United States District Court, S.D. West Virginia, Charleston
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,
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
L. Tinsley United States Magistrate Judge.
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).
PLAINTIFF'S COMPLAINT AND MOTIONS
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. 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).
Complaint, which Burch seeks to file on behalf of all West
Virginia state prisoners who are serving a life with mercy
sentence 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”). 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.
Complaint asserts that the retroactive application of the
1997 amended statute to his 1996 crime, 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).
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.
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).
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
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
29 S.Ct. at 1949-50.
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) ...