United States District Court, S.D. West Virginia
JACK E. VANCE, Plaintiff,
LLOYD WILLIAM LIGHTNER, SR., Defendant.
MEMORANDUM OPINION AND ORDER
A. FABER SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
United States Court of Appeals for the Fourth Circuit
summarized Vance's underlying criminal conduct as
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
United States v. Vance, 290 Fed.Appx. 532, 533 (4th
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.
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
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.
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 ...