United States District Court, N.D. West Virginia
JOHNNY D. FLOYD, SR., Plaintiff,
CORPORAL/SERGEANT MATTHEW LOVE, Defendant.
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
STANDARD OF REVIEW
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.
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.
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
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 ...