United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT U.S. MAGISTRATE JUDGE.
December 19, 2017, the pro se Plaintiff initiated
this case by filing a civil rights complaint against the
State of West Virginia pursuant to 42 U.S.C. § 1983.
Liberally construed, the Plaintiff is alleging the State of
West Virginia has twice filed the same charges against him,
which he says constitutes double jeopardy and is a violation
of his right to due process. On January 8, 2018, an order was
entered granting the Plaintiff leave to file without
prepayment of fees. This matter is before the undersigned for
an initial review and report and recommendation pursuant to
LR PL P 2 and 28 U.S.C. §1915(e).
THE PLAINTIFF'S CONTENTIONS
his complaint liberally, the Plaintiff alleges that in
December of 2016, he was arrested in Belmont County, Ohio
based on a warrant from Ohio County, West Virginia. The
Plaintiff alleges he was released on January 4, 2017, 30 days
after his arrest, and was never taken to West Virginia during
that time. Upon his release, he was told that the warrant
from Ohio County, West Virginia, which Plaintiff says was the
basis for him being held for 30 days, was still active, and
that if he were to go to West Virginia, he risked being
arrested. The Plaintiff allegedly asked a deputy what would
happen if he were to be pulled over in the state of Ohio. The
deputy reportedly told him that the officer who pulled him
over would see the warrant, check with Ohio County, West
Virginia to see if they were going to come get him, then
ultimately the officer would end up releasing him.
allegedly being told this, the Plaintiff says that in early
September of 2017, he was arrested at his home in Ohio
pursuant to the same warrant and was again taken to Belmont
County Jail in Belmont County, Ohio. Plaintiff alleges he
then appeared before a Judge in Ohio, at which time the
prosecutor told the Judge he was being held on the same
warrant as before, and asked the Judge to grant him asylum.
The Judge instead asked the prosecutor to find out from Ohio
County, West Virginia whether they intended to extradite the
Plaintiff. The Judge set a hearing date for four weeks later.
Plaintiff next says that four weeks later, he was served with
a requisition for a warrant from West Virginia.
Plaintiff contends that if an individual is released from
jail while being held on a detainer from another state, the
state that issued the warrant must drop the warrant.
Additionally, the Plaintiff argues that his being held for an
estimated 150 days total on two separate occasions violates
both his Fifth Amendment right to due process, and his
constitutional protection against double jeopardy. As a
result he is asking for an order from the Court stating that
the State of West Virginia must drop the charges against him,
and is seeking monetary damages in the amount of $1, 500, 000
for lost wages as well as pain and suffering.
STANDARD OF REVIEW
the Plaintiff is proceeding in forma pauperis, the
Court must review the complaint to determine whether it is
frivolous or malicious. Pursuant to 28 U.S.C. §
1915(e)(2), the Court is required to perform a judicial
review of cases brought in forma pauperis 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.
complaint is frivolous if it is without arguable merit either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). However, the Court must read pro se
allegations in a liberal fashion. Haines v. Kerner,
404 U.S. 519, 520 (1972). A complaint which fails to state a
claim is not automatically frivolous. See Neitzke at
328. Frivolity dismissals should only be ordered
when the legal theories are “indisputably meritless,
” or when the claims rely on factual allegations which
are “clearly baseless.” See Neitzke at
327 and Denton v. Hernandez, 504 U.S. 25, 32 (1992).
This includes claims in which the plaintiff has little or no
chance of success. See Estelle v. Gamble, 429 U.S.
97, 106 (1976).
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 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
U.S.C. §1983 provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was ...