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Smith v. Merrit

United States District Court, N.D. West Virginia, Elkins

June 21, 2017

RICHARD A. SMITH, JR., Plaintiff,




         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Michael John Aloi. [Doc. 26]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Aloi for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Aloi filed his R&R on February 6, 2017, wherein he recommends this Court dismiss Plaintiff's Amended Complaint as frivolous.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which an objection is made. 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, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi's R&R were due within fourteen (14) days of service pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on February 8, 2017. [Doc. 27]. Plaintiff filed a Motion for Extension of Time on February 17, 2017. [Doc. 28]. This extension was granted on March 1, 2017, extending the due date for objections to thirty (30) days after service of the Order. [Doc. 29]. Plaintiff timely filed his Objection on April 3, 2017. [Doc. 31]. Accordingly, this Court will review the portions of the R&R to which Plaintiff objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         After reviewing as discussed above, this Court is of the opinion that the magistrate judge's Report and Recommendation should be and is hereby ORDERED ADOPTED.


         Plaintiff was one of twenty defendants charged in a forty-seven Count Second Superseding Indictment filed in the United States District Court in Elkins, West Virginia, on August 8, 2000. [Crim. Doc. 203].[1] On May 11, 2001, a jury in the Northern District of West Virginia found Plaintiff guilty of: (1) conspiracy to possess with intent to distribute and to distribute in excess of fifty grams of cocaine base; (2) knowing possession of a firearm by a convicted felon; (3) aiding and abetting the use, carrying, and brandishing of a firearm during and in relation to a drug trafficking offense; (4) distribution of crack cocaine; and (5) aiding and abetting the assault, resistance, and impeding of an officer. [Crim. Doc. 519]. On March 20, 2002, the Court sentenced Plaintiff to a total term of 646 months (53 years) imprisonment, as well as five years supervised release, an assessment fee of $800.00, and a fine of $12, 000.00. [Crim. Doc. 778].

         Plaintiff has filed several post-judgment motions and appeals, which have all been unsuccessful. The United States Court of Appeals for the Fourth Circuit affirmed Plaintiff's convictions on direct appeal by an unpublished per curiam opinion issued on November 29, 2002. [Crim. Doc. 844]. Further, Plaintiff's Motion to Vacate pursuant to 28 U.S.C. § 2255 was denied by the United States District Court on May 19, 2005. [Crim. Doc. 978]. Additionally, Plaintiff applied for a writ of certiorari to the United States Supreme Court and was denied. Richard Allen Smith, Jr., v. United States, 540 U.S. 934 (October 6, 2003). The instant Complaint is the latest in this line of challenges to Plaintiff's conviction.

         On April 18, 2016, Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 [Doc. 1], along with a Motion to Proceed without Prepayment of Fees, or in forma pauperis. [Doc. 2]. The same day, the Clerk of the Court issued a Notice of Deficient Pleading [Doc. 7], directing Plaintiff to file the complete names of all defendants, complete addresses for each, and complete his Prisoner Trust Account Report, including direction to have the Report completed and signed by the Trust Officer. [Id.]. On May 12, 2016, Plaintiff filed his Prisoner Trust Account Report and a Motion to Amend the Complaint to Name Additional Defendants. [Doc. 10]. Next, on May 13, 2016, Magistrate Judge Aloi granted Plaintiff's Motion to Proceed in forma pauperis. [Doc. 11]. On July 15, 2016, Magistrate Judge Aloi granted the Plaintiff's Motion to Amend. [Doc. 14].

         Following the granting of the Motion to Amend, Plaintiff filed a Motion for Extension of Time to file his amended Complaint on August 11, 2016, which was granted by Magistrate Judge Aloi on August 12, 2016. [Doc. 19]. Finally, Plaintiff filed his Amended Complaint naming the above defendants on September 7, 2016. [Doc. 23]. Plaintiff's Complaint alleges misconduct by state officials acting in their official capacity for the state which led to the conviction and sentence for which Plaintiff is currently incarcerated. [Id.]. Specifically, Plaintiff alleges that defendants, Gary Merrit, Robert E. Cooper, and Dave O. Lucas, in their official capacity as police officers, conspired to forge search warrants used in connection with Plaintiff's trial and conviction. [Id.]. No specific claim is made against Todd O. McDaniel. [Id.]. Next, Plaintiff alleges that Timothy G. White, in his official capacity as a chemist for the West Virginia State Police Lab, falsified drug lab reports pertaining to Plaintiff's criminal case. [Id.]. Finally, Plaintiff alleges that Sherry Muncy and Paul T. Camilletti were complicit in alleged falsifying of drug lab reports in their official capacities. [Id.]. As relief, Plaintiff requests $25, 000, 000.00 for violation of his constitutional rights and $10, 000, 000.00 in punitive damages. [Id.]. Magistrate Judge Aloi filed his R&R on February 6, 2017. [Doc. 26]. Plaintiff filed his Objection on April 3, 2017. [Doc. 31].


         In his R&R, Magistrate Judge Aloi begins by outlining the all of the above information regarding the background and procedural history of the instant case, as well as the content of Plaintiff's Complaint. [Doc. 26]. After laying out the necessary standard of review for prisoner's seeking redress from a government entity and the requirements for a complaint to be considered frivolous, Magistrate Judge Aloi begins his analysis of Plaintiff's Complaint. [Id.]. The conclusion of this analysis is that Plaintiff's Complaint has no chance of success and is, therefore, frivolous and should be dismissed. [ Id.]. As reasoning for this conclusion, the magistrate judge states that a § 1983 action cannot imply the invalidity of a conviction and must have been otherwise invalidated before it may proceed. [Id.]. As invalidation of the conviction would be the result were Plaintiff's Complaint to be successful, the magistrate judge concludes that the Complaint cannot be successful. [Id.].

         In his Objection, Plaintiff does not seem to object to a particular portion of Magistrate Judge Aloi's R&R. [Doc. 31]. Instead, Plaintiff seems to be objecting to not only the entirety of the R&R, but the very body of case law surrounding 42 U.S.C. § 1983. [Id.]. To support his argument, Plaintiff attempts to make several policy arguments suggesting that ignoring both the R&R and several United States Supreme Court cases would allow this Court to contribute to solving a crisis in police misconduct dealing with black men. [Id.]. Further, Plaintiff suggests that there is disagreement among the courts as to the application of § 1983, and that the magistrate judge choosing to interpret § 1983 against Plaintiff will lead to police officers not answering for misconduct, unlawful incarcerations, and no chance of justice for minorities in West Virginia. [Id.]. Plaintiff references discovery several times and contends that if the Court would examine discovery they would see that misconduct has clearly occurred. [Id.]. Finally, Plaintiff seeks to tie the alleged misconduct of the defendants to his conviction, suggesting that this case should move forward so that his conviction may be overturned. [Id.].

         A. ...

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