White v. Old Republic National Title Insurance et al

Filing 36

MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's 31 and 35 Objections to Magistrate Judge R. Clarke VanDervort's Proposed Findings and Recommendation; ADOPTS the 28 Proposed Findings and Recommendation of Magistrate Judge VanDervort; DENIES Plaintiff's 5 APPLICATION to Proceed Without Prepayment of Fees and Costs; DISMISSES Plaintiff's 27 Second Amended Complaint; DENIES Plaintiff's request for leave to amend the Second Amended Complaint and DISMISSES this matter from the Court's active docket. Signed by Senior Judge David A. Faber on 3/12/2015. (cc: Plaintiff, Pro Se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

KENNETH A. WHITE,
Plaintiff,
v.

Civil Action No: 1:12-07965

OLD REPUBLIC NATIONAL
TITLE INSURANCE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s application to
proceed without prepayment of fees or costs.

(Doc. No. 5).

By

Standing Order, this matter was referred to United States
Magistrate Judge R. Clarke VanDervort for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

(Doc. No. 2).

The magistrate judge

submitted his proposed findings and recommendations (“PF&R”) on
January 14, 2015.

(Doc. No. 29).

In the PF&R, Magistrate Judge

VanDervort recommended that the court deny plaintiff’s
application to proceed without prepayment of fees or costs and
dismiss plaintiff’s complaint, amended complaint, and second
amended complaint.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days,
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in which to file any objections to the PF&R.

Plaintiff timely

filed objections to the PF&R on January 29, 2015.
31).

(Doc. No.

Because plaintiff’s objections are without merit, the

court dismisses his second amended complaint 1 and denies his
application to proceed without prepayment of fees or costs.
(Doc. Nos. 5, 27).
I.

Background
On February 10, 2012, plaintiff was convicted of one count

of conspiracy to commit bank fraud and wire fraud, in violation
of 18 U.S.C. § 371; four counts of wire fraud affecting a
financial institution, in violation of 18 U.S.C. § 1343; one
count of bank fraud, in violation of 18 U.S.C. § 1344; three
counts of false statements in loan applications, in violation of
18 U.S.C. § 1014; and one count of failure to appear, in
violation of 18 U.S.C. § 3146. 2

United States v. White, Case No.

1:09-cr-17 and Case No. 1:09-cr-442 (N.D. Ohio, Feb. 10, 2012).

1

Plaintiff moved the court for, and was granted, leave to amend
his complaint and amended complaint. (Doc. Nos. 9, 14, 17, 22,
26, 27). Accordingly, the second amended complaint supersedes
his two prior filings. Young v. City of Mt. Ranier, 238 F.3d
567, 572 (4th Cir. 2001) (“As a general rule, an amended
pleading ordinarily supersedes the original and renders it of no
legal effect.”); see also Northrup v. Gills, Civil Action No.
1:14-6079, 2014 WL 4365243, at *1 (S.D.W. Va. Sept. 2, 2014).
2
The government filed two separate indictments against
plaintiff. The district court consolidated these two
indictments into one jury trial. At trial, the jury convicted
plaintiff on all charges of the two indictments. United States
v. White, 543 F. App’x 563, 565 (6th Cir. 2013) (unpublished)
(Stamp, J.).
2

On June 4, 2012, plaintiff was sentenced to a term of one
hundred three (103) months of imprisonment on each of Counts One
through Three in case number 10:09-cr-17 and Counts One through
Six in case number 1:10-cr-442, to be served concurrently.

The

district court further ordered plaintiff to pay restitution in
the following amounts:

$1,039,447.30 to Bank of America,

$959,949.00 to Huntington National Bank, $148,716.02 to Wells
Fargo, and $35,456.15 to Sovereign Bank.

Id.

On November 18, 2013, the United States Court of Appeals
for the Sixth Circuit affirmed plaintiff’s conviction.
543 F. App’x at 572.

White,

Plaintiff petitioned the Supreme Court of

the United States for a writ of certiorari and, on May 27, 2014,
his petition was denied.

White v. United States, 134 S. Ct.

2681 (2014).
In his second amended complaint, plaintiff names a number
of defendants and alleges that those defendants committed fraud
related to the purchase of three parcels of property:

40 Hamlet

Court, 50 Hamlet Court, and 70 Hamlet Court, all located in
Bratenahl, Ohio.

(Doc. No. 27 at 3–20).

Plaintiff was

convicted of knowingly making false statements to various
lending institutions regarding these exact properties.
1:09-cv-00017, Doc. No. 95.

White,

According to plaintiff, defendants

conspired to use him as a “scapegoat” for their misconduct and
plaintiff’s criminal conviction resulted from “the . . .
3

intentional fraudulent acts of . . . Defendants.”
at 17).

(Doc. No. 27

Plaintiff seeks compensatory and punitive damages from

all defendants.
II.

Plaintiff’s Objections to the PF&R

Initially, plaintiff begins his objections by making a
general objection to the factual history outlined in the PF&R.
Plaintiff alleges that the PF&R contains numerous factual errors
and is “clearly and concededly tainted with inaccurate records
wrongly attributed to [plaintiff],” but fails to explain what
these factual inaccuracies are or which records have been
wrongly attributed to him.

(Doc. No. 31 at 2–3).

This argument

“do[es] not direct the court to a specific error in the
magistrate’s proposed findings and recommendations” because such
an objection is “general and conclusory.”
687 F.2d 44, 47 (4th Cir. 1982).

Orpiano v. Johnson,

As a result, a court need not

conduct a de novo review of such an objection.

Id.

