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Bellamy v. Miller

United States District Court, N.D. West Virginia

February 5, 2019

ULYSSES A. BELLAMY, Plaintiff,
v.
DIANA R. MILLER, AWP; JOHN DOE, President of Glenville State College; STEVE FINCHAM, CPS; SHANNO SHIFLET, Defendants.

          Bailey Judge

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         On 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.

         On 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.

         On 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.

         On 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.

         II. The Pleadings

         A. The Complaint

         At the 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[1] and then received a letter from Glenville State College warning him that his future eligibility to receive federal financial aid could be affected[2].

         The 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.

         With 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.

         Finally, 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.

         For relief, the Plaintiff is requesting $1, 000, 000 in damages from Defendant Miller and $40, 000 each from Defendants Fincham and Shiflet.

         B. The Defendants' Motion to Dismiss

         In 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 ...


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