United States District Court, N.D. West Virginia
ULYSSES A. BELLAMY, Plaintiff,
DIANA R. MILLER, AWP; JOHN DOE, President of Glenville State College; STEVE FINCHAM, CPS; SHANNO SHIFLET, Defendants.
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE
August 28, 2017, the Plaintiff filed this action under 42
U.S.C. § 1983 against the above-named Defendants. In
addition, the Plaintiff filed a Motion for Leave to Proceed
in forma pauperis, together with a Prisoner Trust
Fund Account Statement. On August 29, 2017, former United
States Magistrate Judge James E. Seibert filed a Report and
Recommendation in which he recommended that the
Plaintiff's request to proceed without prepayment of fees
be denied because the Plaintiff had enough funds to pay the
$400 filing fee. On September 8, 2017, the Plaintiff paid the
$400 filing fee. On October 3, 2017, the Court adopted the
Report and Recommendation while observing that the Plaintiff
had tendered full payment of the filing fee.
October 30, 2017, Magistrate Judge Seibert conducted a
preliminary review of this matter and determined that summary
dismissal was not warranted. Because the Plaintiff was not
proceeding in forma pauperis, he was not entitled to
service of process by the United States Marshal Service.
Instead, the Plaintiff was responsible for obtaining service
on his own in compliance with Rule 4 of the Federal Rules of
Civil Procedure. Therefore, Magistrate Judge Seibert entered
an order advising the Plaintiff of the requirements of Rule 4
and establishing the deadline for service as November 27,
2017. In addition, the order directed the Clerk of Court to
issue 21 day summonses for the named defendants and forward
those forms to the Plaintiff. The Plaintiff was afforded 30
days from entry of the order to provide the Court with the
actual name of the President of Glenville State College so
that a proper summons could be issued. ECF No. 13. On
November 9, 2017, the Plaintiff notified the Court that he
was “dropping” the President of Glenville State
College as a defendant. In addition, he noted that on October
8, 2017, he sent the remaining Defendants each a
“Notice of Lawsuit and Request to Waive Service of a
Summons” pursuant to Rule 4(d) of the Federal Rules of
Civil Procedure. ECF No. 16.
January 22, 2018, Magistrate Judge Seibert entered an Order
directing the Plaintiff to show cause why this case should
not be dismissed because it had been 147 days since the
complaint was filed, and he had not provided proof of
service. ECF No. 17. In response, the Plaintiff established
that on November 8, 2017, he sent each Defendant a
“Notice of Lawsuit and Request to Waive Service of a
Summons” with an appended Rule 4 waiver form via
first-class mail. The Plaintiff indicated that no Defendant
had returned the form, but it appeared that the Defendants
did receive the Notice and Request because AIG sent him a
letter dated November 16, 2017, indicating that they received
his suit and assigned the matter to John Fuller who would
defend the Division of Corrections and any employees named in
the complaint. ECF No. 22-9.
February 7, 2018, the pro se law clerk contacted counsel to
determine whether he was authorized to accept service on
behalf of his clients. Jennifer Tully, another member of Mr.
Fuller's firm advised that she had been authorized to
accept service of process on behalf of Defendants Diana R.
Miller, Steve Fincham and Shannon Shiflet. Accordingly, the
Clerk of Court was directed to prepare a new summons for each
of these Defendants in care of Bailey and Wyant, PLLC, 500
Virginia Street, East, Suite 600, Charleston, WV 25301. In
addition, when the summonses were ready, the Clerk was
directed to contact Ms. Tulley, who would have an employee
authorized to accept service come to the Clerk's Office
to execute an Acceptance of Service for docketing. ECF No.
23. The summonses were reissued on February 14, 2018 [ECF No.
24], and on February 15, 2018, service of the summons and
complaint was accepted on behalf of Diana R. Miller, Stephen
Fincham and Shannon Shiflet by Crystal Johnson, an employee
of Bailey & Wyant, PLLC On March 5, 2018, the Defendants
filed a Motion to Dismiss. ECF No. 27. A Roseboro
Notice was issued on March 6, 2018. ECF No. 29. On April 30,
2018, the Plaintiff filed a Response.
time he filed his complaint, the Plaintiff was a state inmate
housed at Huttonsville Correctional Center. With respect to
Diana Miller, he alleges that she violated his Eighth and
Fourteenth Amendment rights by inflicting cruel and unusual
punishment and depriving him of life, liberty, property and
equal protection of the law. In support of those allegations,
he notes that he was placed in segregation and then received
a letter from Glenville State College warning him that his
future eligibility to receive federal financial aid could be
Plaintiff alleges that he never took the test everybody else
took before attending Glenville State College but was being
“charged of using federal grant money.” ECF No. 1
at 8. The Plaintiff also notes that he was the only person
taking classes without testing and the only person locked up
in segregation using federal grant money without being
present to sign up for the next term. He continues that
nothing was provided for the Plaintiff financially such as
“paper, pen, pencils, folders, etc.” Id.
Finally, upon receiving notice that the Federal Student Aid,
an office of the U.S. Department of Education, could not
locate any federal grant and loan records in the National
Student Loan Data System using the Social Security Number he
provided [ECF No. 1-8], the Plaintiff concluded that Diana
Miller, who he indicates is in charge of the education
classes, is somehow involved in embezzling, forgery, and
“arbitrary dictatorship.” ECF No. 1 at 8.
respect to Defendant, Steve Fincham, he alleges that he
violated his First, Fourth, Eighth and Fourteenth Amendment
rights. In support of this allegation, the Plaintiff
indicates in retaliation for seeking information against
Defendant Miller, he repeatedly has been charged $0.47 to
send mail, when the mailroom only spends $0.46 to send out
his mail. In addition, he indicates further retaliation when
mail from the Federal Student Aid office, which he claims is
legal mail, was opened. ECF No. 1 at 9.
with respect to Shannon Shiflet, the Plaintiff alleges that
she also violated his First, Fourth, Eighth and Fourteenth
Amendment rights by aiding and abetting in not delivering his
legal mail and covering up the fraudulent action of Diana
Miller by tampering with mail. In support of this allegation,
the Plaintiff has attached a legal log book which shows that
he was only given mail from the Commissioner's office.
Again, it appears that he is alleging that mail from the
Federal Student Aid Office is legal mail.
relief, the Plaintiff is requesting $1, 000, 000 in damages
from Defendant Miller and $40, 000 each from Defendants
Fincham and Shiflet.
The Defendants' Motion to Dismiss
response, the Defendants contend that the exhibits attached
to the Plaintiff's complaint make it clear that he does
not have any grants or student loans, and therefore,
Defendant Miller could not have possibly stolen the same. In
addition, they argue that the Plaintiff appears to have
misunderstood a “form letter” sent to warn all