United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DISMISSING
THE PLAINTIFF'S COMPLAINT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, a resident of Ohio, filed a
complaint against the state of West Virginia pursuant to 42
U.S.C. § 1983. ECF No. 1. In his complaint, the
plaintiff alleges that he was arrested in Belmont County,
Ohio, based on a warrant from Ohio County, West Virginia. ECF
No. 1-1 at 2. The plaintiff was held for thirty days and
released, but told that the warrant was still active and
warned not to go to West Virginia. ECF No. 1-1 at 2. He was
later arrested in Belmont County under the same warrant and
held for 120 days before being released. ECF No. 1-1 at 2.
The plaintiff contends that this combination of arrests
violated his due process rights and his constitutional
protection against double jeopardy. ECF No. 1-1 at 2. The
plaintiff argues that “when a person is released from
jail on a detainer from a demanding state the demanding state
must drop the warrant.” ECF No. 1-1 at 2. For relief,
the plaintiff seeks to have Ohio County, West Virginia drop
the arrest warrant and to be awarded $1, 500, 000 for lost
wages and pain and suffering. ECF No. 1 at 9.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil
Procedure 7.02(c), this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge
entered a report and recommendation. ECF No. 11. In his
recommendation, the magistrate judge found that under §
1983 the plaintiff must allege that a person acting under
color of state law violated the plaintiff's rights
guaranteed by the Constitution or federal law. ECF No. 11 at
4. However, under § 1983, the state of West Virginia is
not a “person.” ECF No. 11 at 4. Accordingly, the
magistrate judge found that the complaint fails to state a
claim and should be dismissed with prejudice. ECF No. 11 at
plaintiff did not file objections to the report and
recommendation of the magistrate judge. For the reasons set
forth below, the report and recommendation of the magistrate
judge (ECF No. 11) is affirmed and adopted. Therefore, the
complaint (ECF No. 1) is dismissed.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because no objections were filed, all findings and
recommendations will be upheld unless they are “clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A). As the Supreme Court of the United States
stated in United States v. United States Gypsum Co.,
“a finding is ‘clearly erroneous' when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge properly reviewed the plaintiff's
complaint to determine whether it was frivolous. A complaint
is frivolous if “it lacks an arguable basis either in
law or fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). A complaint is also frivolous if the
plaintiff has little or no chance of success. See Estelle
v. Gamble, 429 U.S. 97, 106 (1976).
civil action, the magistrate judge correctly held the pro
se complaint to less stringent standards than those
complaints drafted by attorneys. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, even
liberally construed, the magistrate judge correctly
determined that the plaintiff's complaint fails to state
a claim because it does not name a proper defendant. ECF No.
11 at 4. As the magistrate judge noted, a state cannot be
sued under § 1983 because it is not a
“person.” ECF No. 11 at 4 (citing Will v.
Michigan Dep't Of State Police, 491 U.S. 58 (1989)).
Thus, the plaintiff cannot bring a § 1983 against the
State of West Virginia.
this Court finds that the findings of the magistrate are not
clearly erroneous. Accordingly, the report and recommendation
is affirmed and adopted in its entirety.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 11) is AFFIRMED and ADOPTED.
Accordingly, the plaintiff's complaint (ECF No. 1) is
hereby DISMISSED WITH PREJUDICE. Further, it is ORDERED that
this civil action be DISMISSED and STRICKEN from the active
docket of this Court.
this Court finds that the plaintiff was properly advised by
the magistrate judge that failure to timely object to the
report and recommendation in this action would result in a
waiver of appellate rights. Because the plaintiff has failed
to object, he has waived his right to seek appellate ...