Kanode v. Swope, et al
MEMORANDUM OPINION AND ORDER: The Court GRANTS Plaintiff's 15 Motion to Extend Time to File Objections to the Proposed Findings and Recommendation. His objections filed on 3/19/2012 are deemed to have been timely filed. The Court ADOPTS the [1 3] Proposed Findings and Recommendation of Magistrate Judge VanDervort; DENIES Plaintiff's 1 Motion to Proceed Without Prepayment of Fees; DISMISSES Plaintiff's complaints and/or petitions for writ of mandamus and directs the Clerk to rem ove these matters from the Court's docket. The 14 Petition for Writ of Mandamus filed on 2/28/2012 was filed after Magistrate Judge VanDevort issued his Proposed Findings and Recommendation. Accordingly, it is DENIED as moot. Signed by Senior Judge David A. Faber on 9/28/2012. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
MICHAEL KANODE, SR.,
CIVIL ACTION NOS. 1:09-1530
JUDGE DEREK SWOPE, et al.,
MEMORANDUM OPINION AND ORDER
By Standing Order, the action was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).
VanDervort submitted his Findings and Recommendation to the court
on February 22, 2012, in which he recommended that the court deny
plaintiff’s motion to proceed without prepayment of fees, dismiss
plaintiff’s complaints, and remove these matters from the court’s
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendations.
On February 29, 2012, plaintiff
filed a motion for an extension of time to file his objections.
(Doc. No. 15).
That motion is hereby GRANTED and his objections
filed on March 19, 2012, are deemed to have been timely filed.
With respect to those objections, the court has conducted a de
Factual and Procedural Background
On December 21, 2009, March 29, 2010, December 15, 2011,
and January 25, 2012, plaintiff filed Complaints and a Petition
for Writ of Mandamus claiming entitlement to relief under 42
U.S.C. § 1983.
(Civil Action Nos. 1:09-1530, 1:10-0407, 1:11-
0994, and 1:12-0157).
By Order entered on February 22, 2012,
Magistrate Judge VanDervort consolidated the four civil actions.
Plaintiff, proceeding pro se, is currently an inmate at
Huttonsville Correctional Complex in Huttsonsville, West
Named as defendants are:
(1) Judge Derek C. Swope, Mercer County Circuit Court;
(2) Anthony Bisaha, Mercer County Family Court Judge;
(3) Mary Ellen Griffith, Mercer County Family Court Judge;
(4) Timothy D. Boggess, Prosecuting Attorney; (5) Scott Ash,
Assistant Prosecuting Attorney; (6) Mike L. Gills, Detective;
(7) Mercer County Sheriff’s Department; (8) Michael P. Cooke,
Attorney; (9) McGinnis E. Hatfield, Jr., Attorney; (10) Thomas
Evans, Attorney; (11) Robert Holroyd, Attorney; (12) R. Thomas
Czarnik, Attorney; (13) Sherry Kanode; (14) West Virginia
Department of Health and Human Resources and Child Protective
Services; (15) Bureau for Child Support Enforcement, Charleston,
West Virginia; (16) Bureau for Child Support Enforcement,
Princeton, West Virginia; (17) State of West Virginia;
(18) Southern Highlands Community Mental Health Center, Inc.;
(19) Southern Regional Drug and Violent Crime Task Force;
(20) West Virginia State Police Detachment, Princeton, West
Virginia; (21) Sgt. Melissa Clemons; (22) Krista Ellison;
(23) Sgt. Jose Centeno; and (24) Deputy J.D. Ellison.
In his Complaints, Kanode alleges that his constitutional
rights were violated during two criminal proceedings, Case Nos.
07-F-206 and 07-F-330, in Mercer County Circuit Court.
to plaintiff, on December 14, 2006, he was arrested without a
warrant and in violation of his constitutional rights in Case No.
He further alleges that police officers used excessive
force during the arrest.
Plaintiff states that, on June 13,
2007, he was indicted for Possession of a Schedule I Controlled
Substance, To Wit: Marijuana, Conspiracy, and Possession of a
Schedule II Controlled Substance, To Wit: Methadone.
contends that he was convicted of marijuana possession on October
3, 2007, and sentenced to 6 months imprisonment by Judge Swope.
Plaintiff asserts that Defendant Clemons used Sherry Kanode, his
wife, as an informant to entrap him into possessing drugs and
coaxed Sherry Kanode into obtaining a Domestic Violence
Protective Order against him.
