Holbrook v. Cabell County Prosecutors Office et al

Filing 4

MEMORANDUM OPINION AND ORDER directing Plaintiff to amend his complaint within forty-five (45) days of the date of this Order and cure the various deficiencies in the pleading as indicated herein; advising the Plaintiff of the "three strikes" rule and of his obligation as a pro se plaintiff to promptly advise the Clerk of any changes in his address. Signed by Magistrate Judge Cheryl A. Eifert on 4/20/2016. (cc: Plaintiff) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SHANE STEPHEN HOLBROOK,
Plaintiff,
v.

Case No. 3:16-cv-03489

CABELL COUNTY PROSECUTORS
OFFICE; JOE FINCHMAN; STATE
OF WEST VIRGINIA,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Application to Proceed Without Prepayment
of Fees and Costs (ECF No. 1) and a Complaint filed pursuant to 42 U.S.C. § 1983. (ECF
No. 2). In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a
preliminary review of Plaintiff’s complaint to determine if the action is frivolous, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. Although pro se complaints, such as the one filed in this
case, must be liberally construed to allow the development of potentially meritorious
claims, the court may not rewrite the pleading to include claims that were never
presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), develop the
plaintiff’s legal theories for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993),
or “conjure up questions never squarely presented” to the court. Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same time, to achieve justice, the
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court may allow a pro se plaintiff the opportunity to amend his complaint in order to
correct deficiencies in the pleading. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Plaintiff’s complaint alleges the following:
1.
Joe Finchman, a Cabell County Prosecutor, gave false information to the media
to insult and defame Plaintiff’s integrity and character.
2.
In a March 9, 2016 article, Mr. Finchman was reported saying that Plaintiff had
waived his right to a speedy preliminary hearing and a shooting victim was in the
hospital. These statements were false and were made to maliciously prosecute a case
against Plaintiff.
3.
As a result of these statements, Plaintiff was and continues to be unlawfully
restrained.
(ECF No. 2 at 4-5). Plaintiff seeks no more than one million dollars in compensatory and
punitive damages, as well as other non-monetary relief. (Id. at 5).
In order for the undersigned to complete a preliminary review of the merits of the
complaint and rule on the motion to proceed in forma pauperis, Plaintiff is ORDERED
to amend his complaint within forty-five (45) days of the date of this Order and cure
the various deficiencies in pleading as indicated below:
1. Cabell County, including its offices, is a municipality. A municipality cannot be
held liable under § 1983 solely because it employs a person who allegedly violated a
plaintiff’s constitutional rights. Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). To recover against a municipality under § 1983, a plaintiff
must explicitly allege that the wrongful actions of the municipal employee were taken in
furtherance of a “policy or custom” of the municipality. Id. In addition, the plaintiff must
identify the municipal policy or custom that purportedly caused the injury. Board of
Commissioners of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d
626 (1997). Therefore, if Plaintiff wishes to assert a claim against the Cabell County
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Prosecutors Office under § 1983, Plaintiff shall identify the custom or policy allegedly
followed by Mr. Finchman in making the purportedly slanderous statements. In the
alternative, if Plaintiff is not claiming that the alleged wrongful actions were the result of
a municipal custom or policy, but has sued the Prosecutors Office solely in its role as Mr.
Finchman’s employer, then Plaintiff shall name only Mr. Finchman as the defendant and
shall move to dismiss the Prosecutors Office.
2. “A malicious prosecution claim under § 1983 is properly understood as a Fourth
Amendment claim for unreasonable seizure which incorporates certain elements of the
common law tort. To state such a claim, a plaintiff must allege that the defendant (1)
caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable
cause, and (3) criminal proceedings terminated in plaintiff's favor.” Evans v. Chalmers,
703 F.3d 636, 647 (4th Cir. 2012) (internal citations and quotation marks omitted); see
also Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012); Snider v. Seung Lee, 584 F.3d
193, 199 (4th Cir. 2009) (“While it is not entirely clear whether the Constitution
recognizes a separate constitutional right to be free from malicious prosecution, if there
is such a right, the plaintiff must demonstrate both an unreasonable seizure and a
favorable termination of the criminal proceeding flowing from the seizure”) (internal
citations omitted); Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000) (holding that
a “malicious prosecution” claim under § 1983 is “simply a claim on a Fourth Amendment
seizure that incorporates elements of the analogous common law tort of malicious
prosecution-specifically, the requirement that the prior proceeding terminate favorably
to the plaintiff”). Moreover, it is well settled that “an indictment, ‘fair upon its face,’
returned by a ‘properly constituted grand jury,’ conclusively determines the existence of
probable cause.” Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012) (quoting Gerstein
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v. Pugh, 420 U.S. 103, 117 n.19, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).
In the complaint, Plaintiff alleges that his constitutional rights are being violated
by his “unlawful restraint” for the purpose of a “malicious” prosecution. However,
Plaintiff has failed to state factual allegations to support such a cause of action under §
1983. Plaintiff shall amend his complaint to state facts showing his seizure without
probable cause and termination of the criminal proceedings in his favor. If, on the other
hand, Plaintiff’s complaint against Mr. Finchman is actually nothing more than a garden
variety defamation claim, Plaintiff fails to state a constitutional violation. In that case, as
Plaintiff has been previously advised, he must amend his complaint to include factual
allegations that demonstrate a basis for federal jurisdiction.
Plaintiff is hereby given notice that a failure to amend the complaint as
ordered may result in a recommendation that the complaint be dismissed for
failure to state a claim compensable at law. Plaintiff’s Application to Proceed
Without Prepayment of Fees and Costs shall be held in abeyance pending initial review of
Plaintiff’s amended complaint, or pending other further proceedings in this case.
Plaintiff is also advised that 28 U.S.C. § 1915 governs actions in which a
prisoner seeks to proceed without prepayment of fees or costs (“in forma pauperis”).
Section 1915(g) of the statute includes a “three strikes” rule, stating as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
occasions, while incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.
According to the Court’s docket, Plaintiff has filed three pro se lawsuits in this Court in
the past two weeks, and in all three, he has requested to proceed without prepayment of
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fees or costs. If these cases are dismissed for any of the reasons set forth above, Plaintiff
shall be barred from filing any other cases in forma pauperis unless he is in imminent
danger of serious physical injury. Therefore, Plaintiff may wish to carefully review the
three cases he has filed and determine whether he wishes to proceed with all three actions.
If Plaintiff wishes to voluntarily dismiss any of the pending actions, he shall file a motion
for voluntary dismissal with the Clerk of Court.
Plaintiff is reminded of his obligation as a pro se plaintiff to promptly advise the
Clerk of Court of any changes in his address.
The Clerk is directed to mail a copy of this Order to Plaintiff.
ENTERED: April 20, 2016

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