Braxton v. Young et al
Filing
53
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATIONS directing plaintiff's objections to the 32 Proposed Findings and Recommendations entered 11/15/2019 are overruled; the magistrate judge's 7 Proposed Findings a nd Recommendations entered 5/01/2019 and 11/15/2019 are adopted and incorporated in full; plaintiff's complaint is dismissed as to defendants Magistrate Leonard Bickford and the West Virginia State Police; the 13 Motion to Dismiss filed b y Fayette County and Fridley is granted, and that these parties are dismissed from this action; the 15 Motion to Dismiss filed by Harrah and Parsons is granted in part inasmuch as Harrah and Parsons are entitled to absolute prosecutorial immuni ty with respect to plaintiff's claims related to the discovery requests and the settlement agreement, and otherwise denied; the 17 Motion to Dismiss filed by Callison is granted in part insofar as Callison is entitled to qualified immunity w ith respect to his alleged failure to provide a property receipt, and otherwise denied; the 19 Motion to Dismiss filed by Young is granted, and that Young is dismissed from this action; the plaintiff's complaint is dismissed as to the defend ants identified herein in paragraph #8 and directing that these parties are dismissed from this action; further directing that this case is again referred to United States Magistrate Judge Dwane L. Tinsley for additional proceedings as to defendants Harrah, Parsons, and Callison. Signed by Senior District Judge John T. Copenhaver, Jr. on 3/27/2020. (cc: counsel of record; any unrepresented parties; United States Magistrate Judge) (ts)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ANTHONY JAMES BRAXTON,
Plaintiff,
v.
Civil Action No. 2:18-cv-00585
DETECTIVE C.A. YOUNG, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are motions to dismiss filed June 12, 2019 by
defendants Fayette County Commission (“Fayette County”) and
Fayette County Sherriff Mike Fridley (“Fridley”) (ECF No. 13),
Larry E. Harrah (“Harrah”) and Brian D. Parsons (“Parsons”) (ECF
No. 15), W.R. Callison (“Callison”) (ECF No. 17), and C.A. Young
(“Young”) (ECF No. 19).
Background
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On May 1, 2019, the magistrate judge entered his PF&R
recommending that the court dismiss plaintiff’s complaint as to
defendants Magistrate Leonard Bickford and the West Virginia
State Police for failure to state a claim upon which relief can
be granted.
See ECF No. 7.
Neither party has objected to this
PF&R.
On November 15, 2019, the magistrate judge entered a
second PF&R recommending that the court grant the motion to
dismiss filed by Fayette County and Fridley, grant in part and
deny in part the motion to dismiss filed by Harrah and Parsons,
grant in part and deny in part the motion to dismiss filed by
Callison, grant the motion to dismiss filed by Young, and
dismiss plaintiff’s complaint as to defendants Central West
Virginia Drug Task Force Corporation (“CWVDTFC”); Oak Hill City
Police Department; Fayetteville City Police Department; City of
Oak Hill, West Virginia; City of Fayetteville, West Virginia;
Mount Hope City Police Department; City of Mount Hope; Ansted
City Police Department; City of Ansted; Gauley Bridge City
Police Department; City of Gauley Bridge; Nicholas County
Commission; Nicholas County Sheriff Department; Summersville
City Police Department; City of Summersville, West Virginia;
Richwood City Police Department; City of Richwood; Clay County
Commission; Clay County Sheriff Department; Webster County
Commission; Webster County Sheriff Department; City of Webster
Spring, West Virginia; Webster Spring City Police Department;
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City of Cowen, West Virginia; Pocahontas County Commission;
Pocahontas County Sheriff Department; Marlinton City Police
Department; City of Marlinton, West Virginia; and the estate of
Steve Kessler (“Kessler”).
See ECF No. 32.
On December 2, 2019, plaintiff filed objections
regarding Fridley, Harrah and Parsons, Callison, CWVDTFC (and
all of its named defendant members), Young, and Kessler.
On
December 5, 2019, Callison, Harrah and Parsons, Fridley, and
Young all filed responses opposing plaintiff’s objections.
Discussion
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”
Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Rules 6(d) and 72(b) of the Federal Rules of Civil
Procedure, plaintiff had 17 days from the date of filing the
PF&R within which to file with the Clerk of this Court specific
written objections that identify the portions of the PF&R to
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which objection is made and the basis of such objection.
The 17
days included 14 days for the filing of objections and an
additional three days for service and mailing.
at 24–25.