According to Kanode, Judge Swope
wrongly convicted him and falsely imprisoned him for 6 months.
He further alleges that he was discriminated against because his
last name is “Kanode.”
The second criminal proceeding of which plaintiff
complains concerns his January 22, 2008, conviction for Malicious
Assault, Burglary, Attempted Murder of the First Degree,
Violation of a Protective Order, Wanton Endangerment, and Assault
During the Commission of a Felony in Case No. 07-F-330.
According to plaintiff, he was wrongfully convicted because
Sherry Kanode committed perjury by saying he shot her when, in
fact, they were both shot during plaintiff’s efforts to get a gun
away from her.
Plaintiff contends that the detective and
assistant prosecutor gave false statements and encouraged Sherry
Kanode to testify falsely.
He also argues that Defendants Gills
and Ellison failed to conduct an adequate investigation.
further contends that Judge Swope denied him a fair and impartial
trial and imposed an excessive sentence upon him because he had
filed an ethics complaint against Judge Swope.
In support of
this contention, plaintiff states that he filed more than 30
motions during his trial and none were decided in his favor.
Plaintiff also contends that he was denied a fair and
impartial hearing during his child custody and divorce
According to Kanode, Judge Mary Ellen Griffith,
allowed improper “proceedings to be heard in court, which later
caused my daughter to be taken away.”
Civil Action No. 1:10-
0407, Doc. No. 1, p. 19.
He also asserts that McGinnis Hatfield,
his court-appointed guardian ad litem provided ineffective
assistance of counsel.
Next plaintiff complains of a forfeiture proceeding
before Judge Swope which he argues improperly denied him of
Although he was represented by counsel at the hearing,
plaintiff complains that he was not personally present to
represent his interests.
Plaintiff’s next complaint is that certain of the
defendants conspired to prosecute and wrongfully convict him of
crimes he did not commit.
Specifically, plaintiff contends that
Timothy Boggess, Scott Ash, Deborah Garton, and Nissa Kahle
conspired against him by coercing unfavorable testimony from his
Plaintiff also contends that Defendant Cooke, his court-
appointed counsel, conspired with the other defendants to
wrongfully convict him.
He also complains that Cooke worked for
Southern Highlands Community Mental Health Hospital where Sherry
Kanode was committed.
Finally, plaintiff contends that attorneys Cooke,
Hatfield, Czarnik, Evans, and Holroyd provided ineffective
assistance of counsel which, in turn, resulted in his wrongful
criminal conviction, loss of property rights, and loss of
Only state action in violation of an individual's
constitutional rights may serve as the basis for a cognizable
Section 1983 claim under federal law.
Therefore, in order to
prevail on his civil rights claims under 42 U.S.C. § 1983,
plaintiff must establish, first, that he was deprived of a right
secured by the constitution or laws of the United States, and
second, that the defendant(s) acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
Objection No. 1: Dismissal of Improper Parties
Magistrate Judge VanDervort recommended that the
following defendants be dismissed as they are not “persons” under
Section 1983: 1) the Mercer County Sheriffs Department; 2) West
Virginia Department of Health and Human Resources and Child
Protective Services; 3) Bureau for Child Support Enforcement,
Charleston, West Virginia; 4) Bureau for Child Support
Enforcement, Princeton, West Virginia, 5) State of West Virginia;
6) Southern Highlands Community Mental Health Center, Inc.;
7) Southern Regional Drug and Violent Crime Task Force; and
8) West Virginia State Police Detachment, Princeton, West
According to Kanode, Magistrate Judge VanDervort
“erred in his application of the law to these defendants”
because, under Monell v. Dept. of Social Servs., 436 U.S. 658
(1978), “municipal corporations can be held liable under § 1983.”
Objections at p. 2.
Plaintiff is correct that the Supreme Court in Monell
held that local governments, municipal corporations and school
boards were “persons” under section 1983.
Social Servs., 436 U.S. 658 (1978).
Monell v. Dept. of
However, the Court has also
made clear that a State is not a “person” for purposes of section
See Will v. Michigan Dept. of State Police, 491
U.S. 58, 66 (1989).
As the Court said:
[I]t does not follow that if municipalities are
persons then so are States. States are protected
by the Eleventh Amendment while municipalities
are not, . . . and we consequently limited our
holding in Monell “to local government units
which are not considered part of the State for
Eleventh Amendment purposes[.] Conversely, our
holding here does not cast any doubt on Monell,
and applies only to States or governmental
entities that are considered “arms of the State”
for Eleventh Amendment purposes.