Having reviewed the record and plaintiff’s objections in
their entirety, as well as the supplemental material offered by
plaintiff, (Doc. No. 35), the court concludes that his arguments
lack merit.

Primarily, plaintiff objects to the PF&R’s

conclusion that the principles of collateral estoppel and res
judicata bar his claim.

The doctrine of collateral estoppel

“precludes re-litigation of an issue decided previously in
judicial or administrative proceedings provided the party
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against whom the prior decision was asserted enjoyed a full and
fair opportunity to litigate that issue in an earlier
proceeding.” Allen v. McCurry, 449 U.S. 90, 96 (1980).
Furthermore, “[t]he doctrine of collateral estoppel may apply to
issues litigated in a criminal case which a party seeks to relitigate in a subsequent civil proceeding.” U.S. v. Wright, 839
F.2d 193, 196 (4th Cir.1987) (internal citations omitted).
In order for collateral estoppel to apply, the Fourth
Circuit has outlined the following factors that must be
satisfied:
(1) the issue sought to be precluded is identical to
one previously litigated; (2) the issue must have been
actually determined in the prior proceeding; (3)
determination of the issue must have been a critical
and necessary part of the decision in the prior
proceeding; (4) the prior judgment must be final and
valid; and (5) the party against whom estoppel is
asserted must have had a full and fair opportunity to
litigate the issue in the previous forum.
Ramsay v. United States Immigration & Naturalization Serv., 14
F.3d 206, 210 (4th Cir. 1994) (internal citations omitted).

In

the PF&R, Magistrate Judge VanDervort concluded that the above
factors were satisfied in plaintiff’s case and, as a result,
collateral estoppel applied to bar his claims.
Having reviewed plaintiff’s second amended complaint, the
court reaches the same conclusion.

Plaintiff’s second amended

complaint attempts to re-litigate issues of culpability
surrounding three properties at the core of plaintiff’s criminal
5

convictions:
Court.

40 Hamlet Court, 50 Hamlet Court, and 70 Hamlet

Second, in plaintiff’s second amended complaint, he

argues that defendants are in fact guilty of the crimes of which
he himself was convicted, and that his conviction resulted
solely because of defendants’ wrongdoing, not his own.

These

are the very issues that were litigated and resolved at
plaintiff’s criminal trial.

Furthermore, the resolution of

these issues was a critical and necessary part of the criminal
proceeding.

The prior judgment is final and valid, having been

affirmed by the Sixth Circuit and a writ of certiorari denied by
the Supreme Court of the United States, and plaintiff received a
full and fair opportunity to litigate these issues in the
previous forum.

As this court has held previously, “[t]here is

no open window here through which [plaintiff] can re-litigate
those issues.”

White v. Wells Fargo Bank, Civil Action No.

1:13-cv-24248, 2014 WL 3882181, at *11 (S.D.W. Va. Aug. 7,
2014).
Furthermore, the court overrules plaintiff’s objection that
res judicata does not bar his claim.

Under the principle of res

judicata, “a final judgment on the merits bars further claims by
parties or their privies based on the same cause of action.”
Young-Henderson v. Spartanburg Area Mental Health Ctr., 945 F.2d
770, 773 (4th Cir. 1991) (quoting Montana v. United States, 440
U.S. 147, 153 (1979)).

As described above, plaintiff’s criminal
6

case reached a final judgment on the merits.

Therefore, the

court concurs with the PF&R’s conclusion that res judicata bars
plaintiff’s claims.
Additionally, the court finds no basis for plaintiff’s
objection that Magistrate Judge VanDervort’s “actions appear to
be highly prejudicial.”

(Doc. No. 31 at 5).

The court notes

that plaintiff’s motion for recusal of Magistrate Judge
VanDervort was denied, (Doc. No. 30), and plaintiff has offered
no evidence in support of his renewed assertions.

Accordingly,

the court finds no error in Magistrate Judge VanDervort’s
actions or in the analysis proffered in the PF&R.
Finally, in his objections, plaintiff seeks leave to amend
his second amended complaint should the court find it deficient.
(Doc. No. 31 at ¶ 15).

Plaintiff is correct that, where a

complaint may be remedied by an amendment, the district court
must permit a pro se complainant to do so.
504 U.S. 25, 34 (1992).

Denton v. Hernandez,

Nonetheless, a district court may

dismiss a pro se complaint for failure to state a claim where a
court has concluded that, beyond a doubt, “the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.”

Haines v. Kerner, 404 U.S. 519, 521

(1972) (quoting Conley v. Gibson, 355 U.S. 41, 45–6 (1957))
(internal quotation marks omitted).

7

In the instant case, the court finds that, beyond a doubt,
further amendment of plaintiff’s second amended complaint would
be futile.

Having determined that plaintiff’s claims are

precluded by collateral estoppel, there are no set of facts
which he could allege that would entitle him to relief.

As a

result, plaintiff’s request for leave to amend his second
amended complaint is DENIED.
III. Conclusion
Accordingly, the court OVERRULES plaintiff’s objections to
Magistrate Judge VanDervort’s PF&R.

(Doc. Nos. 31, 35).

The

court ADOPTS the factual and legal analysis contained within the
PF&R, DENIES plaintiff’s application to proceed without
prepayment of fees, (Doc. No. 5), DISMISSES plaintiff’s second
amended complaint, (Doc. No. 27), DENIES plaintiff’s request for
leave to amend the second amended complaint, and DISMISSES this
matter from the court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED on this 12th day of March, 2015.
ENTER:
David A. Faber
Senior United States District Judge

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