See ECF No. 32
Therefore, the filing deadline was December 2, 2019.
Insofar as Young argues that plaintiff’s objections are timebarred, see ECF No. 51 at 2–3, the court deems the objections
timely filed.
A. Fayette County and Fridley
The magistrate judge found that plaintiff failed to
state a claim against Fayette County and Fridley because
plaintiff “alleges no facts about them at all,” let alone a
policy or custom that led to the deprivation of his
constitutional rights or “that Fridley was personally involved
in the events detailed in the complaint or otherwise directed
them so as to render him the source of any such policy or
custom.”
ECF No. 32 at 12–13.
Plaintiff filed objections
regarding Fridley in which plaintiff adds allegations as to show
Fridley’s role in conspiring to target plaintiff.
See ECF
No. 35.
However, the complaint itself does not contain any of
these allegations or any facts to support plaintiff’s claims
against Fridley.
The court cannot consider these new
allegations in evaluating the motion to dismiss as it is
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“axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.”
See Katz v. Odin,
Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 917 n.9 (E.D.
Va. 2004) (quoting Morgan Distrib. Co., Inc. v. Unidynamic
Corp., 868 F.2d 992, 995 (8th Cir. 1989)); Car Carriers v. Ford
Motor Co., 745 F. 2d 1101, 1107 (7th Cir. 1984)
(“[C]onsideration of a motion to dismiss is limited to the
pleadings.”).
Accordingly, plaintiff’s objections as to Fridley
are without merit and no objection is made as to the dismissal
of Fayette County.
B. Harrah and Parsons
Next, plaintiff objects to the magistrate judge’s
finding that Harrah and Parsons are entitled to absolute
prosecutorial immunity with respect to plaintiff’s claims that
they unlawfully prepared and proposed a settlement agreement and
served discovery requests in the litigation plaintiff filed in
Fayette County Circuit Court.
See ECF No. 32 at 15; ECF No. 36.
In his objections to the PF&R, plaintiff provides allegations
regarding the seizure of his property and the events surrounding
the settlement agreement without addressing the concept of
absolute prosecutorial immunity or disputing its application
here.
ECF No. 36.
Accordingly, the court finds that
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plaintiff’s objections as to Harrah and Parsons are without
merit.
C. Callison
The November 15, 2019 PF&R also recommended denying
Callison’s motion to dismiss in part and granting it in part
insofar as Callison is entitled to qualified immunity with
respect to his alleged failure to provide a property receipt on
February 15, 2017 in the execution of a search warrant signed
that same date.
ECF No. 32 at 4, 19–20.
The PF&R found that
“[t]o the extent Callison’s failure to provide a property
receipt to Plaintiff during the execution of the search warrant
constitutes a constitutional violation, Plaintiff’s right to
receive a property receipt was not clearly established on
February 15, 2017.”
Id. at 19.
In his objections regarding
Callison, plaintiff states that he was denied the opportunity to
challenge the constitutionality of Callison’s actions of
February 15, 2017 in the state court action, but he does not
address the concept of qualified immunity or dispute its
application here.
See ECF No. 37.
Inasmuch as plaintiff does
not state any specific objections to the PF&R’s findings, this
objection is denied.
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D. CWVDTFC and All of Its Named Defendant Members
Regarding CWVDTFC and all of its named defendant
members, plaintiff filed objections alleging that he can show
through discovery that the property seized by Young on April 18,
2016 and Callison on February 15, 2017 was placed into CWVDTFC’s
bank account to the benefit of its members named in this suit.
See ECF No. 38.
Plaintiff argues that CWVDTFC “is liable
because they knew at the briefings before the execution of the
[April 18, 2016 and February 15, 2017] search warrant[s]” that
the officers had no evidence.
Id.
However, plaintiff does not
address the magistrate judge’s finding that the complaint lacks
any allegations about the actions of CWVDTFC and its named
defendant members.
See ECF No. 32 at 22–23.
Inasmuch as
plaintiff’s newly added allegations cannot save the complaint,
these claims warrant dismissal as to CWVDTFC and all of its
named members.
E. Young
Regarding Young’s motion to dismiss, the magistrate
judge found that plaintiff’s constitutional challenges to the
April 18, 2016 search warrant and execution that resulted in
Young’s alleged seizure of $4,400 from plaintiff are barred by
res judicata because plaintiff could have, but did not, raise
these claims in the proceeding filed in state court under West
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Virginia Rule of Criminal Procedure 41(e).
