Bowers v. Perry et al
MEMORANDUM OPINION AND ORDER adopting the 56 Proposed Findings and Recommendations of the Magistrate Judge; granting the West Virginia defendants' 34 Motion to Dismiss; granting the Maryland defendants' 36 Motion to Dismiss; and denying the plaintiff's 46 Motion for Correction and Renewed Demand as moot; directing that judgment be entered in favor of the defendants and that this case by DISMISSED with prejudice and stricken from the docket of this Court. Signed by Judge Joseph R. Goodwin on 9/28/2015. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:14-cv-27242
RORY PERRY, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court are (1) a Motion to Dismiss filed by West Virginia defendants
Rory Perry, Robin Davis, Brent Benjamin, Margaret Workman, Menis Ketchum, Allen Loughry,
and the State of West Virginia [ECF No. 34]; (2) a Motion to Dismiss or, in the Alternative, Motion
for Summary Judgment filed by Maryland defendants Peter Krauser, Alexander Wright, Albert
Mastricciani, Charles Moylan, Lawrence Rodowsky, Robert Bell, Mary Ellen Barbera, Glenn
Harrell, Lynne Battaglia, Clayton Greene, Sally Adkins, Robert McDonald, Shirley Watts,
Kathleen Cox, Gregory Hilton, and the State of Maryland [ECF No. 36]; and (3) plaintiff Doran
Bowers’ Motion for Correction and Renewed Demand [ECF No. 46].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and a Standing Order [ECF No. 2], this civil action,
including the motions cited above, was referred to the Honorable Dwane L. Tinsley, United States
Magistrate Judge, for the submission of proposed findings of fact and recommendations for
disposition. On August 31, 2014, Judge Tinsley recommended that the court grant defendants’
motions to dismiss. Proposed Findings & Recommendation (“PF&R”)13–14 [ECF No. 56].
Plaintiff responded to the PF&R on September 11, 2015. Pl.’s Resp. [ECF No. 57].
For the reasons set forth below, I ADOPT the Proposed Findings and Recommendations
of the Magistrate Judge, GRANT West Virginia defendants’ Motion to Dismiss, GRANT
Maryland defendants’ Motion to Dismiss, and consequently DENY plaintiff’s Motion for
Correction and Renewed Demand as moot.
When specific objections are made to a PF&R, the court reviews the specified portions or
findings de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Objections that are too
general or conclusory to focus attention on any specific error do not trigger de novo review. Lester
v. Ballard, No. 2:10-cv-00819, 2011 WL 183376, at *5 (S.D. W. Va. Jan. 20, 2011); Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Nor is a de novo review required when “objections to
strictly legal issues are raised and no factual issues are challenged.” Orpiano, 687 F.2d at 47.
“When reviewing portions of the PF&R de novo, the [c]ourt will consider the fact that Plaintiffs
are acting pro se, and their pleadings will be accorded liberal construction.” Dement v. Summers
Cty. Courthouse, No. 5:13-cv-08899, 2015 WL 461560, at *2 (S.D. W. Va. Feb. 3, 2015) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.
The PF&R thoroughly laid out six grounds on which the defendants’ motions to dismiss
should be granted:
(1) failure to state a claim; (2) lack of subject matter jurisdiction; (3)
application of the Rooker-Feldman doctrine; (4) lack of personal jurisdiction; (5) Eleventh
Amendment immunity; and (6) absolute immunity. The plaintiff objects to “all parts of the
document” and addresses each of these grounds in varying degrees of specificity. Pl.’s Resp. ¶ 1.
Many of the plaintiff’s sixteen pages of assertions are conclusory, make baseless legal arguments,
or merely attack the style in which the PF&R is written. Nevertheless, due to the disjointed nature
of plaintiff’s response, this court has made a de novo review of the entire PF&R and finds the
objections without merit.
Plaintiff Doran Bowers is a pro se litigant who has failed to get the outcome he seeks from
the Maryland or West Virginia state courts, and has now turned to this federal court. In his
Amended Complaint [ECF No. 6], the plaintiff named judicial officials from the Maryland Court
of Appeals and the Maryland Court of Special Appeals, as well as the State of Maryland in relation
to the plaintiff’s experience appealing a decision of that state’s probate court. The plaintiff also
named judicial officials from the West Virginia Supreme Court of Appeals and the State of West
Virginia relating to his unsuccessful attempt to appeal the decisions of the Maryland state courts
in West Virginia. The complaint now before this federal court must be dismissed on grounds rooted
in this court’s lack of jurisdiction to hear plaintiff’s grievances.
A. Maryland Defendants
Most fundamentally, plaintiff’s complaint against the Maryland defendants fails for lack
of personal jurisdiction. See CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285,
292 (4th Cir. 2009) (identifying two requirements that must be met in order for a district court to
exercise personal jurisdiction over a defendant—“the forum state’s long-arm statute must
authorize the exercise of such personal jurisdiction,” and if that authorization exists, “the Due
Process Clause of the Fourteenth Amendment requires that the defendant have sufficient minimum
contacts with the forum state.”); see also Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d
273, 276 (4th Cir. 2009) (“the plaintiff bears the burden of making a prima facie showing of a
sufficient jurisdictional basis to survive the jurisdictional challenge”). The events giving rise to
plaintiff’s initial litigation in Maryland’s Orphans’ Court and subsequent conduct by Maryland
judicial officials occurred in Maryland. See Pl.’s Am. Compl. ¶ 7–17. The plaintiff has not
provided sufficient evidence to show how the Southern District of West Virginia has jurisdiction
over the Maryland defendants. The PF&R addresses this fully, and plaintiff’s objections merely
refer the court to arguments made in earlier filings. PF&R 9–10; Pl.’s Resp. ¶ 16.
