United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
31, 2017, the pro se Plaintiff, who was then a
federal prisoner incarcerated at West Virginia's Central
Regional Jail, initiated this case by filing an action
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). ECF No. 1. On
that same date, the Plaintiff filed a motion to proceed
without prepayment of fees together with his Prisoner Trust
Account Report. ECF Nos. 2, 4. On August 23, 2017, the Court
entered an order granting the Plaintiff's motion. ECF No.
7. The Plaintiff paid the required initial partial filing fee
on September 5, 2017. This matter is now pending before the
undersigned for an initial review and Report and
Recommendation pursuant to LR PL P 2 and 28 U.S.C. §
Underlying Criminal Conviction in the Northern District of
West Virginia case number 3:14cr41.
22, 2014, in the United States District Court for the
Northern District of West Virginia, the Plaintiff was one of
two defendants named in a five-count indictment which
included a forfeiture allegation. On September 7, 2014,
Plaintiff signed a plea agreement by which he agreed to plead
guilty to Court Four of the indictment charging him with
distribution of a quantity of heroin, in violation of 21
U.S.C. §§ 841 (a)(1) and 841(b)(1)(C). ECF No.
The plea agreement included a forfeiture provision in the
amount of $16, 000. On September 15, 2014, Plaintiff entered
a guilty plea pursuant to the terms of the agreement. ECF No.
44. On December 17, 2014, the District Court entered Judgment
which sentenced Plaintiff to 63 months of incarceration, with
credit for time served since August 15, 2014, followed by
three years of supervised release. Id. at 2.
The Bivens Complaint.
complaint is sparse at best. However, it appears that
Plaintiff is complaining that he was removed from a halfway
house program and placed in the regional jail before he had a
disciplinary hearing. The complaint alleges three grounds for
relief: (1) “Violation of due process”; (2)
“Discrimination”; and (3) “Eighth
Amendment”. ECF No. 1 at 7 - 8. For relief, the
Plaintiff asks to be placed in another halfway house
programand be compensated for loss of wages and
funds spent while at the regional jail.
Standard of Review
Pro Se Litigants.
Petitioner is a prisoner seeking redress from a governmental
entity or employee, the Court must review the complaint to
determine whether it is frivolous or malicious. Pursuant to
28 U.S.C. § 1915A(b), the Court is required to perform a
judicial review of certain suits brought by prisoners and
must dismiss a case at any time if the Court determines that
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
must read pro se allegations in a liberal fashion.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
a complaint is frivolous if it is without arguable merit
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989) (superseded by statute). The Supreme
Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the
filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not
initiate because of the costs of bringing suit and because of
the threat of sanctions for bringing vexatious suits under
Federal Rule of Civil Procedure 11. To this end, the statute
accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual