Azeez v. Keller et al

Filing 137

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATION: Based on the findings herein, the Court does hereby ORDER that the Magistrate Judge's 135 Proposed Findings and Recommendation be ADOPTED. The Court ORDERS that Defendant Hutchison's 26 Motion to Dismiss and 124 Renewed Motion to Dismiss be GRANTED. Signed by Judge Irene C. Berger on 9/8/2011. (cc: attys; any unrepresented party) (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

JAMAL A. AZEEZ,
Plaintiff,
v.

CIVIL ACTION NO. 5:06-cv-00106

KRISTEN L. KELLER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
ADOPTING PROPOSED FINDINGS AND RECOMMENDATION

The Court has reviewed the Motion to Dismiss on Behalf of Defendant John A. Hutchison
(Docket 26), Defendant John Hutchison’s Renewed Motion to Dismiss (Document 124), Plaintiff’s
Opposition to Defendant Hutchison’s Motion to Dismiss (Document 53) and Plaintiffs’ Renewed
Opposition to Defendant Hutchison’s Motion to Dismiss (Document 126). The Magistrate Judge
has reviewed each motion and submitted his Proposed Findings and Recommendations (PF&R)
(Document 135).

I. RELEVANT FACTS AND PROCEDURAL HISTORY
The PF&R sets forth in great detail the relevant facts and procedural history, and the Court
incorporates by reference those facts and procedural history without further recitation.1 The facts

1

Plaintiff doesn’t specifically object to any of the procedural history or general facts as outlined in the PF&R
in Plaintiff’s Objections to Magistrates Findings and Recommendations (Docket 136). The Court addresses, infra pp.810, Plaintiff’s objections.

and procedural history with respect to Plaintiff’s specific claims against Defendant Hutchison are
discussed in section IV. A., infra.

II. STANDARD OF REVIEW OF THE MAGISTRATE JUDGE’S PF&R
The Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C)
(2006). However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, the Court need not conduct a de novo review when a party “makes general and
conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When
reviewing portions of the PF&R de novo, the Court will consider the fact that Plaintiff is acting pro
se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

III. 12(b)6 MOTION TO DISMISS LEGAL STANDARD
Under Rule 8(a)(2), a plaintiff must provide a “short and plain statement of the claim
showing . . . entitle[ment] to relief,” and is not required to plead specific facts in the complaint. Fed.
R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The statement need
only “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This standard
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of

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action will not do.” Id. at 555 (internal citations omitted); see also Ashcroft v. Iqbal, --- U.S. ----,
----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (stating that “the Rule does call for sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”). A defendant
may challenge the complaint under Rule 12(b)(6) for “failure to state a claim upon which relief can
be granted . . ..” Fed. R. Civ. P. 12(b)(6).
In reviewing a motion to dismiss under Rule12(b)(6), the Court must “accept as true all of
the factual allegations contained in the complaint.” Erikson v. Pardus, 551 U.S. 89, 93 (2007). The
Court must also “draw[ ] all reasonable factual inferences from those facts in the plaintiff’s favor
. . ..” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). “[D]etermining whether
a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its
experience and common sense.” Iqbal, 129 S.Ct. at 1950.
Here, Plaintiff filed his complaint pro se, which requires the Court to give deference to his
complaint. See Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978)(A District Court should allow
pro se plaintiffs reasonable opportunity to develop pleadings.); Coleman v. Peyton, 340 F.2d 603,
604 (4th Cir. 1965)(Pro se plaintiff should be given an opportunity to particularize potentially viable
claims.). A pro se Complaint may, therefore, be dismissed for failure to state a claim only if it
appears “‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 521(1972), quoting Conley v. Gibson,
355 U.S. 41, 45 - 46 (1957).

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IV. DISCUSSION
A. Facts and Procedural History of claim against Defendant Hutchison
Plaintiff filed his Civil Rights Complaint under 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1332
alleging unlawful arrest and unlawful incarceration on July 11, 2005, in the United States District
Court for the Eastern District of New York. One of the nine Defendants is Raleigh County Circuit
Judge John Hutchison. On January 25, 2006, United States District Judge Joanna Seybert issued
a Memorandum Opinion and Order (Document 23) transferring the matter to this Court. In this
opinion, the Court considers only Defendant Hutchison’s motion to dismiss. With respect to this
particular defendant, Plaintiff’s complaint alleges the following:
53.