Id. at 70 (internal citations omitted).
Based upon Magistrate
Judge VanDervort’s citation to Will v. Michigan Dept. of State
Police, 491 U.S. 58, 66 (1989), it is clear that he considered
the aforementioned parties to be the State or “arms of the State”
and, as such, entitled to Eleventh Amendment immunity.
Accordingly, no discussion of municipal liability under Monell
For this reason, to the extent that Kanode
objects to Magistrate Judge VanDervort’s recommended dismissal of
the West Virginia Department of Health and Human Resources and
Child Protective Services; Bureau for Child Support Enforcement,
Charleston, West Virginia; Bureau for Child Support Enforcement,
Princeton, West Virginia; Southern Highlands Community Mental
Health Center, Inc.; the State of West Virginia; and West
Virginia State Police Detachment, Princeton, West Virginia, that
objection is OVERRULED because these parties are “arms of the
State” and cannot be sued under § 1983.
However, as to the
Mercer County Sheriffs Department and the Southern Regional Drug
and Violent Crime Task Force, the objection is SUSTAINED because,
on the record before it, the court cannot conclude that these
parties are entitled to Eleventh Amendment immunity.1
Objection No. 2: Dismissal of Certain Claims Pursuant to
Heck v. Humphrey, 512 U.S. 477 (1994)
In his PF&R, Magistrate Judge VanDervort recommended that
the court dismiss plaintiff’s challenge to his January 23, 2008,
conviction for failure to state a cognizable claim under Section
1983 pursuant to Heck.
In Heck, the Court held that
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or
for other harm caused by actions whose
unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed
on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized
to make such determination, or called into
These defendants are dismissed, however, as the claims
against them are barred by the applicable statutes of
limitations. See Discussion of Objection No. 3 supra.
question by a federal court’s issuance of a writ
of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing the relationship to a conviction
or sentence that has not been so invalidated is
not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
had not demonstrated that his criminal conviction has been
invalidated, the magistrate judge recommended that plaintiff’s
claims be dismissed.
In his objections, Kanode contends the
magistrate judge erred because “recently the Circuit Court of
Mercer County, West Virginia ruled in plaintiff’s favor and
vacated several of the convictions the plaintiff had been
convicted of in Mercer County.”
Objections at pp. 3-4.
there is nothing in the record to support plaintiff’s assertion
that his conviction has been vacated.
For the reasons explained above, plaintiff’s objection is
Objection No. 3: Statute of Limitations
Magistrate Judge VanDervort recommended that plaintiff’s
claims for false arrest and false imprisonment be dismissed as
barred by the applicable one-year statute of limitations and that
his excessive force claim be dismissed as barred by the two-year
statute of limitations.
Plaintiff objects to the magistrate
judge’s conclusions, arguing that because he “is still reaping
the adverse effects of his property being illegally confiscated,
he is still incarcerated because of the conspiracies of the
defendants to convict him, he still is separated from his
daughter and his family has been torn apart by the negligence of
the defendants” that the statute of limitations has not run
because he is suffering a “continuous or repeated injury.”
The continuing tort doctrine has no application to
“[T]he distinguishing aspect of a continuing
tort with respect to negligence actions is continuing tortious
conduct, that is a continuing violation of a duty owed the person
alleging injury, rather than continuing damages emanating from a
discrete tortious act.
It is the continuing misconduct which
serves to toll the statute of limitations under the continuing
Mowery v. Logan County Board of Educ., Civil
Action No. 2:11-00050, 2012 WL 895921, *3 (S.D.W. Va. Mar. 15,
2012) (quoting Roberts v. W. Va. Am. Water Co., 221 W. Va. 373,
655 S.E.2d 119, 124 (W. Va. 2007)).
The acts complained of –
false arrest, false imprisonment, and excessive force - are
discrete tortious acts.
Plaintiff does not complain of
continuing tortious conduct, which is required for the continuing
tort doctrine to apply, but rather of continuing injury.
this reason, plaintiff’s third objection is OVERRULED.
Objection No. 4: Dismissal of Defendants Cooke, Hatfield,
Evans, Holroyd, and Czarnik
In his various filings, Kanode alleges that defendants
Michael P. Cooke, McGinnis E. Hatfield, Jr., Thomas Evans, Robert
Holroyd, and R. Thomas Czarnik violated his constitutional rights
by providing ineffective assistance of counsel.
