Vance v. West Virginia State Police

Filing 14

MEMORANDUM OPINION AND ORDER: The Court OVERRULES plaintiff's objection to the magistrate judge's 8 PF&R; ADOPTS the factual and legal analysis contained within the PF&R; DENIES Plaintiff's 1 Application to Proceed without Pre payment of Fees or Costs; and DISMISSES Plaintiff's 2 , 3 complaint. The court DIRECTS the clerk to dismiss this matter from the court's docket. Signed by Senior Judge David A. Faber on 7/13/2018. (cc: plaintiff, pro se; counsel of record) (mk)

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

JACK E. VANCE,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-01085

WEST VIRGINIA STATE POLICE
South Charleston, West Virginia
Defendant.
MEMORANDUM OPINION AND ORDER
Before the court is plaintiff’s complaint against the South
Charleston department of the West Virginia State Police
(“WVSP”), alleging their failure to properly investigate and
arrest William Lightner.

ECF Nos. 2, 3.

By Standing Order, the

matter was referred to United States Magistrate Judge Omar J.
Aboulhosn for submission of proposed findings and
recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. §
636(b)(1)(B).

On November 13, 2017, the magistrate judge

submitted his PF&R, in which he recommended that the district
court deny plaintiff’s application to proceed without prepayment
of fees and costs, (ECF No. 1), and dismiss plaintiff’s
complaint, (ECF Nos. 2, 3).

See ECF No. 8.

In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days,
in which to file any objections to Magistrate Judge Aboulhosn’s

Findings and Recommendation.

The failure to file such

objections constitutes a waiver of the right to a de novo review
by this court.
1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir.

Moreover, this court need not conduct a de novo review

when a party “makes general and conclusory objections that do
not direct the court to a specific error in the magistrate's
proposed findings and recommendations.”

Orpiano v. Johnson, 687

F.2d 44, 47 (4th Cir. 1982).
On December 8, 2017, the court granted plaintiff's motion
for an extension of time to file objections, giving him until
December 27, 2017 to do so.

ECF No. 11.

defendant filed his objections.

On December 26, 2017,

ECF No. 12.

Because

plaintiff’s objections are without merit, the court adopts the
findings of the magistrate judge and dismisses plaintiff’s
complaint.
I.

BACKGROUND

In April 2005, Jack Vance was charged with Second Degree
Sexual Assault and Third Degree Sexual Assault.

Vance was

released on bond pending the grand jury proceedings.

A grand

jury in Pocahontas County, West Virginia returned an indictment
charging Vance with 87 counts of Third Degree Sexual Assault and
two counts of Second Degree Sexual Assault.

Vance then

“absconded” with the alleged victim to Virginia.

See Vance v.

W. Virginia State Police Pocahontas Cty. Detachment, No. CV

1:16-10725, 2017 WL 8048339, at *1 (S.D.W. Va. Nov. 13, 2017),
report and recommendation adopted, No. CV 1:16-10725, 2018 WL
1129372 (“Pocahontas Action”).

On September 2, 2005, bail

bondsman, William Lightner located plaintiff in a hotel in
Harrisonburg, Virginia and returned him to West Virginia where
he was detained at Tygart Valley Regional Jail.

ECF No. 12 at

pp. 1-2.
As to the pending state charges, Vance pled guilty to five
counts of Third Degree Sexual Assault and was sentenced to an
indeterminate term of one to five years on each count to run
consecutively.

Moreover, by fleeing across state lines with his

victim, Vance was federally indicted in the Northern District of
West Virginia of (1) traveling in interstate commerce to engage
in a sexual act with a juvenile in violation of 18 U.S.C. §
2423(b) (Count One), and (2) transporting a minor in interstate
commerce with intent to engage in sexual activity in violation
of 18 U.S.C. § 2423(a) (Count Two).

Vance pled guilty to both

counts and was sentenced to two concurrent 87-month terms of
imprisonment.

See Pocahontas Action, at *2.

Plaintiff’s complaint argues that the WVSP violated
plaintiff’s due process rights by failing to arrest Lightner.
Lightner allegedly retrieved Vance from Virginia without
licensure “to do Bail Bondman or Bounty Hunting” within the
Commonwealth.

ECF No. 2 at p.3.

As a result, Vance claims that

he was unlawfully kidnapped by Lightner when he was retrieved in
Virginia and returned to West Virginia.

Id.

After becoming aware of Lightner’s lack of licensure in
February 2016--more than a decade after his arrest and state
conviction--Vance attempted to convey this information to WVSP
State Trooper, Colonel Smithers by mail and through telephone
calls made by his mother.

