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Burch v. Murphy

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

February 26, 2018

DENNIS BURCH and The Class of Similarly Situated Persons Being Those State of West Virginia Prisoners Serving a Sentence of Life with the Possibility of Parole for a Crime Committed Before July 10, 1997, Plaintiffs,
v.
BENITA MURPHY, Chairperson, West Virginia Parole Board, MICHAEL TRUPO, CAROLE B. GREENE, and PEGGY POPE, Members, West Virginia Parole Board all in their official capacities, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         This civil action is assigned to the Honorable Thomas E. Johnston, 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).

         THE PLAINTIFF'S COMPLAINT AND MOTIONS

         On June 16, 2017, the Clerk's Office received and docketed a Complaint under 42 U.S.C. § 1983, filed by Dennis Burch (“Burch”), a West Virginia state prisoner who is incarcerated at the Huttonsville Correctional Center, in Huttonsville, West Virginia.[1] Also pending is Burch's Application to Proceed Without Prepayment of Fees and Costs (ECF No. 1), a Motion for Appointment of Counsel (ECF No. 4), and a Motion for Certification of the Class (ECF No. 5).

         The Complaint, which Burch seeks to file on behalf of all West Virginia state prisoners who are serving a life with mercy sentence[2] for a crime committed before July 10, 1997, challenges the constitutionality of the retroactive application of West Virginia Code § 62-12-13(e) (“the parole review statute”) to such prisoners. Before July 10, 1997, the parole review statute, which was then codified in West Virginia Code § 62-12-13(a)(5), provided that “the [Parole] [B]oard shall at least once a year reconsider and review the case of every prisoner so eligible.” W.Va. Code § 62-12-13(a)(5) (1988) (Emphasis added). However, on July 10, 1997, that section was amended to state in pertinent part: “the board may reconsider and review parole eligibility within three years following the denial of parole of a person serving a life sentence with the possibility of parole.” (hereinafter “the three year set-off”).[3] W.Va. Code § 62-12-13(a)(5) (1997) (Emphasis added). This section was re-codified as W.Va. Code § 62-12-13(e) in 1999, and was again amended in 2015. Nonetheless, the applicable language concerning the three-year set-off remains the same as that quoted above. The amended statute has been applied to all prisoners serving life with mercy sentences.

         Burch's Complaint asserts that the retroactive application of the 1997 amended statute to his 1996 crime[4], and those of all other prisoners with life with mercy sentences imposed for crimes that occurred before the amendment, violates the Ex Post Facto Clause of the United States Constitution, Article I, § 10. As his requested relief, Burch seeks a declaratory judgment that the retroactive application of the three-year set-off provision to the class of life with mercy inmates who committed their crimes before July 10, 1997 violates the federal ex post facto clause. He further seeks an injunction requiring the Parole Board to hold annual parole hearings for such inmates and to grant any other relief the court deems appropriate. (ECF No. 2 at 9).

         Burch has also filed a motion for class certification, requesting that the court certify this as a class action under Rule 23(b)(2) on behalf of a class of similarly situated persons, that being those West Virginia state prisoners serving a life with mercy sentence for a crime committed before July 10, 1997. (ECF No. 5). Burch has also filed a Motion for Appointment of Counsel (ECF No. 4), in which he asserts that this matter presents exceptional circumstances warranting the court to appoint counsel to represent him and the class.

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B), the court is obliged to screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss the case 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). Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A. This screening is done prior to consideration of an Application to Proceed without Prepayment of Fees and Costs, and notwithstanding the payment of any filing fee. 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).

         Pro se complaints are held to less stringent standards than those drafted by attorneys, and the court is obliged to construe liberally such complaints. However, 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 555.

         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.

29 S.Ct. at 1949-50.

         Because Burch's Complaint fails to state a claim upon which relief can be granted, the defendants have not been served with process and should not be required to appear or defend this matter. Likewise, Burch's Motion for Appointment of Counsel (ECF No. 4) ...


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