United States District Court, S.D. West Virginia, Charleston
December 19, 2016
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
court “that would effectively halt all proceedings in
the case” and requests that the SCAWV “give
plaintiff the standard of 4 months to review and refile or
file his own brief.” (Id.)
plaintiff's Complaint fails to state a claim upon which
relief can be granted by this court for several reasons.
First, the plaintiff has solely alleged a claim for
injunctive relief under the West Virginia Constitution. Such
a claim does not arise under federal law in order to convey
jurisdiction under 28 U.S.C. § 1331, and the plaintiff
does not meet the requirements for jurisdiction based upon
diversity of citizenship as addressed in 28 U.S.C. §
1332. Accordingly, the undersigned proposes that the
presiding District Judge FIND that this
court lacks subject matter jurisdiction over the
even if the court could exercise subject matter jurisdiction
herein, the plaintiff's request for an injunction halting
all state court proceedings is now moot in light of the fact
that the plaintiff's habeas corpus appeal proceedings
have concluded. See Prokop v. Francis, No. 13-1203,
2015 WL 598196 ( W.Va. Feb. 6, 2015). The power of the
federal courts to adjudicate claims turns on the existence of
a case or controversy. U.S. Const., art. III, § 2;
Daimler-Chrysler 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 Regional Jail Authority, 2011 WL 6024499 *4
(E.D. Va., Dec. 2, 2011) (citing Powell v.
McCormack, 395 U.S. 486, 496 (1969) and North
Carolina v. Rice, 404 U.S. 244, 246 (1971)).
the plaintiff's request that the plaintiff's attorney
or the SCAWV provide the plaintiff with copies of the
documents filed on his behalf and his request that the SCAWV
be required to grant him a four-month period to file or
re-file briefs in that court are not only moot, such requests
effectively seek mandamus relief against state officials, and
a federal writ of mandamus will not lie to compel a state
official to perform a duty owed to a petitioner. See
28 U.S.C. § 1361 (“The district courts shall have
original jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States or
any agency thereof to perform a duty owed to the
plaintiff.” [Emphasis added]).
as noted above, in Twombly and Iqbal, the
Supreme Court held 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, it
does not contain “enough facts to state a claim to
relief that is plausible on its face.” The
plaintiff's Complaint summarily states that his rights
have been “grossly violated” under the West
Virginia Constitution and does not allege any conduct at all
by the SCAWV. Such threadbare and conclusory statements are
insufficient to rise above the speculative level.
Accordingly, the undersigned proposes that the presiding
District Judge FIND that the plaintiff's
Complaint does not contain any allegations that could
plausibly give rise to an entitlement to relief.
reasons stated herein, the undersigned proposes that the
presiding District Judge FIND that the
plaintiff's Complaint fails to state a claim upon which
relief can be granted and must be dismissed for lack of
jurisdiction. It is respectfully RECOMMENDED
that the presiding District Judge DISMISS
the plaintiff's Complaint (ECF No. 1), pursuant to the
provisions of 28 U.S.C. § 1915A.
plaintiff is notified that this Re-issued Proposed Findings
and Recommendation is hereby FILED, and a
copy will be submitted to the Honorable Joseph R. Goodwin,
United States District Judge. Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1)(B), and Rules
6(d) and 72(b), Federal Rules of Civil Procedure, the
plaintiff shall have fourteen days (filing of objections) and
three days (mailing) from the date of filing this Re-issued
Proposed Findings and Recommendation within which to file
with the Clerk of this Court, specific written objections,
identifying the portions of the Re-issued Proposed Findings
and Recommendation to which objection is made, and the basis
of such objection. Extension of this time period may be
granted by the presiding District Judge for good cause shown.
to file written objections as set forth above shall
constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the
Circuit Court of Appeals. Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984). Copies of such objections shall be provided
to Judge Goodwin.
Clerk is directed to file this Re-issued Proposed Findings
and Recommendation and to mail a copy of the same to the
plaintiff “c/o Mark Wissehr P.C., 507 Francis Suite
208, St. Joseph, MO 64501.”
 The undersigned's initial Proposed
Findings and Recommendation was returned as undeliverable at
the Southern Regional Jail because the plaintiff was no
longer incarcerated there. Despite the fact that the
plaintiff had not updated his address with the Clerk's
Office concerning this civil action, in another civil action
filed by the plaintiff in the Bluefield Division of this
court (Case No. 1:14-cv-24375), the plaintiff has provided a
notice of change of address as of October 17, 2016. This
Re-issued Proposed Findings and Recommendation is submitted
solely for the purpose of re-starting the 17-day objection
period discussed on page 6 herein. No substantive alterations
have been made from the initial Proposed Findings and
 The plaintiff neither paid the
applicable $400 filing fee nor filed an Application to
Proceed Without Prepayment of Fees and Costs.
 The plaintiff also filed a petition
for a writ of habeas corpus in this United States District
Court on August 20, 2013, which was dismissed on November 25,
2014, pursuant to the abstention doctrine addressed in
Younger v. Harris, 401 U.S. 37 (1971). See
Prokop v. Francis, No. 1:14-cv-15847, ECF No. 31 (S.D.
W.Va., Nov. 25, 2014) (Faber, J).