ECF No. 2 at p.3.

These

communications requested that Smithers arrest Lightner for
kidnapping him.
action.

Vance alleges Smithers failed to take any

As relief for failing to investigate Vance’s kidnapping

complaint and failure to arrest Lighter, Vance seeks monetary
damages from the WVSP in the amount of $2,000,000.

ECF No. 3 at

pp. 4-5, 8-10.
II.

THE PF&R RECOMMENDED DISMISSAL FOR FAILURE TO STATE A CLAIM
Even assuming the WSVP failed to take action regarding

plaintiff’s kidnapping allegations, the magistrate judge
recommended dismissal due to plaintiff’s failure to state a
claim.

First, plaintiff did not allege a basis for federal

jurisdiction under either diversity or federal subject matter
jurisdiction.

ECF No. 8 at pp. 4-6.

Second, the magistrate

judge determined that the complaint fails to comply with the
pleading standard of Federal Rule of Procedure 8(a)(2).
pp. 6-7.

Id. at

III. PLAINTIFF’S OBJECTIONS
Plaintiff extends his contentions against the WVSP
indicating that Smithers, through his secretary, affirmatively
told plaintiff’s mother that Lightner had not broken any laws
and that he has “order[ed] his State Troopers” not to arrest
Lightner.

ECF No. 12 at p.1.

Plaintiff also alleges a broader

conspiracy where “the W.Va State Police Colonials has [sic]
ordered their State Troopers” to cover up Lightner’s kidnapping.
ECF No. 14 at p.4. 1
IV.

ANALYSIS

As noted in the magistrate judge’s PF&R, pursuant to 28
U.S.C. § 1915A, a suit by a prisoner against a governmental
entity or its employee must be screened and dismissed if it is
frivolous, malicious, fails to state a claim upon which relief
may be granted, or if it seeks monetary relief from a defendant
who is immune from such relief.

A case is “frivolous” for

purposes of § 1915A if it is based upon an indisputably

1

Plaintiff’s objection concludes by alleging that WVSP Trooper
W.A. Pendleton threatened Linda and Mark Walton, Michael and
Crystal Vance, and Sarah Mullenax on September 2, 2005. ECF No.
14 at p.7. This allegation is clearly malicious and has no
connection to plaintiff’s complaint. Moreover, plaintiff has
already filed two actions, which allege improper conduct by
Trooper Pendleton. See Vance v. Pocahontas Sheriff Dep't, No.
CV 1:16-10730, 2017 WL 8816928, at *3 (S.D.W. Va. Nov. 13,
2017), report and recommendation adopted, No. CV 1:16-10730,
2018 WL 1866109 (S.D.W. Va. Apr. 18, 2018); see also Pocahontas
Action, at *2-3.

meritless legal theory.
(1992).

Denton v. Hernandez, 504 U.S. 25, 112

Stated differently, such a claim lacks “an arguable

basis either in law or in fact.”

Neitzke v. Williams, 490 U.S.

319, 325 (1989).
While now asserting a broader conspiracy of intentional
inaction by the WVSP, plaintiff’s objections neglect to address
the grounds on which the magistrate judge recommended dismissal.
His objections are therefore irrelevant and unresponsive to the
reasoning contained in the PF&R, and must be overruled on that
ground, as they do not “direct the court to a specific error in
the magistrate's proposed findings and recommendations.”
Orpiano, 687 F.2d at 47.

Moreover, even viewing the factual

allegations in the complaint and narrative as true and in the
light most favorable to the plaintiff, (ECF No. 2 at pp. 1, 3;
ECF No. 3 at pp. 4, 8), the complaint does not contain “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
Therefore, the court agrees with the magistrate judge that
plaintiff’s complaint lacks any justiciable basis under federal
law, is patently frivolous, and fails to state a claim upon
which relief can be granted by this court.
V.

CONCLUSION

Accordingly, the court OVERRULES plaintiff’s objection to
the magistrate judge’s PF&R.

The court ADOPTS the factual and

legal analysis contained within the PF&R, DENIES plaintiff’s
application to proceed without prepayment of fees and costs,
(ECF No. 1); and DISMISSES plaintiff’s complaint (ECF Nos. 2,
3).

The court DIRECTS the clerk to dismiss this matter from the

court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and plaintiff,
pro se.
It is SO ORDERED this 13th day of July, 2018.
ENTER:
David A. Faber
Senior United States District Judge