Additionally, the plaintiff’s claim is barred under the Rooker-Feldman doctrine, as he is
essentially seeking federal review of the Maryland state courts’ decisions on a probate matter. The
Rooker-Feldman doctrine bars federal district courts from reviewing “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, 284 (2005). Plaintiff states that he
made no less than seven filings with Maryland’s highest court, the Maryland Court of Appeals,
and that court declined to reverse the orders of its lower courts. Pl’s Am. Compl. ¶ 13. The PF&R
clearly explains this ground for dismissal, and the plaintiff’s response that his action is
“continuing” and not subject to Rooker-Feldman is without merit. PF&R 9; Pl.’s Resp, ¶¶ 14–15.
B. West Virginia Defendants
Turning to the West Virginia defendants, the Eleventh Amendment bars the plaintiff’s
claims against the State of West Virginia, as well as the Clerk and Justices of the Supreme Court
of Appeals of West Virginia. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
Plaintiff’s objection to the PF&R’s findings on this ground—stating the wording of the Eleventh
Amendment is “quite clear” and is restricted to “citizens of another state”—is again without merit
and reflects a misunderstanding of Eleventh Amendment immunity. PF&R 11; Pl.’s Resp. ¶¶ 17,
Moreover, the judges are afforded absolute judicial immunity for actions taken in exercise
of their judicial functions, as discussed in the PF&R, 12–13. See Stump v. Sparkman, 435 U.S. 349
(1978). Similarly, as recommended in the PF&R, the clerk is afforded immunity from these claims.
The clerk’s immunity is derived from absolute judicial immunity for actions taken in discharge of
his lawful duties or at the court’s direction. See McCray v. Maryland, 456 F.2d 1, 4 (4th Cir. 1972)
(distinguishing a situation in which a court clerk is in neglect or violation of his duties, from that
where the actions complained of “were taken in the discharge of his lawful duties as court clerk”).
Plaintiff objects to the PF&R’s finding as to the clerk, saying the evidence indicates the clerk was
acting “on his own (non-existent) authority” when he issued an order declining plaintiff’s petition
for prohibition and returned plaintiff’s $200 filing fee. Pl.’s Resp. ¶¶ 21, 41.
But plaintiff provides no more than conclusory statements to indicate the clerk was not
acting at the direction of the court, and cites only the absence “of any affidavit or claim of
responsibility” by the clerk’s “superior justices.” Pl.’s Resp. ¶ 21. In his Amended Complaint,
plaintiff calls the clerk’s order “spurious” because it was “signed only by himself and not listed on
the list of orders of the court.” Pl.’s Am. Compl. ¶ 2; see also Pl’s Resp. Defs.’ Mot. to Dismiss ¶
8 [ECF No. 48]. Taken as true, these allegations do not support an inference that the clerk was
acting without the authority of the court.
To the contrary, the initial order to which the plaintiff referred, Pl.’s Am. Compl. ¶ 2, shows
plaintiff’s petition was assigned pre-petition number 13-049; states that “the Court hereby refuses
petitioner’s motion;” bears what appears to be the seal of the West Virginia Supreme Court of
Appeals; and is attested to by Rory L. Perry II, Clerk of Court. See Defs.’ Mot. Dismiss Ex. 4 [ECF
No. 34-1]; see also Pl.’s Resp. to Defs.’s Mot. to Dismiss ¶ 8 [ECF No. 48] (referencing
defendants’ exhibit when discussing the order). Additionally, the plaintiff acknowledged that a
justice replied to the plaintiff’s letters and “supported [the clerk] on the grounds of jurisdiction.”
Pl.’s Am. Compl. ¶ 5; see also Defs.’ Mot. Dismiss Exs. 7, 9 [ECF No. 34-1] (showing copies of
two letters from Justice Menis Ketchum to the plaintiff, referencing the pre-petition number, and
indicating the court does not have jurisdiction to review the decision of a Maryland court). These
facts indicate the clerk was acting at the direction of the court in the normal course of his duties as
clerk, and is thus entitled to immunity from this suit.
These grounds are more than sufficient to dismiss the amended complaint against all
defendants, making it unnecessary to reach the discussion of subject matter jurisdiction and the
sufficiency of Plaintiff’s pleadings.
Upon de novo review, the court agrees with the Magistrate Judge’s thorough analysis of
these issues. Accordingly, the court ADOPTS the Proposed Findings and Recommendations of
the Magistrate [ECF No. 56]; GRANTS the West Virginia defendants’ Motion to Dismiss [ECF
No. 34]; GRANTS the Maryland defendants’ Motion to Dismiss, or in the Alternative, Motion to
Stay [ECF No. 36]; and DENIES the plaintiff’s Motion for Correction and Renewed Demand
[ECF No. 46] as moot. The court ORDERS that judgment be entered in favor of the defendants
and that this case by DISMISSED with prejudice and stricken from the docket of this Court.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
September 28, 2015
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