United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
27, 2017, the pro se Plaintiff, who was then a
federal prisoner incarcerated at West Virginia's Central
Regional Jail, initiated this case by filing an action
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), claiming a due
process violation, unspecified “discrimination”,
and a violation of his Eighth Amendment rights. ECF No. 1.
This matter is pending before the undersigned for an initial
review and Report and Recommendation pursuant to LR PL P 2
and 28 U.S.C. § 1915A.
FACTUAL AND PROCEDURAL HISTORY
Underlying Criminal Conviction in the Northern District of
West Virginia case number 1:13-CR-72.
September 4, 2013, Plaintiff was indicted in the Northern
District of West Virginia in a three-count indictment
charging him with three counts of distribution of heroin
within 1000 feet of a protected location. ECF No.
On November 14, 2013, pursuant to a plea agreement, Plaintiff
entered a guilty plea to distribution of heroin, a lesser
included offense of Count 1, in exchange for cooperation with
the Government, and dismissal of the remaining counts of the
indictment. ECF No. 23. On March 26, 2014, the District Court
sentenced Plaintiff to 30 months of incarceration, with
credit for time served since March 24, 2014, followed by
three years of supervised release. ECF No. 37. On April 8,
2016, the Court modified the conditions or term or
supervision and ordered Plaintiff to be “placed at
Dismas Charities in Clarksburg, West Virginia for 6 months. .
. until successfully discharged.” ECF No. 42 at 1.
Plaintiff's supervised release began on May 24, 2016. ECF
No. 49. On November 4, 2016, an arrest warrant was issued for
Plaintiff based on a supervised release violation petition.
ECF Nos. 51, 52. On November 22, 2016, the Court revoked
Plaintiff's supervised release and ordered him to be
imprisoned for 12 months, with credit for time served from
November 4, 2016. ECF No. 66.
November 23, 2016, Plaintiff appealed the Court's
November 22, 2016 judgment. ECF No. 68. On April 10, 2017,
the Court of Appeals for the Fourth Circuit affirmed the
district court's judgment. ECF No. 78. According to the
Bureau of Prisons website, Plaintiff was released from BOP
custody on November 3, 2017.
The Instant Complaint in 3:17-CV-89.
filed the instant complaint on July 27, 2017, while serving
the 12-month sentence imposed by the Court on November 22,
2016. The complaint alleges three grounds for relief: (1)
“Violation of due process”; (2)
“Discrimination”; and (3) “Eighth
Amendment”. ECF No. 1 at 7 - 8. On the same date,
Plaintiff filed a motion to proceed without prepayment of
fees, and his Prisoner Trust Account Report. ECF Nos. 2, 3.
On August 30, 2017, the Court entered an order directing
Plaintiff to file ledger sheets. ECF No. 5. On September 8,
2017, the Fiscal Clerk at the Central Regional Jail filed a
letter in response to the Court's August 30, 2017, order
which advised that Plaintiff was not incarcerated in that
facility until July 10, 2017 and provided records for that
time period. ECF No. 6.
Standard of Review
Pro Se Litigants.
Petitioner is a prisoner seeking redress from a governmental
entity or employee, the Court must review the complaint to
determine whether it is frivolous or malicious. Pursuant to
28 U.S.C. § 1915A(b), the Court is required to perform a
judicial review of certain suits brought by prisoners and
must dismiss a case at any time if the Court determines that
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
must read pro se allegations in a liberal fashion.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
a complaint is frivolous if it is without arguable merit
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989) (superseded by statute). The Supreme
Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the
filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not
initiate because of the costs of bringing suit and because of
the threat of sanctions for bringing vexatious suits under
Federal Rule of Civil Procedure 11. To this end, the statute
accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual