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Foster v. Charnock

United States District Court, S.D. West Virginia, Charleston

January 22, 2018

CARL C. FOSTER, Plaintiff,
v.
JUDGE ANN CHARNOCK, et al. Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE

         On August 1, 2014, the plaintiff, Carl C. Foster, filed a Complaint (ECF No. 2) and an Application to Proceed in forma pauperis (ECF No. 1).[1] This matter is assigned to the Honorable John T. Copenhaver, Jr., 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).

         PROCEDURAL HISTORY

         This is one of eight Complaints filed by the plaintiff in this federal court since August of 2014 in which the plaintiff has made repeated attempts to “appeal” or seek collateral review of unfavorable decisions rendered in numerous lawsuits he has filed in the Circuit Court of Kanawha County.[2] The instant Complaint, which is cumbersome and difficult to interpret, names 31 defendants, including all of the circuit judges of Kanawha County, Municipal Judge Ann Charnock, and numerous other individuals or entities that were parties to his prior complaints filed in the Circuit Court of Kanawha County or with the West Virginia Human Rights Commission. For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge DISMISS the Complaint under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted and because it seeks monetary relief from defendants who are immune from such relief.

         STANDARD OF REVIEW

         Because the plaintiff is proceeding pro se, the court is obliged to construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 521 (1972). Rule 8(a) of the Federal Rules of Civil Procedure governs the requirements for stating a proper claim for relief:

A pleading which sets forth a claim for relief . . . shall contain 1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it, 2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.

Fed. R. Civ. P. 8(a) (Emphasis added).

         Pursuant to 28 U.S.C. § 1915(e)(2)(B), because the plaintiff is proceeding without prepayment of fees and costs, the court is obliged to screen the case to determine 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. § 1915(e)(2)(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). Furthermore, 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

         The 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 to relief.

129 S.Ct. at 1949-50.

         ANALYSIS

         The initial Complaint begins by discussing a number of cases the plaintiff has unsuccessfully filed in the Circuit Court of Kanawha County and with the West Virginia Human Rights Commission. (ECF No. 2 at 1). The Complaint alleges that “in the normal course of preparing for my trials, it has become impossible; not only because of the defendants, but also the actions and words of the secretaries of ...


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