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Shelton v. Crookshank

United States District Court, N.D. West Virginia, Martinsburg

January 24, 2018

ANITA J SHELTON, and IMMOGENE WILLIAMS DANIELS, Plaintiffs,
v.
ROBERT BLANE CROOKSHANK et al, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE.

         Currently 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 pauperis.

         Pursuant 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).

         In this 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 reviewing.

         I. Background

         On 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.

         II. Discussion

         Because 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.

         A. Lack of Subject Matter Jurisdiction

         Pursuant 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.

         In so 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.

         Based 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.

         Accordingly, 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.

         B. Lack of ...


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