United States District Court, S.D. West Virginia, Charleston
ROBERT C. PROKOP, Plaintiff
SUPREME COURT OF APPEALS OF WEST VIRGINIA, Defendant.
RE-ISSUED PROPOSED FINDINGS AND
L. Tinsley United States Magistrate Judge
November 5, 2014, the plaintiff, who is proceeding pro
se, filed the instant Complaint (ECF No.
This matter is assigned to the Honorable Joseph R. Goodwin,
United States District Judge, and it is referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B).
to the provisions of 28 U.S.C. § 1915A, the court is
obliged to screen each case in which a prisoner seeks redress
from a governmental entity, 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. 28 U.S.C.
§§ 1915A(a) and (b). A "frivolous" case
has been defined as one which is based on an indisputably
meritless legal theory. Denton v. Hernandez, 504
U.S. 25 (1992). A "frivolous" claim lacks "an
arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
complaints are held to less stringent standards than those
drafted by attorneys, and the court is obliged to construe
liberally such complaints. However, in Bell Atlantic Corp
v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court
observed that a case should be dismissed for failure to state
a claim upon which relief can be granted 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.” 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
Supreme Court elaborated on its holding in Twombly
in Ashcroft v. Iqbal, 129 S.Ct. 1937 (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, 127 S.Ct. 1955 (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 well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
129 S.Ct. at 1949-50.
district court must also 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.
Memorial Hosp. Ass'n, 361 F.Supp. 398 (S.D. W.Va.
1973), aff'd sub. nom. Duffield v. Charleston Area
Medical Ctr., 503 F.2d 512 (4th Cir. 1974); see also
Bolin v. Chavez, 210 F.3d 389 (10th Cir. 2000)
(permitting sua sponte dismissal for lack of subject
matter jurisdiction under Rule 12(h)(3) of the Federal Rules
of Civil Procedure).
the plaintiff's Complaint asserts a claim for relief over
which this court lacks subject matter jurisdiction and
otherwise fails to state a claim upon which relief may be
granted under the standards set forth in
Twombly/Iqbal, the defendant has not been served
with process and should not be required to appear or defend
Complaint alleges that the plaintiff's rights under
Article 3, section 14 of the West Virginia Constitution were
violated in relation to his appeal of the September 25, 2013
Order of the Circuit Court of Mercer County denying a writ of
habeas corpus. The plaintiff's Complaint names the
Supreme Court of Appeals of West Virginia (the
“SCAWV”) as the sole defendant. The Complaint
further contains allegations relating to the conduct of the
plaintiff's court-appointed counsel in his habeas appeal,
alleging that there has been a “complete breakdown of
communication between plaintiff and counsel.” (ECF No.
1 at 3). The plaintiff seeks an injunction by this federal