United States District Court, N.D. West Virginia, Elkins
RICHARD A. SMITH, JR., Plaintiff,
GARY MERRIT, ROBERT E. COOPER, DAVE O. LUCAS, TODD O. McDANIEL, TIMOTHY G. WHITE, SHERRY MUNCY, AND PAUL T. CAMILLETTE, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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]. 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.
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
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.
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].
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.
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.].