Short v. Davis et al

Filing 6

PROPOSED FINDINGS AND RECOMMENDATION recommending that Plaintiff's 1 Application to Proceed without Prepayment of Fees and Costs be denied, and that this action be dismissed with prejudice. This case no longer referred to Magistrate Judge Mary E. Stanley. Objections to Proposed F&R due by 2/4/2011. Signed by Magistrate Judge Mary E. Stanley on 1/18/2011. (cc: plaintiff) (lca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

HARVEY P. SHORT,
Plaintiff,
v.

Case No. 2:10-cv-00785

JUSTICE ROBIN JEAN DAVIS,
JUSTICE BRENT D. BENJAMIN,
JUSTICE LARRY V. STARCHER,
JUSTICE MARGARET WORKMAN,
JUSTICE KETCHUM
BRUCE A. KAYUHA, Chief Counsel,
RORY L. PERRY, II, Clerk,
EDYTHE NASH GAISER, Deputy Clerk, and
JUDGE ROBERT L. HOLLAND, JR.,
Defendants.

PROPOSED FINDINGS AND RECOMMENDATION
This plaintiff, Harvey P. Short, is a former inmate of the
West Virginia Division of Corrections who has been released from
custody.
has filed

He has proved himself to be a relentless litigator who
a

multitude of

precedent or res judicata.

suits

without

regard

to applicable

In this case, filed while he was still

in custody, he complains about various judicial officers who did
not adjudicate his habeas corpus petition as Plaintiff wished.
seeks compensatory damages.

He

(Complaint, docket # 2, at 5.)

Defendants Davis, Benjamin, Starcher, Workman, Ketchum and
Holland are judicial officers who were engaged in their official
duties in connection with Plaintiff’s various efforts to obtain

habeas corpus relief.

It is firmly settled that judges are immune

from liability for damages for acts committed within their judicial
jurisdiction, even when the judge is accused of acting maliciously
and corruptly.

Pierson v. Ray, 386 U.S. 547, 554 (1967).

It is a judge’s duty to decide all cases within his
jurisdiction that are brought before him, including
controversial cases that arouse the most intense feelings
in the litigants. His errors may be corrected on appeal,
but he should not have to fear that unsatisfied litigants
may hound him with litigation charging malice or
corruption.
Imposing such a burden on judges would
contribute not to principled and fearless decisionmaking
but to intimidation.
We do not believe that this settled principle of law
was abolished by § 1983, which makes liable “every
person” who under color of law deprives another person of
his civil rights. The legislative record gives no clear
indication that Congress meant to abolish wholesale all
common-law immunities.
Id.

Due to the clear and unequivocal application of absolute

judicial immunity, this action should be dismissed with prejudice
as to defendants Davis, Benjamin, Starcher, Workman, Ketchum and
Holland.
Plaintiff alleges that defendants Clerk Perry and Deputy Clerk
Gaiser refused to file one of his petitions for appeal and one of
his motions for appointment of counsel.

(# 2, at 4.)

Attached to

his Complaint are various exhibits that establish that Mr. Perry
explained to Mr. Short that Plaintiff had a pending habeas corpus
action in the Circuit Court of Kanawha County, where Plaintiff was
convicted, and that the Circuit Court of Doddridge County, where
Judge Holland sat, did not have habeas corpus jurisdiction over his
2

case.

Id. at 12.

The undersigned has found no allegation

concerning Mr. Kayuha.
The undersigned proposes that the presiding District Judge
FIND that Plaintiff’s complaint fails to state a claim upon which
relief can be granted as to any of the defendants, and is barred by
absolute judicial immunity as to the judicial officers.
It is respectfully RECOMMENDED that Plaintiff’s Application to
Proceed without Prepayment of Fees and Costs (# 1) be denied, and
that this action be dismissed with prejudice.
Plaintiff

is

notified

that

this

Proposed

Findings

and

Recommendation is hereby FILED, and a copy will be submitted to the
Honorable John T. Copenhaver, Jr., United States District Judge.
Pursuant to the provisions of Title 28, United States Code, Section
636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil
Procedure,

Plaintiff

shall

have

fourteen

days

(filing

of

objections) and then three days (service/mailing) from the date of
filing this Proposed Findings and Recommendation within which to
file with the Clerk of this court, specific written objections,
identifying

the

portions

of

the

Proposed

Findings

and

Recommendation to which objection is made, and the basis of such
objection.

Extension of this time period may be granted by the

presiding District Judge for good cause shown.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the district court and a
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waiver of appellate review by the circuit court of appeals. Snyder
v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); Thomas v. Arn,
474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841, 846 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).

Copies

of

such

objections

shall

be

served

on

Judge

Copenhaver.
The Clerk is directed to file this Proposed Findings and
Recommendation and to mail a copy of the same to Plaintiff.

January 18, 2011
Date

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