United States District Court, S.D. West Virginia, Bluefield
JACK E. VANCE, Plaintiff,
WEST VIRGINIA STATE POLICE South Charleston, West Virginia Defendant.
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
the court is plaintiff's complaint against the South
Charleston department of the West Virginia State Police
(“WVSP”), alleging their failure to properly
investigate and arrest William Lightner. ECF Nos. 2, 3. By
Standing Order, the matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B). On
November 13, 2017, the magistrate judge submitted his
PF&R, in which he recommended that the district court
deny plaintiff's application to proceed without
prepayment of fees and costs, (ECF No. 1), and dismiss
plaintiff's complaint, (ECF Nos. 2, 3). See ECF
accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Aboulhosn's Findings and Recommendation. The failure to
file such objections constitutes a waiver of the right to a
de novo review by this court. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989). Moreover, this court need not
conduct a de novo review when a party “makes general
and conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
December 8, 2017, the court granted plaintiff's motion
for an extension of time to file objections, giving him until
December 27, 2017 to do so. ECF No. 11. On December 26, 2017,
defendant filed his objections. ECF No. 12. Because
plaintiff's objections are without merit, the court
adopts the findings of the magistrate judge and dismisses
April 2005, Jack Vance was charged with Second Degree Sexual
Assault and Third Degree Sexual Assault. Vance was released
on bond pending the grand jury proceedings. A grand jury in
Pocahontas County, West Virginia returned an indictment
charging Vance with 87 counts of Third Degree Sexual Assault
and two counts of Second Degree Sexual Assault. Vance then
“absconded” with the alleged victim to Virginia.
See Vance v. W. Virginia State Police Pocahontas Cty.
Detachment, No. CV 1:16-10725, 2017 WL 8048339, at *1
(S.D. W.Va. Nov. 13, 2017), report and recommendation
adopted, No. CV 1:16-10725, 2018 WL 1129372
(“Pocahontas Action”). On September 2, 2005, bail
bondsman, William Lightner located plaintiff in a hotel in
Harrisonburg, Virginia and returned him to West Virginia
where he was detained at Tygart Valley Regional Jail. ECF No.
12 at pp. 1-2.
the pending state charges, Vance pled guilty to five counts
of Third Degree Sexual Assault and was sentenced to an
indeterminate term of one to five years on each count to run
consecutively. Moreover, by fleeing across state lines with
his victim, Vance was federally indicted in the Northern
District of West Virginia of (1) traveling in interstate
commerce to engage in a sexual act with a juvenile in
violation of 18 U.S.C. § 2423(b) (Count One), and (2)
transporting a minor in interstate commerce with intent to
engage in sexual activity in violation of 18 U.S.C. §
2423(a) (Count Two). Vance pled guilty to both counts and was
sentenced to two concurrent 87-month terms of imprisonment.
See Pocahontas Action, at *2.
complaint argues that the WVSP violated plaintiff's due
process rights by failing to arrest Lightner. Lightner
allegedly retrieved Vance from Virginia without licensure
“to do Bail Bondman or Bounty Hunting” within the
Commonwealth. ECF No. 2 at p.3. As a result, Vance claims
that he was unlawfully kidnapped by Lightner when he was
retrieved in Virginia and returned to West Virginia.
becoming aware of Lightner's lack of licensure in
February 2016--more than a decade after his arrest and state
conviction--Vance attempted to convey this information to
WVSP State Trooper, Colonel Smithers by mail and through
telephone calls made by his mother. ECF No. 2 at p.3. These
communications requested that Smithers arrest Lightner for
kidnapping him. Vance alleges Smithers failed to take any
action. As relief for failing to investigate Vance's
kidnapping complaint and failure to arrest Lighter, Vance
seeks monetary damages from the WVSP in the amount of $2,
000, 000. ECF No. 3 at pp. 4-5, 8-10.
THE PF&R RECOMMENDED DISMISSAL FOR FAILURE TO STATE A
assuming the WSVP failed to take action regarding
plaintiff's kidnapping allegations, the magistrate judge
recommended dismissal due to plaintiff's failure to state
a claim. First, plaintiff did not allege a basis for federal
jurisdiction under either diversity or federal subject matter
jurisdiction. ECF No. 8 at pp. 4-6. Second, the magistrate
judge determined that the complaint fails to comply with the
pleading standard of Federal Rule of Procedure 8(a)(2).
Id. at pp. 6-7.
extends his contentions against the WVSP indicating that
Smithers, through his secretary, affirmatively told
plaintiff's mother that Lightner had not broken any laws
and that he has “order[ed] his State Troopers”
not to arrest Lightner. ECF No. 12 at p.1. Plaintiff also
alleges a broader conspiracy where “the W.Va State
Police Colonials has [sic] ordered their State
Troopers” to cover up Lightner's kidnapping. ECF
No. 14 at p.4.