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Bragg v. Sweeney

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

March 13, 2018

ROBERT BRAGG, Plaintiff,
JONATHAN SWEENEY, et al., Defendants.



         This 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 For reasons appearing to the Court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN.

         I. Background

         On July 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].

         Bragg's 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.

         In 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.

         In 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.

         As the 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.

         Bragg 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.

         II. Standards 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. 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).

         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, 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.

         The 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 ...

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