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Floyd v. Love

United States District Court, N.D. West Virginia

February 20, 2018

JOHNNY D. FLOYD, SR., Plaintiff,
v.
CORPORAL/SERGEANT MATTHEW LOVE, Defendant.

          Stamp, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         This matter is assigned to the Honorable Frederick P. Stamp, Jr., United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of a proposed recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)B) and LR PL P 2. Pending before the court is the Plaintiff's civil rights complaint filed pursuant to 42 U.S.C. 1983.

         I. BACKGROUND[1]

         On November 1, 2016, the Plaintiff was named in a three-count indictment. Count One charged the Plaintiff with possession with intent to distribute cocaine base and heroin in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). Count Two charged the Plaintiff with maintaining drug involved premises in violation of 21 U.S.C. § 856(a)(1). Count Three charged the Plaintiff with possession of a firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). On January 27, 2017, the Plaintiff entered a plea of guilty to Count One. On May 31, 2017, he was sentenced to a term of 120 months confinement, with credit for time served since December 21, 2015; three years supervised release; and a $100 special assessment. The Plaintiff did not appeal his conviction, nor has he filed a Motion pursuant to 28 U.S.C. § 2255.

         II. COMPLAINT

         The Plaintiff's complaint alleges misconduct against the Defendant, Corporal Love, who according to the PSR is a member of the Marion County Sheriff's Department. The Plaintiff alleges that the misconduct of the Defendant resulted in his federal indictment, and the necessity of his pleading guilty. The complaint charges the Defendant with defamation of his character in violation of the Fifth and Fourteenth Amendments. For relief, the Plaintiff seeks monetary damages in the amount of $250, 000 and injunctive relief by ordering “Defamation/title ‘crackdealer' be removed.” ECF No. 1 at 11.[2]

         III. STANDARD OF REVIEW

         Because the Plaintiff 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. § 1915(e)(2), 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. Complaints which are frivolous or malicious must be dismissed. Id.

         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). However, the Court must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint filed in forma pauperis which fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are “indisputably meritless, ” Id. at 327 or when the claims rely on factual allegations which are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). As discussed more fully below, the plaintiff's request for damages against the defendants has no chance for success. Therefore, the undersigned recommends that this case be dismissed.

         IV. ANALYSIS

         This case should be dismissed as frivolous because the Plaintiff has no chance of success. In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), the United States Supreme Court found:

in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus . . .

Heck at 487 (footnote omitted). Moreover, the Supreme Court stated that one reason for imposing such a requirement is to prevent a convicted criminal defendant from collaterally attacking his criminal ...


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