Plaintiff exhausted several local FOIA steps by requesting production of court and
police records that related to the case. After repeated denials, Plaintiff filed an actual
complaint under Freedom of Information Act (FOIA) in the Raleigh County Court
hoping for a successful judicial intervention. During a hearing, Defendant Hutchison
treated Plaintiff with severe disrespect, being pro se, and threatened by [sic] Plaintiff
‘not to return’ to the court looking for documents, because all matters were
considered ‘res judicata’.

54.

Plaintiff then filed with several state agencies a 53 page ‘Criminal Complaint’ that
should have been reviewed first by the Office of the Prosecuting Attorney. The
Defendants of the Beckley Police Department totally ignored the complaint although
Plaintiff had a civilian friend to personally file said complaint

55.

Instead of replies from either the State Police, the Beckley Police Department or the
State Attorney General’s office, Defendant Hutchison unlawfully intervened and
abused his judicial authority; and beyond the scope of his judicial responsibilities,
wrongfully, intentionally, and without justification, interpreted the criminal
complaint as a ‘civil suit’; specifically done so as to apply the principles of the
Prison Litigation Reform Act. Defendant Hutchison retaliatorally [sic] and punitively
revoked ‘50% of all earned good time credit’; even on a sentence that was already
discharged. He dismissed the Complaint as being ‘frivolous’. Plaintiff had never
been accused of filing any ‘frivolous’ complaint in that court; making such sanction
inappropriate, unlawful and retaliatory.

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56.

The Honorable John S. Kaull and Robert E. Maxwell of the Northern District Court
recently ruled on a federal appeal on said case that Plaintiff should file a ‘civil rights’
complaint instead of habeas corpus petition against Defendant Hutchison for
‘retaliation’. (Case No. 2:03-CV 17 NDWV).
(Document 23, Attachment 3).2
Plaintiff claims that as a result of all of the Defendants’ actions, he has suffered loss of
reputation, immense emotional trauma, physical injuries, loss of liberty, mental anguish, depression
and anxiety. Id. Plaintiff seeks compensatory and punitive damages in an amount of ten million
dollars and injunctive relief against any additional, similar actions by Defendants. Id.
Defendant Hutchison filed a Memorandum of Law together with his motion to dismiss on
February 21, 2006 (Document 27). He asserts that Plaintiff did not properly serve him with the
complaint, that his alleged actions for which Plaintiff would hold him liable occurred in the course
of the performance of his judicial functions and constituted judicial acts such that he is entitled to
absolute judicial immunity, and that Plaintiff’s action is barred under the applicable statute of
limitations. Id. On April 25, 2006, Plaintiff filed his opposition to Defendant Hutchison’s motion
to dismiss. Plaintiff states that he hired a professional process server who properly served the
complaint on Defendant Hutchison. Id. He argues that Defendant Hutchison does not have judicial
immunity because it does not apply to Section 1983 claims. Id. Plaintiff also argues Defendant
Hutchison did not have jurisdiction to dismiss, as a civil action, Plaintiff’s “Criminal Complaint”
filed in the Raleigh County Circuit Court on December 6, 2001. Id. Finally, Plaintiff takes the
position that Defendant Hutchison’s statute of limitations defense should not apply because Plaintiff
did not have standing to bring the claim until his civil rights complaint was terminated on August

2

The Magistrate Judge’s PF&R mistakenly indicated that Plaintiff did not have a paragraph 55 of his complaint.
It appears during the transfer of Plaintiff’s complaint to this Court that a scanning error may have removed a couple of
lines at the end of paragraph 54 and at the beginning of paragraph 55. The Court will consider the full complaint as
reflected in Plaintiff’s properly scanned complaint as reflected in Document 23, Attachment 3.

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12, 2003, which would put the filing of this complaint within the two year statute of limitations. Id.
Defendant Hutchison filed a Reply Memorandum on April 27, 2006 (Document 56), asserting that
judicial immunity does apply to Section 1983 claims, that Plaintiff could not initiate a criminal
proceeding under West Virginia law, and that Plaintiff’s statute of limitations argument is without
merit.
On February 18, 2011, Defendant Hutchison filed a renewed motion to dismiss and
memorandum in support, in which he reiterates the arguements he made in his initial motion to
dismiss. On March 3, 2011, Plaintiff filed a renewed opposition to Defendant Hutchison’s motion
to dismiss. Plaintiff argues that he has pled facts sufficient to hold Defendant Hutchison liable and
that absolute or judicial immunity is not a defense to his claim. Id. He also reiterates his position
on the tolling of the statute of limitation. He argues that he did not have standing to bring the claim
until his charges were reversed on August 12, 2003.

