United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
pending before the Court is a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Robert W. Trumble. ECF No. 13. Pursuant to this
Court's Local Rules, this action was referred to
Magistrate Judge Trumble for submission of an R&R. On
November 17, 2017, Magistrate Judge Trumble issued his
R&R, recommending that this Court dismiss the
Plaintiff's complaint with and without prejudice and deny
as moot her application to proceed in forma
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, this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a plaintiff's right
to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984).
case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule
72(b) of the Federal Rules of Civil Procedure, objections to
Magistrate Judge Trumble's R&R were due within
fourteen days after being served with a copy of the same. The
R&R was sent to the Plaintiff by certified mail, return
receipt requested, on November 17, 2017. ECF No. 10. The
Plaintiff accepted service on November 22, 2017. ECF No. 14.
The Plaintiff filed objections, totaling 304 pages, on
December 4, 2017. ECF No. 16. The majority of the
Plaintiff's objections consist of a verbatim recitation
of various statutes. Id. However, one of the
Plaintiff's primary objections is that Magistrate Judge
Trumble did not consider “the record, ” because
he required her to refile her complaint on court approved
forms, shortening the length of the complaint considerably.
Id. By her argument, she necessarily left out
important information that would control the outcome of the
R&R. Accordingly, the Court will review Magistrate Judge
Trumble's findings de novo and will consider the
initial complaint, court approved forms, and objections in so
August 31, 2017, the Plaintiff filed a complaint against
forty-seven Defendants alleging conspiracy, corruption,
fraud, retaliation, illegal profiting, gang stalking,
harassment, mental abuse, physical attacks, felony vandalism,
internet-hacking, home invasion, discrimination, HIPPA and
privacy law violations, mail fraud, violation of Second
Amendment rights, and wrongful death or possible murder. ECF
No. 1 and 10. These allegations appear to stem from the
Plaintiff's marriage to and subsequent divorce from one
of the Defendants, Robert Blane Crookshank. The complaint
lists the Plaintiff's deceased mother, Immogene Williams
Daniels, as a second Plaintiff. Id. However, as
discussed in the R&R without objection by the Plaintiff,
Immogene Williams Daniels is deceased and cannot bring the
cause of action. Accordingly, the complaint will be evaluated
as to Plaintiff Anita Shelton, alone.
of the large number of Defendants, and convoluted claims
against each, the Court has grouped the relative reasons for
dismissal as follows: (1) lack of subject matter
jurisdiction; (2) lack of personal jurisdiction; (3)
immunity; and (4) failure to state a claim upon which relief
may be granted. While the R&R dismisses several claims on
the grounds that the statute of limitations has expired, the
Plaintiff objects to these findings, stating that the
“claims continue and have never ceased.” ECF No.
16 at 4. However, the R&R does not rely on the statute of
limitations in dismissing any claim. Rather, the R&R
lists multiple reasons for dismissal, including but not
relying on, the statute of limitations. Accordingly, the
Court will not decide whether the statute of limitations have
expired because all claims can be dismissed on other grounds.
Lack of Subject Matter Jurisdiction
to Federal Rule of Civil Procedure 12, “[i[f the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3). Federal courts have subject matter
jurisdiction over cases where there the complaint presents a
federal question or where there is complete diversity of
citizenship and the amount in controversy exceeds $75, 000.
far as the Plaintiff alleges a Bivens or § 1983
claim, the Court has federal question jurisdiction over the
claim. Federal question jurisdiction is codified in 28 U.S.C.
§ 1331 which states “[t]he district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws or treaties of the United
States.” 28 U.S.C. § 1331. Because Bivens
and § 1983 both arise under federal law, jurisdiction
for these claims is proper under 28 U.S.C. § 1331.
However, a Bivens action may only be brought against
a federal officer. See Correctional Services Corp. v.
Malesko, 534 U.S. 61, 66 (2001). Similarly, claims
arising under 42 U.S.C. § 1983 require that the
Defendant be acting “under color of any statute,
ordinance, regulation, custom, or usage of any State or
Territory.” 42 U.S.C. § 1983. Accordingly, for
Defendants who are not federal officers or acting under color
of law-and accordingly are not subject to Bivens or
§ 1983-the Court must have diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
upon the information alleged in both complaints and the
Plaintiff's objections to the R&R, the following
Defendants are not federal officers and were not otherwise
acting under color of law: (1) Robert C. Stone; (2) Joseph
Brody Cordell; (3) the Hospice of the Eastern Panhandle; (4)
Kris Wiebold; (5) Janie Wiebold; and (6) Anthony Morgan.
Accordingly, subject matter jurisdiction is only proper as to
those Defendants if the amount in controversy exceeds $75,
000 and there is complete diversity of citizenship, pursuant
to 28 U.S.C. § 1332. In this case, the Plaintiff is a
West Virginia resident. Accordingly, diversity is destroyed
by any Defendant who is also a West Virginia resident. Based
upon the addresses provided by the Plaintiff, the Court finds
that the following Defendants are West Virginia residents:
(1) Robert C. Stone; (2) Joseph Brody Cordell; (3) the
Hospice of the Eastern Panhandle; (4) Kris Wiebold; (5) Janie
Wiebold; and (6) Anthony Morgan. Although the Plaintiff
contests that Kris and Janie Wiebold are West Virginia
residents, stating in her objections that they may live in
either West Virginia or Hawaii [ECF No. 16 at 55], the Court
is mindful that “the burden of persuasion for
establishing diversity jurisdiction, of course, remains on
the party asserting it.” Hertz Corp. v.
Friend, 599 U.S. 77, 96 (2010). When challenged, the
party must support its allegation “by competent
proof.” Id. Without such proof, the Court
finds that there is no diversity jurisdiction.
the Court hereby ORDERS that all claims
against Robert C. Stone, Joseph Brody Cordell, the Hospice of
the Eastern Panhandle, Kris Wiebold, Janie Wiebold and
Anthony Morgan are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
Lack of ...