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Varney v. Hunter

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

April 9, 2018

LOWELL MASON VARNEY, Plaintiff,
v.
EDDIE HUNTER, Sheriff, LOGAN COUNTY SHERIFF'S DEPARTMENT, and LOGAN COUNTY PROSECUTOR'S OFFICE, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley, United States Magistrate Judge.

         On August 28, 2015, the plaintiff, Lowell Mason Varney, an inmate incarcerated at the Maury Correctional Institution in Maury, North Carolina, filed a “Notice of Intention to File Claim, ” which has been construed as a Complaint under 42 U.S.C. § 1983 (ECF No. 1). On September 25, 2015, the plaintiff filed the form section 1983 Complaint used in this court (ECF No. 5), which is considered the operative document herein, and an Application to Proceed Without Prepayment of Fees and Costs (ECF No. 4). This is the third Complaint filed by the plaintiff in this federal court since October of 2012.1 This matter is assigned to the Honorable Thomas E. Johnston, Chief 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).

         1 The plaintiff's two prior cases were brought against Logan County Family Court officials concerning child custody proceedings related to the plaintiff's requests for visitation with his minor son. Both cases were dismissed under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted. See Varney v. Harwood, No. 2:12-cv07171 (dismissed on Jan. 3, 2013) and Varney v. W.Va. Family Ct., No. 2:13-cv-07177 (dismissed on Aug. 7, 2013).

         STANDARD OF REVIEW

         Pursuant to the provisions of 28 U.S.C. § 1915A, the court is obliged to screen each case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. On review, the court 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. This screening is done prior to consideration of the Application to Proceed without Prepayment of Fees and Costs. 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.

129 S.Ct. at 1949-50.

         ANALYSIS

         In the instant matter, the plaintiff alleges that the defendants have ignored his requests for an investigation and prosecution of his allegations of child molestation by family members more than 30 years ago. The plaintiff alleges that Sheriff Eddie Hunter is an old family friend and that is why he will not investigate these claims. The plaintiff seeks monetary relief and that an investigation of his claim be ordered.

         However, the plaintiff's Complaint fails to state a claim upon which relief can be granted and the defendants are entitled to qualified immunity thereon because the defendants have no constitutional duty to investigate or prosecute the plaintiff's claims of criminal conduct by private actors. A plaintiff in a section 1983 case must demonstrate that a state actor deprived him of a right secured by the Constitution and laws of the United States. See Martinez v. California, 444 U.S. 277, 284 (1980).

         “The Due Process Clause of the Fourteenth Amendment provides that ‘[n]o State . . . shall deprive any person of life, liberty, or property, without due process of law.'” DeShaney v. Winnebago Cty. Dep't of Soc. Serv., 489 U.S. 189, 194 (1989). Nevertheless, the Due Process Clause does not “require[] the State to protect the life, liberty and property of its citizens against invasion by private actors.” Id. at 195. Thus, “it has been held that police officers do not have an affirmative duty to investigate crimes in a particular manner or to protect one citizen from another.” Brown v. San Bernadino Cty. Sheriff's Dep't, No. EDCV 13-00228-SVW (MLG), 2013 WL 1703059 (C.D. Cal. Feb. 6, 2013) (citing Gini v. Las Vegas ...


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