B. Proposed Findings and Recommendation
The Magistrate Judge first considered whether absolute judicial immunity applied to
Plaintiff’s claims against Defendant Raleigh County Circuit Judge Hutchison in trying to determine
whether or not to recommend granting the motion to dismiss. If it does apply, dismissal of
Plaintiff’s claim for failure to state a claim upon which relief can be granted would be required
pursuant to Fed. R. Civ. P. 12(b)(6). If it did not apply, there would be a necessity to discuss the
other legal issues raised in the motion to dismiss.
The Magistrate Judge correctly laid out the applicable law of the doctrine of judicial
immunity in his PF&R. It is as follows:

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The doctrine of judicial immunity “attaches even if the act in question was
in excess of [the judge’s] authority.” Jackson v. Houck, 181 Fed.Appx. 372
(4th Cir. 2006)(quoting Mireles v. Waco, 502 U.S. 9, 12-13 (1991)); see also
Everson v. Doughton, 267 Fed.Appx. 229 (4th Cir. 2008)(“We have identified
two important factors for consideration: whether the function is one normally
performed by a judge and whether the parties dealt with the judge in his or
her judicial capacity.” citing King v. Myers, 973 F.2d 354, 357 (4th Cir.
1992).) “Few doctrines were more solidly established at common law than
the immunity of judges from liability for damages for acts committed within
their judicial jurisdiction, as this Court recognized when it adopted the
doctrine in Bradley v. Fisher, 80 U.S. 335, (1871).” Imbler v. Patchman, 424
U.S. 409, 419 (1976). “This immunity applies even when the judge is
accused of acting maliciously and corruptly, and it ‘is not for the protection
or benefit of a malicious or corrupt judge, but for the benefit of the public,
whose interest it is that the judges should be at liberty to exercise their
functions with independence and without fear of consequences.” Id.
(adopting doctrine of absolute judicial immunity in Section 1983 actions)
(internal citation omitted).
(Docket 135 at 14). The Magistrate Judge found that Judge Hutchison was clearly entitled to
judicial immunity because he acted fully within his judicial capacity in his dealings with Plaintiff.
Further, the Magistrate Judge found that, “Judge Hutchison’s alleged decisions, actions and
comments about which Plaintiff complains are exactly what judicial immunity is designed to
protect.” Id. The Magistrate Judge found that “Plaintiff has not stated and can state no claim against
Judge Hutchison for which relief may be granted, and Judge Hutchison’s Motion to Dismiss and
Renewed Motion to Dismiss should therefore be granted.” Id. at 14. The Magistrate Judge also
found that it is not necessary to consider other grounds raised by the Defendant in his motions to
dismiss given the recommended ruling relative to judicial immunity.

C. Plaintiff’s Objections to PF&R
Plaintiff asserts that the PF&R “prejudicially omits pertinent facts from which relief can be
granted;” the PF&R “erroneously did not review, in the light most favorable to the plaintiff,
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whether the complaint states a valid claim for relief;” the PF&R “fails to follow basic principles of
prior decisions for the purpose of a motion to dismiss under 12(b)(6);” and the PF&R “erroneously
asserts that there are no issues of material fact to be resolved.” (Pl.’s Objections ¶¶ 1,3,4&5).
Plaintiff fails to point to any facts or specific standards that were not considered by the Magistrate
Judge. Accordingly, the Court finds that these objections are general, conclusory objections which
do not warrant de novo review and are without merit. Orpiano, 687 F.2d at 47.
Plaintiff also asserts that the Court “...must examine the complaint to determine if the
allegations provide for relief on any possible theory.” (Pl.’s Objections ¶ 6) (citing Bramlet v.
Wilson, 495 F.2d 714, 716 (8th Cir. 1974). The Court finds that this “objection” must be given de
novo review. Plaintiff takes the rule in Bramlet out of context. The full quote he attempted to cite
states “a complaint should not be dismissed merely because a plaintiff's allegations do not support
the particular legal theory he advances, for the court is under a duty to examine the complaint to
determine if the allegations provide for relief on any possible theory.” Bramlet 495 F.2d at 716.
Judicial immunity applies if a judge’s actions were among those normally performed by a
judge and the judge dealt with parties in his or her judicial capacity. King, 973 F.2d at 357 (4th Cir.
1992). Further, so long as the judge is acting in his or her judicial capacity and taking actions
normally performed by a judge as required by King, this judicial immunity is absolute, including
with respect to Section 1983 claims. Imbler, 424 U.S. at 419 (1976).
In paragraph 53 of his complaint, Plaintiff alleges that Defendant Hutchison, during the
FOIA proceedings, treated him with severe disrespect and threatened him not to return to the court
looking for documents. Defendant Hutchison dealt with Plaintiff in his official capacity when he
dismissed Plaintiff’s FOIA complaint. A dismissal of a FOIA request is an action that is within the