VanDervort recommended that these defendants be dismissed
because, as Kanode’s attorneys, they were not “state actors” for
purposes of 42 U.S.C. § 1983.
See Vermont v. Brillon, 129 S.Ct.
1283, 1291 (2009) (“Unlike a prosecutor or the court, assigned
counsel ordinarily is not considered a state actor.”).
on the Court’s decision in Tower v. Glover, 467 U.S. 914 (1984),
Kanode contends that his attorneys conspired with state actors to
deprive him of his civil rights and, therefore, they are
considered state actors for purposes of 42 U.S.C. § 1983.
It is well established that an attorney does not act
under the color of state law when retained or court-appointed.
Vermont v. Brillon, 129 S.Ct. 1283, 1291 (2009)(“Unlike a
prosecutor or the court, assigned counsel ordinarily is not
considered a state actor.”); Polk County v. Dodson, 454 U.S. 312,
325 (1981)(“[A] public defender does not act under color of state
law when performing a lawyer's traditional functions as counsel
to a defendant in a criminal proceeding.”); Hall v. Quillen, 631
F.2d 1154, 1155–56 (4th Cir. 1980)(state-appointed counsel is not
acting under color of state law), cert. denied, 454 U.S. 1141
(1982); Deas v. Potts, 547 F.2d 800 (4th Cir. 1976)(“A private
attorney who is retained to represent a criminal defendant is not
acting under color of state law, and therefore is not amenable to
suit under § 1983.”).
However, counsel does act “under color of
state law” within the meaning of Section 1983 when engaged in a
conspiracy with state officials to deprive the defendant of
Tower v. Glover, 467 U.S. 914, 916 (1984).
Kanode has not sufficiently alleged a conspiracy claim
involving his attorneys.
He merely states that he “is claiming
that the above named defendants conspired with state officials to
deprive him of his civil rights.”
Objections at 5.
United States Court of Appeals for the Third Circuit noted in
dismissing a similar conspiracy claim:
Pursuant to Federal Rule of Civil Procedure 8(a),
a complaint must include “‘a short and plain
statement of the claim’ that will give the
defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.”
Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163,
168, 113 S. Ct. 1160, 122 L. Ed.2d 517 (1993)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.
Ct. 99, 2 L. Ed.2d 80 (1957)). Thus, a
“plaintiff should plead basic facts, such as they
are, for those are ‘the grounds' upon which the
plaintiff's claim rests.” In re Tower Air, Inc.,
416 F.3d 229, 237 (3d Cir. 2005). Albrecht,
however, fails to plead even “basic facts” in
support of his allegation that the prosecutor
worked “in collusion” with the defendants.
Albrecht does not suggest that the prosecutor
entered into an agreement with the defense, nor
does he allege any facts from which we can infer
that the prosecution shared the defendants'
motivation to deprive him of his constitutional
rights. Rather, the complaint contains only a
general averment of conspiracy amounting to
nothing more than a conclusion of law. The
prosecution's participation in the case does not
by itself, of course, support the existence of
any conspiracy. Thus, the complaint clearly
fails to give the defendants “fair notice of what
the plaintiff's claim is and the grounds upon which it rests.”
Accordingly, Albrecht's complaint fails to sufficiently allege
that Hamilton and Clash conspired with a state actor so as to
state a claim under Tower.
Albrecht v. Hamilton, No. 06-4313, 2007 WL 1217955, *2 (3d Cir.
Apr. 26, 2007).
As in Albrecht, plaintiff’s complaints fail to
give defendants fair notice of plaintiff’s claims and the grounds
upon which the claims rest.
Accordingly, Kanode’s general
averment of conspiracy does not convert defendants into state
actors for purposes of Section 1983.
For this reason, his
objection is OVERRULED.
Objection No. 5: Dismissal of Conspiracy Claims
Magistrate Judge VanDervort also found that plaintiff’s
conclusory allegations of a conspiracy claims did not establish a
Kanode argues that under the liberal
construction to be given pro se filings, that he has adequately
set forth his conspiracy claims.
The court disagrees.
“Plaintiffs who assert conspiracy claims under civil
rights statutes must plead the operative facts upon which their
claim is based.
Bald allegations that a conspiracy existed are
Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th
Cir. 1987) (footnote omitted).
