Bragg v. Sweeney et al

Filing 7

MEMORANDUM OPINION AND ORDER the referral of this matter to the Magistrate Judge is WITHDRAWN; the Plaintiff's 2 Complaint is DISMISSED; denying the 4 Motion for Appointment of Counsel and 5 Motion for Certification of the Class; further denying the 1 Application to Proceed Without Prepayment of Fees and Costs; the filing fee is WAIVED. Signed by Judge Joseph R. Goodwin on 3/13/2018. (cc: plaintiff) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROBERT BRAGG,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-03693

JONATHAN SWEENEY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the court for initial screening pursuant to 28 U.S.C.
§§ 1915A and 1915(e)(2)(B) and consideration of the following motions or other
requests filed by the plaintiff: the Application to Proceed Without Prepayment of Fees
and Costs [ECF No. 1], the Motion for Appointment of Counsel [ECF No. 4], and the
Motion for Certification of the Class [ECF No. 5]. By Standing Order, this matter was
referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge for
submission of proposed findings and a recommendation for disposition, pursuant to
28 U.S.C. § 636(b)(1)(B). For reasons appearing to the Court, it is hereby ORDERED
that the referral of this matter to the Magistrate Judge is WITHDRAWN.
I.

Background
On July 24, 2017, the Clerk’s Office received and docketed a Complaint under

42 U.S.C. § 1983, filed by Robert Bragg, a West Virginia state prisoner who is

presently incarcerated at the Huttonsville Correctional Center in Huttonsville, West
Virginia. Compl. [ECF No. 2]. Bragg’s Complaint states that, on September 21, 2016,
in conjunction with his arrest on controlled substance offenses, officials of the
Nicholas County Sheriff’s Department seized various items of personal property from
his residence in Mt. Nebo, Nicholas County, West Virginia. Id. at 8. The Complaint
further indicates that the Nicholas County officials named as defendants herein
subsequently filed a Petition for Forfeiture in the Circuit Court of Nicholas County
seeking the forfeiture of Bragg’s personal property pursuant to the WVCFA because
such property constituted monies, negotiable instruments, and vehicles as set forth
in the Act. Id. at 8–10. The Petition for Forfeiture is attached to the Complaint as
Exhibit-A. See Pet. Forfeiture [ECF No. 2-2].
Bragg’s Complaint asserts that the defendants “are applying a state law to him
that violates the United States Constitution, and is therefore void and
unenforceable.” Compl. 4. The Complaint contains two “Counts” in which Bragg
claims that the West Virginia Contraband Forfeiture Act (“WVCFA”), W. Va. Code §§
60A-7-701 et seq., violates the Fourth and Fifth Amendments to the United States
Constitution, as applied to the State through the Fourteenth Amendment.
In Count One, Bragg alleges that the WVCFA violates the Fourth
Amendment’s prohibition against unreasonable searches and seizures of property
except by determination of probable cause found by a neutral and detached person.

Id. at 11. The West Virginia Code allows “[a]ny member of the State Police, any
sheriff, any deputy sheriff, any municipal police officer and any campus police officer”

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to “[m]ake seizures of property pursuant to [the Uniform Controlled Substances Act].”
W. Va. Code § 60-A-5-501(a). Under the WVCFA, such persons may seize “property
subject to forfeiture by the provisions of this article . . . without process if: . . . [they
have] probable cause to believe that the property was used or intended for use in
violation of this chapter.” W. Va. Code § 60A-7-704(b)(4). The Complaint alleges that,
because the WVFCA provides that proceeds from forfeited items go to (1) the office of
the prosecuting attorney, and (2) a special law-enforcement investigation fund, W.
Va. Code § 60A-7-706(a), it “allows for persons with an interest in the property to
determine probable cause whether said property is deemed contraband and then seize
the property said person found to be contraband.” Compl. 11.
In Count Two, Bragg asserts that the WVCFA violates the Takings Clause of
the Fifth Amendment, which prohibits the taking of private property for public use
without just compensation. Id. Bragg requests that the court declare the WVCFA void
and unenforceable and order an injunction prohibiting the defendants from acting
pursuant thereto.
As the civil forfeiture proceeding is a matter of public record, I take judicial
notice of the fact that an Order of Settlement was entered in that matter on October
12, 2017. See Order of Settlement, No. 0492, at 8, Civ. Action No. 16-P-55 (Cir. Ct.
Nicholas Cty., W. Va. Oct. 12, 2017). The Order of Settlement indicates that, on
September 19, 2017, Bragg entered a guilty plea to the drug charges in Nicholas
County, pursuant to a written plea agreement, in which he also agreed to the
forfeiture of his seized assets at issue in this case. See id. at 10.