See ECF No. 32 at
21–22 (citing Dan Ryan Builders, Inc. v. Crystal Ridge Dev.,
Inc., 803 S.E.2d 519, 530 (W. Va. 2017)); Syl. Pt. 1, Pristine
Pre-Owned Auto, Inc. v. Courrier, 783 S.E.2d 585, 586 (W. Va.
2016) (“When a party against whom no criminal charges have been
brought seeks the return of seized property, such person should
file, in the circuit court of the county in which the property
was seized, a complaint seeking the return of such property
under West Virginia Rule of Criminal Procedure 41(e).”).
Plaintiff objects that while it “might be true to most
cases” that Young cannot be named in a subsequent related
lawsuit, plaintiff was denied due process because he “was never
given a hearing to present any or all of the facts in this state
court” action.
ECF No. 39.
The objection as to the lack of a
hearing in the state court action does not address or dispute
the PF&R’s finding of res judicata.
Accordingly, plaintiff’s
objections regarding Young’s motion to dismiss are denied.
F. Kessler
Finally, the magistrate judge found that the § 1983
claims against Kessler’s estate do not survive his death.
ECF No. 32 at 23.
See
Plaintiff does not dispute the applicability
of West Virginia’s wrongful death statute, which provides that a
cause of action “may be revived against the personal
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representative of the wrongdoer and prosecuted to judgment and
execution” if it was brought prior to the wrongdoer’s death.
See W. Va. Code § 55-7-8a(d).
Rather, plaintiff’s objection states that he has a
right to name Kessler in this case because Kessler, as Fayette
County Sheriff, acted to prevent plaintiff from naming Kessler
as a defendant in the state action before his death.
No. 40.
See ECF
Inasmuch as plaintiff did not bring this action until
after Kessler’s death and provides no basis to preclude the
application of the wrongful death statute, the magistrate judge
properly found that plaintiff’s complaint as to Kessler’s estate
must be dismissed for failure to state a claim on which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Conclusion
The court, accordingly, ORDERS as follows:
1. That plaintiff’s objections to the PF&R entered November
15, 2019 be, and they hereby are, overruled.
2. That the magistrate judge’s PF&Rs entered May 1, 2019 and
November 15, 2019 be, and they hereby are, adopted and
incorporated in full.
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3. That plaintiff’s complaint be, and it hereby is, dismissed
as to defendants Magistrate Leonard Bickford and the West
Virginia State Police.
4. That the motion to dismiss filed by Fayette County and
Fridley (ECF No. 13) be, and it hereby is, granted, and
that these parties be, and they hereby are, dismissed from
this action.
5. That the motion to dismiss filed by Harrah and Parsons (ECF
No. 15) be, and it hereby is, granted in part inasmuch as
Harrah and Parsons are entitled to absolute prosecutorial
immunity with respect to plaintiff’s claims related to the
discovery requests and the settlement agreement, and
otherwise denied.
6. That the motion to dismiss filed by Callison (ECF No. 17)
be, and it hereby is, granted in part insofar as Callison is
entitled to qualified immunity with respect to his alleged
failure to provide a property receipt, and otherwise denied.
7. That the motion to dismiss filed by Young (ECF No. 19) be,
and it hereby is, granted, and that Young be, and hereby
is, dismissed from this action.
8. That plaintiff’s complaint be, and it hereby is, dismissed
as to defendants CWVDTFC; Oak Hill City Police Department;
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Fayetteville City Police Department; City of Oak Hill, West
Virginia; City of Fayetteville, West Virginia; Mount Hope
City Police Department; City of Mount Hope; Ansted City
Police Department; City of Ansted; Gauley Bridge City
Police Department; City of Gauley Bridge; Nicholas County
Commission; Nicholas County Sheriff Department;
Summersville City Police Department; City of Summersville,
West Virginia; Richwood City Police Department; City of
Richwood; Clay County Commission; Clay County Sheriff
Department; Webster County Commission; Webster County
Sheriff Department; City of Webster Spring, West Virginia;
Webster Spring City Police Department; City of Cowen, West
Virginia; Pocahontas County Commission; Pocahontas County
Sheriff Department; Marlinton City Police Department; City
of Marlinton, West Virginia; and the estate of Kessler.
It
is further ORDERED that these parties be, and they hereby
are, dismissed from this action.
9. That this case be, and hereby is, again referred to United
States Magistrate Judge Dwane L. Tinsley for additional
proceedings as to defendants Harrah, Parsons, and Callison.
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The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
ENTER: March 27, 2020
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