United States District Court, S.D. West Virginia
DAVID N. DRESSLER, Plaintiff,
JEFFERSON COUNTY, WV, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE.
matter is assigned to the Honorable John T. Copenhaver, Jr.,
Senior United States District Judge, and it is referred to
the undersigned United States Magistrate Judge for submission
of proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the
court are a Motion to Dismiss filed by Gina M. Groh (ECF No.
9); a Motion to Dismiss filed by the State of West Virginia,
Supreme Court of Appeals of West Virginia, Natalie E. Tenant,
Elizabeth A. Summit, Harlan D. Heil, West Virginia Division
of Motor Vehicles, Andrea J. Hinerman, West Virginia State
Police, and West Virginia Lawyer Disciplinary Board
(hereinafter “the State Defendants”) (ECF No.
12); a Motion to Dismiss filed by John K. Dorsey and George
M. Manning (ECF No. 14); and a second Motion to Dismiss filed
by George M. Manning (ECF No. 15).
matter was initially filed by the pro se plaintiff
in the United States District Court for the Northern District
of West Virginia on June 26, 2018. The plaintiff paid the
applicable $400 filing fee in that court. Then, on July 5,
2018, the Honorable Irene M. Keeley, United States District
Judge for the Northern District of West Virginia, transferred
the matter to this court, pursuant to 28 U.S.C. §
455(a), due to a perceived conflict of interest because the
Honorable Gina M. Groh, Chief Judge of the United States
District Court for the Northern District of West Virginia, is
named as a defendant therein, along with her husband, a
Jefferson County Prosecuting Attorney.
noted in the accompanying Order denying the plaintiff's
Motion to Recall/Change Venue, many of the other defendants,
i.e. the State Defendants, reside in Charleston,
West Virginia, so venue is appropriate in this Court. Due to
an administrative oversight, however, upon the transfer of
this matter, the Clerk of this Court failed to issue the
summonses. As set forth infra, this clerical
oversight should not be held against the pro se
plaintiff and the court could find good cause for the failure
to serve the summonses within the Rule 4(m) period.
plaintiff's Complaint, which is not a model of clarity,
names 26 defendants consisting of county, state, and federal
officials or agencies who appear to have somehow been
involved in proceedings that resulted in the denial of
licenses or permits to the plaintiff. (ECF No. 1,
passim). Specifically, as noted by the State
Defendants in their Memorandum of Law in support of their
Motion to Dismiss, the Complaint appears to allege that the
various defendants have wrongfully maintained and provided
false records concerning the plaintiff's criminal
history; convicted him of driving without a license; denied
him private investigator and bounty hunter licenses; denied
his right to carry a concealed weapon; and otherwise engaged
in fraudulent behavior. (ECF No. 1 at 9-10; ECF No. 13 at 2).
review of the Complaint further demonstrates that the
plaintiff contends that this Court has subject matter
jurisdiction under 28 U.S.C. § 1331 because the matter
allegedly involves a federal question. However, the Complaint
further asserts only that the defendants violated various
federal criminal statutes, including 18 U.S.C. § 1031
(Major Fraud Against the United States); 18 U.S.C. §
1038 (False Information and Hoaxes); 28 U.S.C. 4101
(Definitions); 18 U.S.C. § 1349 (Attempt and
Conspiracy); 18 U.S.C. § 1341 (Frauds and Swindles); 18
U.S.C. § 1503 (Influencing or Injuring Officer or Juror
Generally); 18 U.S.C. § 371 (Conspiracy to Commit
Offenses to Defraud United States); and 18 U.S.C. 1001
(Statements or Entries Generally). (ECF No. 1 at 7; ECF No.
13 at 2). The State Defendants' motion documents note
that such statutes do not provide a private right of action.
(ECF No. 13 at 2 n.2).
the State Defendants' motion asserts that this court
lacks subject matter jurisdiction over them because they are
not persons who can be sued under 42 U.S.C. § 1983 and
are immune from a suit for damages under the Eleventh
Amendment, and because the plaintiff is relying upon
statutory law that provides no private right of action. All
of the defendants' motions also assert that none of the
defendants were served with process within the 90 day-period
provided for in Rule 4(m) of the Federal Rules of Civil
Procedure and, thus, the Complaint should be dismissed
thereunder. The undersigned will address these issues as
necessary in turn.
the plaintiff is proceeding pro se, the court is
obliged to construe his pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 521 (1972). Nevertheless, as the
party asserting jurisdiction, the burden of proving subject
matter jurisdiction lies with the plaintiff. McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189
(1936). A district court must dismiss a claim if, at any
time, it appears that the court lacks jurisdiction over the
subject matter of the claim, and the court may raise that
issue sua sponte. Fed.R.Civ.P. 12(b)(1) and
12(h)(3); Duffield v. Memorial Hosp. Ass'n, 361
F.Supp. 398 (S.D. W.Va. 1973), aff'd sub. nom.
Duffield v. Charleston Area Medical Ctr., 503 F.2d 512
(4th Cir. 1974); see also Bolin v. Chavez, 210 F.3d
389 (10th Cir. 2000) (permitting sua sponte
dismissal for lack of subject matter jurisdiction under Rule
12(h)(3) of the Federal Rules of Civil Procedure).
Lack of subject matter jurisdiction.
noted by the State Defendants' motion, the plaintiff has
not specifically alleged a claim against any of the
defendants that would entitle him to relief under the United
States Constitution or any federal statute providing for a
private right of action thereunder. Thus, the plaintiff has
not stated a federal question, as required for this court to
have subject matter jurisdiction under 28 U.S.C. § 1331.
The plaintiff's reliance on federal criminal statutes is
insufficient to confer subject matter jurisdiction, as the
plaintiff cannot bring a civil action to enforce such
statutes. See Leeke v. Timmerman, 454 U.S. 83, 85,
102 S.Ct. 69, 70 L.Ed.2d 65 (1981) (a private citizen lacks a
judicially cognizable interest in the prosecution or
non-prosecution of another); Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994)
(criminal statutes do not provide private causes of action);
Brown v. State Farm Fire and Cas. Co., No. 3:11-CV-
1435, 2013 WL 951726, at *3 n. 2 (D. Conn. March 12, 2013)
(obstruction of justice and 18 U.S.C. §§ 1501-07
are criminal statutes that do not give rise to private causes
of action) (citations omitted); Garay v. United States
Bancorp, 303 F.Supp.2d 299, 303 (E.D.N.Y. 2004)
(obstruction of justice is a criminal matter for which there
is no private cause of action) (citations omitted);
United States ex rel. Farmer v. Kaufman, 750 F.Supp.
106, 108-109 (S.D.N.Y.1990) (plaintiff had no standing to
bring a civil suit under criminal statutes prohibiting
obstruction of justice-nor will court imply such authority to
bring suit) (citations omitted).
the plaintiff demonstrated that he can meet the requirements
for diversity of citizenship jurisdiction under 28 U.S.C.
§ 1332 because he and all of the defendants appear to be
citizens of the State of West Virginia. Accordingly, the
undersigned proposes that the presiding District Judge
FIND that this United States District Court