“Although a pro se complaint is
liberally construed, an allegation of conspiracy requires more
than conclusory allegations.”
Salahuddin v. Cuomo, 861 F.2d 40,
43 (2d Cir. 1998) (applying the heightened requirement for
conspiracy claims in a pro se § 1983 action).
Although Plaintiff alleges a conspiracy between the
various Defendants, the Court is not required to accept such
conclusory statements as true.
662, 678 (2009).
Cf. Ashcroft v. Iqbal, 556 U.S.
The complaints are devoid of specific facts to
plausibly suggest that a conspiratorial agreement existed between
any of the named defendants.
Based on the foregoing, plaintiff’s objection is
Objection No. 6: Dismissal of Sherry Kanode
Magistrate Judge VanDervort recommended the dismissal of
Sherry Kanode as she was not a “state actor” for purposes of
According to plaintiff, Sherry Kanode should be
treated as a state actor because she was “a paid informant
working for the West Virginia State Police.”
Objections at 5.
Even if Sherry Kanode were deemed to be a state actor,
she is entitled to absolute immunity for any testimony that she
gave as a witness in a judicial proceeding.
See Briscoe v.
LaHue, 460 U.S. 325, 326 (1983) (witnesses in judicial
proceedings receive “absolute immunity from damages liability
under § 1983 based on their testimony”).
doctrine enunciated in Briscoe v. Lahue also shields from
liability alleged conspiracies to give false and incomplete
testimony in judicial proceedings.”
Alioto v. City of Shively,
Kentucky, 835 F.2d 1173, 1174 (6th Cir. 1987).
For this reason,
plaintiff’s claims against Sherry Kanode based on her allegedly
perjured testimony, should be dismissed.2
objection is OVERRULED.
Objection No. 7: Domestic Relations Exception
Magistrate Judge VanDervort found that the “domestic
relations exception” to federal jurisdiction applied to
plaintiff’s claims regarding his child custody and divorce
According to Magistrate Judge VanDervort, plaintiff
is actually asking this court to invalidate the state court’s
orders, under the guise of a due process claim.
objects to this finding, arguing that he is merely asking for an
award of damages in relationship to defendants’ undertakings with
respect to the child custody and divorce proceedings.
The domestic relations exception does not undermine
federal question jurisdiction where it otherwise exists.
v. Wake County Human Services, No. 12-1045, 2012 WL 1564161, *1
(4th Cir. May 4, 2012).
“The exception is statutory, not
constitutional, in nature, and derives from construction of the
diversity jurisdiction statute.”
Therefore, the domestic
As discussed above, plaintiff’s claims against Sherry
Kanode for her involvement in his alleged false arrest and
imprisonment are barred by the statute of limitations.
relations exception “is applied only as a judicially implied
limitation on the diversity jurisdiction; it has not generally
recognized application as a limitation on federal question
United States v. Johnson, 114 F.3d 476, 481 (4th
Jurisdiction in this case is founded on federal
question, i.e., 42 U.S.C. § 1983.
Because diversity of
citizenship does not exist, the domestic relations exception is
See Reale, 2012 WL 1564161 at *1 (holding that
because complaint brought pursuant to 42 U.S.C. § 1983 was “based
on federal question jurisdiction, not diversity of citizenship,
the domestic relations exception does not limit the district
court’s jurisdiction over it.”).
objection is SUSTAINED.
Objection No. 8: Application of Rooker-Feldman
In the PF&R, Magistrate Judge VanDervort noted that
plaintiff was “essentially asking this Court to review and reject
the findings of the Circuit Court and Family Court of Mercer
County. . . [by alleging] (1) Judge Swope improperly took his
property during a forfeiture hearing (Case No. 07-C-141);
(2) Judges Griffith and Bisaha improperly placed his child in the
custody of Sherry Kanode; [and] (3) Judges Griffith and Bisaha
improperly awarded property to Sherry Kanode during divorce
PF&R at pp. 15-16.
Noting that the Rooker-Feldman
doctrine barred this court’s consideration of those decisions,
Magistrate Judge VanDervort recommended the dismissal of those
In his objections, Kanode argues that the Rooker-Feldman
doctrine does not apply because he was never given a hearing in
the state court proceedings or issued “more than a scant
Objections at 7.