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broad spectrum of actions normally performed by a judge as part of his or her regular duties.
Judicial immunity clearly applies here regardless of the Plaintiff’s perception that this Defendant
treated him with disrespect. Furthermore, there is no possible legal theory under which the
Plaintiff’s allegations in paragraph 53 can survive against this Defendant. In other words, it is
beyond doubt that the Plaintiff can prove no set of facts that would entitle him to relief, given the
doctrine of judicial immunity.
In paragraphs 54 and 55 of his complaint, Plaintiff alleges that Defendant Hutchison acted
without jurisdiction and abused his judicial authority when he dismissed Plaintiff’s “Criminal
Complaint.” Defendant Hutchison dealt with Plaintiff in the judge’s official capacity when he
dismissed, as a civil complaint, Plaintiff’s “Criminal Complaint.” Again, this is an action taken by
a judge and is within the scope of his normal duties. Thus, judicial immunity applies. Further, it
is clearly established that a private citizen can not initiate a criminal complaint under West Virginia
Law. See W. Va. R. Crim. P. 3. Given the allegations contained in paragraphs 54 and 55, the Court
finds, again, that there is no possible theory under which these claims would survive scrutiny given
the doctrine of judicial immunity.
After a de novo review of this matter, the Court finds Plaintiff has alleged no facts, under any
possible theory, that would support a claim against Defendant Hutchison. Simply put, Defendant
Hutchison, at all times, dealt with Plaintiff in his capacity as a judge and only took actions that
would normally be performed by a judge. Thus, judicial immunity serves as an absolute defense to
any possible claim Plaintiff could have against Defendant Hutchison. Accordingly, the Court finds
that Plaintiff’s objection is without merit.

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Plaintiff objects to Defendant Hutchison’s statute of limitations defense on the basis that the
Magistrate failed to “assert the time frame of Defendant Hutchison’s ruling on the Criminal
Complaint, the times of subsequent actions plaintiff initiates as a result of such ruling, and the dates
when rulings were made on subsequent litigations, all leading up to the date Judge Maxwell reversed
the conviction and released Plaintiff.” (Pl.’s Objection ¶ 2). As previously discussed, the PF&R
does not address Defendant Hutchison’s statue of limitations defense.
The Plaintiff’s objection here is without merit inasmuch as the Magistrate Judge did not
recommend dismissal based on this defense. Further, even if the Court were to find that Plaintiff
properly filed his complaint against Defendant Hutchison within the applicable statute of limitation,
it would not change the Court’s ruling on Defendant Hutchison’s motion to dismiss. This Court, in
its de novo review, has determined that judicial immunity serves as a bar to all of Plaintiff’s claims
against Defendant Hutchison. Given that finding, a ruling on whether Plaintiff filed his action
against Defendant Hutchison within the applicable statute of limitations simply is not necessary and
would serve no legitimate purpose.
Finally, Plaintiff objects to the Magistrate Judge’s “failure to consider retaliation as a basis
upon which relief can be granted even though Defendant is a Judge.” (Pl.’s Objection ¶ 7).
However, again, as in this instance, where Defendant acted within his normal role as a judge and
dealt with Plaintiff in his official capacity, Defendant enjoys absolute judicial immunity. Imbler,
424 U.S. at 419. Accordingly, this Court finds this objection to be lacking in merit, as well.

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V. CONCLUSION
Thus, based on the findings herein, the Court does hereby ORDER that the Magistrate
Judge’s Proposed Findings and Recommendation (Document 135) be ADOPTED. The Court
ORDERS that Defendant Hutchison’s Motion to Dismiss (Document 26) and Renewed Motion to
Dismiss (Document 124) be GRANTED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 8, 2011