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Bragg has filed (1) a Motion for Certification of Class [ECF No. 5] requesting
that the court certify this matter as a class action under Rule 23(b)(2) on behalf of a
class of all West Virginia persons whose property was seized under the WVCFA; and
(2) a Motion for Appointment of Counsel [ECF No. 4], in which he asserts that this
matter presents exceptional circumstances warranting the court to appoint counsel
to represent him and the putative class.
II. Standards of Review
Pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B), the court is obliged to
screen each case in which a plaintiff seeks to proceed in forma pauperis and must
dismiss the case if the complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted
where a prisoner seeks redress from a governmental entity or officer or employee of
a governmental entity. This screening is done prior to consideration of an Application
to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment
of any filing fee. A “frivolous” case is one that is based on an indisputably meritless
legal theory. Denton v. Hernandez, 504 U.S. 25, 31–32 (1992). A frivolous claim
lacks “an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989).
Pro se complaints are held to less stringent standards than those drafted by
attorneys, and the court is obliged to construe liberally such complaints. However, a
case should be dismissed for failure to state a claim upon which relief can be granted

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if, viewing the well-pleaded factual allegations in the complaint as true and in the
light most favorable to the plaintiff, 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, 570 (2007) While the complaint need not assert “detailed factual
allegations,” it must contain “more than labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.” Id. at 555.
The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal,
556 U.S. 662 (2009), a civil rights case. The Court wrote:
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice. [Twombly, 550 U.S.] at 555 (Although for the
purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we “are not
bound to accept as true a legal conclusion couched as a
factual allegation” (internal quotation marks omitted)).
Rule 8 . . . does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss. Id. at 556. . . . In
keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations. When there are wellpleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give
rise to an entitlement to relief.
556 U.S. at 678–79.

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Additionally, a district court must dismiss a claim if, at any time, it appears
that the court lacks jurisdiction over the subject matter of the claim. Fed. R. Civ. P.
12(h)(3); Duffield v. Mem. Hosp. Ass’n, 361 F. Supp. 398, 400 (S.D. W. Va. 1973), aff’d

sub. nom. Duffield v. Charleston Area Med. Ctr., 503 F.2d 512 (4th Cir. 1974); see
also Bolin v. Chavez, No. 99-1342, 2000 WL 339176, at *2 (10th Cir. Mar. 31, 2000)
(permitting sua sponte dismissal for lack of subject matter jurisdiction under Rule
12(h)(3) of the Federal Rules of Civil Procedure).
III.

Discussion
A.

Subject Matter Jurisdiction

The power of the federal courts to adjudicate claims turns on the existence of
a case or controversy. U.S. CONST. art. III, § 2; DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006). “When a case or controversy ceases to exist because the issue is
no longer live or a party ‘lack[s] a legally cognizable interest in the outcome[,]’
preventing the court from granting effective relief, the claim becomes moot, and the
court lacks the constitutional authority to adjudicate the issue.” Taylor v. Riverside

Reg’l Jail Auth., No. 2:11-cv-456, 2011 WL 6024499, at *4 (E.D. Va. Dec. 2, 2011)
(citing Powell v. McCormack, 395 U.S. 486, 496 (1969); North Carolina v. Rice, 404
U.S. 244, 246 (1971)). If an event occurs before or during litigation that makes it
impossible for the court to grant any effectual relief to the plaintiff, this event moots
the case. Williams v. Ozmint, 716 F.3d 801, 809 (4th Cir. 2013).
The records from the Civil Forfeiture Proceeding make clear that Bragg
entered into a written plea agreement on August 30, 2017. See Order of Settlement,

