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Vance v. Lightner

United States District Court, S.D. West Virginia

February 5, 2019

JACK E. VANCE, Plaintiff,



         By Standing Order, the action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings of fact and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted his Findings and Recommendation (“PF&R”) to the court on November 13, 2017, in which he recommended that the court deny plaintiff's application to proceed without prepayment of fees and costs, dismiss plaintiff's complaints, and remove this matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days plus three mailing days in which to file any objections to Magistrate Judge Aboulhosn's Findings and Recommendations. On January 5, 2017, the court granted plaintiff's motion for an extension of time in which to file objections, giving him until December 27, 2017 to do so. On December 22, 2017, Vance filed objections. With respect to those objections, the court has conducted a de novo review.

         I. Background

         The United States Court of Appeals for the Fourth Circuit summarized Vance's underlying criminal conduct as follows:

Taken in the light most favorable to the Government, . . . the evidence presented at trial established the following facts. Vance began having an intimate, sexual relationship with Jane Doe in November 2002. At that time, Doe was thirteen years-old, while Vance was thirty-five. Doe documented her relationship with Vance by making notations in her calendar, which included descriptions of the couple's various sex acts. In the Spring of 2005, Doe's mother discovered Doe's calendar, and in April 2005, the Does filed a criminal complaint against Vance.
With criminal charges pending in West Virginia, Vance and Doe left the state for Virginia, where they planned to be married. This, Vance believed, would force West Virginia authorities to forego prosecuting him. On August 23, 2005, Vance drove himself and Doe to Harrisonburg, Virginia. Once in Harrisonburg, Vance checked into a motel, where Vance and Doe engaged in sexual intercourse. At the time of this trip, Doe was fifteen years-old.
Vance and Doe returned to West Virginia approximately ten days later, and shortly thereafter, Vance was indicted on [federal] charges.

United States v. Vance, 290 Fed.Appx. 532, 533 (4th Cir. 2008).

         After a jury trial in the United States District Court for the Northern District of West Virginia, Vance was convicted of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C.A. § 2423(b); and knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C.A. § 2423(a). See id. at 532-33. He was sentenced to a term of imprisonment of 87 months on each count of conviction, sentences to run concurrently. See id. The Bureau of Prisons' Inmate Locator indicates that Vance was released from federal custody on August 20, 2013.

         With respect to the state charges arising out of the conduct described above, on March 6, 2007, Vance pled guilty to five counts of Third Degree Sexual Assault pursuant to a plea agreement with the State. See ECF No. 8-1 at pp.4-5. He was sentenced to an indeterminate term of one to five years on each count to run consecutively. See id. at pp.7-8.

         Vance, currently incarcerated at Huttonsville Correctional Center in Moundsville, West Virginia, filed the instant complaint under 42 U.S.C. § 1983 against Lloyd William Lightner, Sr. According to Vance's allegations, Lightner, a bail bondsman licensed in West Virginia, was the person who retrieved Vance from Virginia and brought him back to West Virginia to face the state charges pending against him. Vance contends that Lightner's actions in this regard amounted to kidnapping because Lightner was not licensed as a bail bondsman in the Commonwealth of Virginia.

         II. Analysis

         Because liability under Section 1983 attaches only to conduct occurring under color of State law, Magistrate Judge Aboulhosn recommended dismissal of Vance's complaints against Lightner. Magistrate Judge Aboulhosn found that Vance's allegations did not suggest that Lightner was acting as a state actor when he traveled to Virginia and apprehended Vance. Private conduct constitutes State action only if it is “fairly ...

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