United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED-STATES DISTRICT JUDGE
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Michael John Aloi. 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”), filed on October 30,
2017 [Doc. 43]. In that filing, the magistrate judge
recommended that this Court dismiss the plaintiff's
§ 1983 Complaint with prejudice. As set forth below,
this Court agrees with the magistrate judge and adopts his
R&R over plaintiff's objections.
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 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
receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule
72(b) of the Federal Rules of Civil Procedure. The docket
reflects service was accepted on November 6, 2017 [Doc. 44].
Plaintiff timely filed his objections November 20, 2017 [Doc.
45]. Accordingly, this Court will conduct a de novo
review of the portions of the magistrate judge's R&R
to which the plaintiff objects. See, e.g.,
Austin v. Cuyler, 499 F.Supp. 1116,
1116 (E.D. Pa. 1980). The remainder of the R&R will be
reviewed for clear error.
October 19, 2016, the Three Rivers Drug Task Force was
assisting the Fairmont West Virginia Police Department on a
search warrant related to a sexual assault at 103 Weatherwax
Street, Fairmont, West Virginia [Doc. 1 at 7]. The homeowner
of that residence, Charles “Bubba” Echols
(“Echols”), was the suspect in the sexual assault
case; Echols rented a room in the residence to Plaintiff.
After officers knocked, Echols let the officers in and he was
cuffed [Doc. 34-2 at 1]. Plaintiff was detained near the back
door of the residence and was restrained by a non-defendant
officer while the search warrant was executed. The officers
discovered $620 in United State currency on Plaintiff's
person [Doc. 2 at 1]. Inside Plaintiff's room in a black
shopping bag, officers found 110 sealed 2g packs of
“Wonderland” synthetic marijuana. Id.
Officers also discovered $173 in United States currency in
plaintiff's room, along with a loaded 12 gauge Stevens
pump shotgun, several empty “Wonderland”
synthetic marijuana packs, along with several empty
“F'ed Up” brand synthetic marijuana packs.
Plaintiff's roommate/landlord Echols advised the officers
that plaintiff was selling synthetic marijuana from the back
bedroom in the house, and that many of the individuals who
purchased the drug would “trade tools, ammunition and
other items” in exchange for it [Doc. 34-2 at 2].
Plaintiff was arrested for possession with intent to deliver
and transported to the Fairmont Police Department
(“FPD”). He was later taken to Marion County
Magistrate Judge Mark Hayes for arraignment. Bond was set at
$250, 000, which plaintiff was unable to pay. He was
subsequently transported to the North Central Regional Jail
by defendants Yost and Fisher.
review of the plaintiff's Complaint and Objections, this
Court agrees with the magistrate judge that the plaintiff is
not entitled to the relief he seeks. In his Objections [Doc.
45], the plaintiff asserts that in his claim against
defendant Hayes for official misconduct, the plaintiff was
referring to his handling under the defendant's
supervision. He states that he expressed to defendant Hayes
the alleged mistreatment by defendants Yost and Fisher yet
was ignored and reprimanded by Hayes. He thus asserts that
had Hayes listened to his concerns, he would not have been
released back into Yost and Fisher's custody and may have
avoided the hypertension episode. As discussed in the next
paragraph, defendant Hayes is entitled to judicial immunity.
objects to the magistrate judge's finding that Hayes is
entitled to judicial immunity. He asserts that “most of
the underlined cases they refer to a U.S. Magistrate who is
trained in law with a law degree as opposed to a county
magistrate who is a (sic) elected official . . ..”
(Id. at 2). Plaintiff misstates the law. In West
Virginia, “judges are absolutely immune from civil
liability for damages for actions taken in the exercise of
their judicial duties.” Carey v.
Dostert, 185 W.Va. 247, 251, 406 S.E.2d 678,
682 (1991)(citing Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978)).
Importantly, “[j]udicial immunity applies to both
superior and inferior courts.” Pritchard v.
Crouser, 175 W.Va. 310, 313, 332 S.E.2d 611,
614 (1985)(holding that judicial immunity applies to a
magistrate court judge despite the fact that the magistrate
court is not a court of record). Here, the plaintiff's
claims are clearly based on actions magistrate Hayes took
while exercising his judicial duties; accordingly, he is
immune from damages as a result of those actions and the
plaintiff's claims against him are hereby
DISMISSED WITH PREJUDICE.
next objects to the recommendation that
Younger abstention apply to the
claims against defendants Yost and Fisher. See
Younger v. Harris, 401 U.S. 37 (1971).
Simply put, the Complaint should be dismissed pursuant to the
federal court abstention doctrine because plaintiff seeks
equitable relief from an ongoing state court criminal
plaintiff objects to the magistrate judge's findings
pertaining to his claim of misconduct by Yost and Fisher.
Plaintiff clarifies that his claim of misconduct by Yost
“pertain[ed] to solely defendant Yost's treatment
of the plaintiff on October 19, 2016 . . . The humiliation of
having the windows rolled down exposes the plaintiff to
motorist (sic) and his shouts of ‘look what we got'
his several remarks of racial innuendos and the personal call
to the county magistrate before the plaintiff was to be
arraigned by this same person.” [Doc. 45 at 3]. This
was thoroughly discussed in the magistrate judge's
R&R, the magistrate judge explained that excessive force
claims by a pretrial detainee or arrestee are governed by the
Due Process Clause of the Fourteenth Amendment. See
Young v. Prince George's County,
Maryland, 355 F.3d 751, 758 (4th Cir. 2004).
Therefore, to prevail on an excessive force claim under the
Due Process Clause, a plaintiff must show that the officer
“inflicted unnecessary and wanton pain and
suffering.” Taylor v.
McDuffie, 155 F.3d 479, 483 (4th Cir.
1998)(citing Whitley v. Albers, 475
U.S. 312, 320 (1991)).
explained in the R&R, “[e]ven viewing these facts
in a light most favorable to plaintiff, it is apparent that
on October 19, 2016, Yost and Fisher did not inflict any
unnecessary or wanton pain and suffering upon
plaintiff.” [Doc. 43 at 18]. Indeed, the plaintiff does
not allege that these defendants applied any force
whatsoever. Rather, he claims he was subject to humiliation
by alleged racial innuendo and being driven with the window
down, being seen under arrest. Accepting these allegations as
true, mere verbal harassment simply does not give rise to a
constitutional violation. See Wagner v.
Wheeler, 13 F.3d 86, 92-93 (4th Cir.
1993)(verbal abuse does not amount to a constitutional
violation); see also Eury v.
Angelone, 2001 WL 24042606, at *4 (E.D. Va.
June 11, 2001)(alleged derogatory racial remarks, even if
true, are not constitutional violations). Further, de
minimis injury can foreclose a Fourteenth Amendment
claim. Orem, 523 F.3d at 447.
Accordingly, this Court finds the plaintiff has failed to
state a claim upon which relief can be granted. This
Objection is OVERRULED.
plaintiff states that he agrees with the magistrate
judge's finding that the Fourteenth Amendment applies to
the plaintiff's claim of excessive force, but plaintiff
objects to his finding that the hypertension episode can be
attributed to the plaintiff's alleged anger and agitation
during processing. This objection is irrelevant. As the
R&R points out, the plaintiff alleges no injury at all,
“beyond a transient episode of hypertension . .
..” [Doc. 43 at 20]. This spike in blood pressure,
absent any complications does not rise to a deprivation of a
constitutional right. This Objection is