United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE
matter is before the court for initial screening pursuant to
28 U.S.C. §§ 1915A and 1915(e)(2)(B) and
consideration of the following motions or other requests
filed by the plaintiff the Application to Proceed Without
Prepayment of Fees and Costs [ECF No. l], the Motion for
Appointment of Counsel [ECF No. 4], and the Motion for
Certification of the Class [ECF No. 5]. By Standing Order,
this matter was referred to the Honorable Dwane L. Tinsley,
United States Magistrate Judge for submission of proposed
findings and a recommendation for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B). For reasons appearing to the
Court, it is hereby ORDERED that the
referral of this matter to the Magistrate Judge is
24, 2017, the Clerk's Office received and docketed a
Complaint under 42 U.S.C. § 1983, filed by Robert Bragg,
a West Virginia state prisoner who is presently incarcerated
at the Huttonsville Correctional Center in Huttonsville, West
Virginia. Compl. [ECF No. 2]. Bragg's Complaint states
that, on September 21, 2016, in conjunction with his arrest
on controlled substance offenses, officials of the Nicholas
County Sheriffs Department seized various items of personal
property from his residence in Mt. Nebo, Nicholas County,
West Virginia. Id. at 8. The Complaint further
indicates that the Nicholas County officials named as
defendants herein subsequently filed a Petition for
Forfeiture in the Circuit Court of Nicholas County seeking
the forfeiture of Bragg's personal property pursuant to
the WVCFA because such property constituted monies,
negotiable instruments, and vehicles as set forth in the Act.
Id. at 8-10. The Petition for Forfeiture is attached
to the Complaint as Exhibit-A. See Vet. Forfeiture
[ECF No. 2-2].
Complaint asserts that the defendants "are applying a
state law to him that violates the United States
Constitution, and is therefore void and unenforceable."
Compl. 4. The Complaint contains two "Counts" in
which Bragg claims that the West Virginia Contraband
Forfeiture Act ("WVCFA"), W.Va. Code §§
60A-7-701 et seq., violates the Fourth and Fifth
Amendments to the United States Constitution, as applied to
the State through the Fourteenth Amendment.
Count One, Bragg alleges that the WVCFA violates the Fourth
Amendment's prohibition against unreasonable searches and
seizures of property except by determination of probable
cause found by a neutral and detached person. Id. at
11. The West Virginia Code allows "[a]ny member of the
State Police, any sheriff, any deputy sheriff, any municipal
police officer and any campus police officer" to
"[m]ake seizures of property pursuant to [the Uniform
Controlled Substances Act]." W.Va. Code §
60-A-5-50l(a). Under the WVCFA, such persons may seize
"property subject to forfeiture by the provisions of
this article . . . without process if: . . . [they have]
probable cause to believe that the property was used or
intended for use in violation of this chapter." W.Va.
Code § 60A-7-704(b)(4). The Complaint alleges that,
because the WVFCA provides that proceeds from forfeited items
go to (1) the office of the prosecuting attorney, and (2) a
special law-enforcement investigation fund, W.Va. Code §
60A-7-706(a), it "allows for persons with an interest in
the property to determine probable cause whether said
property is deemed contraband and then seize the property
said person found to be contraband." Compl. 11.
Count Two, Bragg asserts that the WVCFA violates the Takings
Clause of the Fifth Amendment, which prohibits the taking of
private property for public use without just compensation.
Id. Bragg requests that the court declare the WVCFA
void and unenforceable and order an injunction prohibiting
the defendants from acting pursuant thereto.
civil forfeiture proceeding is a matter of public record, I
take judicial notice of the fact that an Order of Settlement
was entered in that matter on October 12, 2017. See
Order of Settlement, No. 0492, at 8, Civ. Action No. 16-P-55
(Cir. Ct. Nicholas Cty., W.Va. Oct. 12, 2017). The Order of
Settlement indicates that, on September 19, 2017, Bragg
entered a guilty plea to the drug charges in Nicholas County,
pursuant to a written plea agreement, in which he also agreed
to the forfeiture of his seized assets at issue in this case.
See Id. at 10.
has filed (1) a Motion for Certification of Class [ECF No. 5]
requesting that the court certify this matter as a class
action under Rule 23(b)(2) on behalf of a class of all West
Virginia persons whose property was seized under the WVCFA;
and (2) 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 putative class.
Standards of Review
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. 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. 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 is one that is based on an
indisputably meritless legal theory. Denton v.
Hernandez, 504 U.S. 25, 31-32 (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, 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." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007) 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.
Supreme Court elaborated on its holding in Twombly
in Ashcroft v. Iqbal, 556 U.S. 662 (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 (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 ...