranteed by the Constitution or federal law.
ECF No. 11 at 4.
However, under § 1983, the state of West Virginia
is not a “person.”
ECF No. 11 at 4.
Accordingly, the magistrate
judge found that the complaint fails to state a claim and should be
dismissed with prejudice.
ECF No. 11 at 5.
The plaintiff did not file objections to the report and
recommendation of the magistrate judge. For the reasons set forth
below, the report and recommendation of the magistrate judge (ECF
No. 11) is affirmed and adopted. Therefore, the complaint (ECF No.
1) is dismissed.
II.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
2
of
the
magistrate
judge’s
recommendation to which objection is timely made.
Because no
objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
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As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
III.
Discussion
After reviewing the parties’ filings and the record, this
Court is not “left with the definite and firm conviction that a
mistake has been committed” by the magistrate judge. United States
v. Gypsum Co., 333 U.S. at 395.
The magistrate judge properly
reviewed the plaintiff’s complaint to determine whether it was
frivolous. A complaint is frivolous if “it lacks an arguable basis
either in law or fact.”
(1989).
Neitzke v. Williams, 490 U.S. 319, 325
A complaint is also frivolous if the plaintiff has little
or no chance of success.
See Estelle v. Gamble, 429 U.S. 97, 106
(1976).
In this civil action, the magistrate judge correctly held the
pro se complaint to less stringent standards than those complaints
drafted by attorneys.
(1972).
See Haines v. Kerner, 404 U.S. 519, 520
However, even liberally construed, the magistrate judge
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correctly determined that the plaintiff’s complaint fails to state
a claim because it does not name a proper defendant.
ECF No. 11 at
4. As the magistrate judge noted, a state cannot be sued under
§ 1983 because it is not a “person.” ECF No. 11 at 4 (citing Will
v. Michigan Dep’t Of State Police, 491 U.S. 58 (1989)). Thus, the
plaintiff cannot bring a § 1983 against the State of West Virginia.
Therefore,
this
Court
finds
magistrate are not clearly erroneous.
that
the
findings
of
the
Accordingly, the report and
recommendation is affirmed and adopted in its entirety.
IV.
Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 11) is AFFIRMED and ADOPTED.
Accordingly, the plaintiff’s complaint (ECF No. 1) is hereby
DISMISSED WITH PREJUDICE.
Further, it is ORDERED that this civil
action be DISMISSED and STRICKEN from the active docket of this
Court.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
July 2, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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