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No. 0492, at 10, Civ. Action No. 16-P-55. Pursuant to this agreement, Bragg agreed
to “forfeit all items filed in [the civil forfeiture proceeding] to the State of West
Virginia and the Nicholas County Sheriff’s Department.” See id. at 11. By doing so,
Bragg mooted any claim concerning the constitutionality of the seizure thereof under
the WVCFA.
Because Bragg’s individual claim is moot, the court lacks subject matter
jurisdiction to consider Bragg’s claims for relief and his Complaint must be dismissed.
Accordingly, the defendants will not be served with process and will not be required
to appear or defend this matter.
B.

Class Certification and Appointment of Counsel

Because Bragg’s Complaint must be dismissed, his Motion for Appointment of
Counsel [ECF No. 4] and Motion for Certification of Class [ECF No. 5] must be denied.
Bragg seeks to pursue this matter as a class action and requests that the court
certify a class of persons whom he claims are similarly situated and affected by the
application of the WVCFA. See Mot. Certification Class. He has the burden of
establishing each of the requirements for such certification. Thorn v. Jefferson-Pilot

Life Ins. Co., 445 F.3d 311, 321 (4th Cir. 2006). Rule 23(a) of the Federal Rules of
Civil Procedure requires that the prospective class comply with four prerequisites: (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.
Additionally, “the class action must fall within one of the three categories enumerated
in Rule 23(b).” EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014) (citation

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omitted). “Rule 23 contains an implicit threshold requirement that the members of a
proposed class be ‘readily identifiable.’” Id. at 358 (citations omitted).
In light of the finding that Bragg’s individual claim cannot proceed,
certification of a class as requested by Bragg is not appropriate because he cannot
meet the requirements of commonality, typicality, and fair and adequate
representation. Consequently, Bragg has not demonstrated that this matter is
appropriate for class certification under Rule 23.
Bragg correctly recognizes that, even were his claim to survive the preliminary
screening stage, there is no right to appointment of counsel in a civil matter such as
this and that a class action may not be brought by a pro se plaintiff. Mot. Appointment
of Counsel 2 [ECF No. 4]; see Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),

abrogated on other grounds by Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490
U.S. 296 (1989); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). In

Oxendine, the Fourth Circuit stated, “we consider the competence of a layman
representing himself to be clearly too limited to allow him to risk the rights of others.”
509 F.2d at 1407. Additionally, Rule 23 provides that “a court that certifies a class
must appoint class counsel.” Fed. R. Civ. P. 23(g). Thus, Bragg requests that the court
exercise its discretion to appoint an attorney to represent the putative class, with
Bragg serving as the class representative. Mot. Appointment of Counsel 2.
However, as the Fourth Circuit has instructed, courts should “exercise this
power ‘only in exceptional circumstances.’ Whether the circumstances are exceptional
depends on ‘the type and complexity of the case, and the abilities of the individual

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bringing it.’” Lowery v. Bennett, 492 F. App’x 405, 411 (4th Cir. 2012) (quoting

Whisenant, 739 F.2d at 163); Zuniga v. Effler, 474 F. App’x 225, 225 (4th Cir. 2012)
(quoting Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978)) (“Appointment of
counsel is proper ‘if it is apparent to the district court that a pro se litigant has a
colorable claim but lacks the capacity to present it’ or some other exceptional
circumstance is present.”).
In the instant matter, Bragg has not demonstrated a colorable individual claim
or any actionable claim on behalf of the putative class. Consequently, even if Bragg
had stated a claim upon which relief could be granted, appointment of counsel would
not be warranted.
IV.

Conclusion.
For the reasons stated herein, it is hereby ORDERED that Bragg’s Complaint

[ECF No. 2] is DISMISSED and his Motion for Appointment of Counsel [ECF No. 4]
and Motion for Certification of the Class [ECF No. 5] are DENIED. It is further
ORDERED that Bragg’s Application to Proceed Without Prepayment of Fees and
Costs [ECF No. 1] is DENIED, but the filing fee is WAIVED.
The court DIRECTS the Clerk to send a copy of this Order to the plaintiff.
ENTER:

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March 13, 2018