As our appeals court has noted:
The Rooker- Feldman doctrine bars “cases brought
by state-court losers complaining of injuries
caused by state-court judgments rendered before
the district court proceedings commenced and
inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, ---- - ----,
125 S. Ct. 1517, 1521-22, 161 L. Ed.2d 454
(2005); see Johnson v. De Grandy, 512 U.S. 997,
1005-06, 114 S. Ct. 2647, 129 L. Ed.2d 775 (1994)
(“[A] party losing in state court is barred from
seeking what in substance would be appellate
review of the state judgment in a United States
district court, based on the losing party's claim
that the state judgment itself violates the
loser's federal rights.”); Am. Reliable Ins. Co.
v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).
The doctrine preserves federalism by ensuring
respect for the finality of state court
judgments, and it preserves the separation of
powers by ensuring that federal district courts
exercise only original jurisdiction and that review of state
court judgments is conducted only by the United States Supreme
Court, as Congress has instructed. See Brown & Root, Inc. v.
Breckenridge, 211 F.3d 194, 198-99 (4th Cir. 2000).
Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005).
According to the Supreme Court, the doctrine applies if the
following conditions are met: “(1) the federal court plaintiff
lost in state court; (2) the plaintiff complains of `injuries
caused by state-court judgments;’ (3) the state court judgment
became final before the proceedings in federal court commenced;
and (4) the federal plaintiff `invit[es] district court review
and rejection of those judgments.’”
Willner v. Frey, No. 06-
1432, 2007 WL 2227816, *2 (4th Cir. Aug. 3, 2007) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
Based on the foregoing, it is clear that this court lacks
subject matter jurisdiction under the Rooker-Feldman doctrine to
the extent that plaintiff is asking this court to review issues
already decided by the state courts.
objection is OVERRULED.
Objection No. 9: Judicial Immunity
Magistrate Judge VanDervort recommended that defendants
Swope, Griffith, and Bisaha be dismissed from the lawsuit(s)
because the claims against them are barred by the doctrine of
Kanode objects to the dismissal of these
defendants arguing that “[i]t is clear from the factual
allegations raised in the plaintiff’s complaint that the
defendants Swope, Griffin [sic], and Bisaha were acting outside
the scope of their offices when they violated the plaintiff’s
Objections at p. 7.
“Few doctrines were more solidly established at common
law than the immunity of judges from liability for damages for
acts committed within their judicial jurisdiction.”
Ray, 386 U.S. 547, 553-54 (1967).
Judicial immunity applies even
where a “judge is accused of acting maliciously and corruptly,
and it is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose interest
it is that the judge’s should be at liberty to exercise their
functions with independence and without fear of consequences.”
Mireles v. Waco, 502 U.S. 9, 12-13 (1991).
Only when a judge has
acted in “clear absence of all jurisdiction” does judicial
immunity not attach to a judge’s actions.
Stump v. Sparkman, 435
U.S. 349, 356-57 (1978).
In determining whether a judge’s action is a judicial one
for purposes of immunity, a court is to consider “the nature of
the act itself, i.e., whether it is a function normally performed
by a judge, and [ ] the expectations of the parties, i.e.,
whether they dealt with the judge in his official capacity.”
Significantly, “a judge’s immunity is not pierced by
allegations that he conspired with others to do an allegedly
unlawful act so long as the act is within his judicial powers.”
Plotzker v. Lamberth, Civil No. 3:08cv00027, 2008 WL 4706255, *4
(W.D. Va. Oct. 22, 2008) (citing Dennis v. Sparks, 449 U.S. 24
Notwithstanding plaintiff’s claims to the contrary, it is
clear that all of the actions taken by Judges Swope, Griffith,
and Bisaha were taken in the course of their official capacities
None of the allegations in plaintiff’s complaints can
be construed as alleging action taken outside of official
capacity nor is there any indication that the judges lacked
jurisdiction to hear the cases of which plaintiff complains.
Accordingly, defendants are absolutely immune from suit and
plaintiff’s objection thereto is OVERRULED.
For the foregoing reasons, the court adopts the Findings
and Recommendations of Magistrate Judge VanDervort, DENIES
plaintiff’s motion to proceed without prepayment of fees,
DISMISSES plaintiff’s complaints and/or petitions for writ of
mandamus, and directs the Clerk to remove these matters from the
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED this 28th day of September, 2012.
David A. Faber
Senior United States District Judge
The petition for a writ of mandamus, filed on February
28, 2012, (doc. No. 14), was filed after Magistrate Judge
VanDervort issued his Proposed Findings & Recommendation.
Accordingly, it is DENIED as moot.
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