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Dressler v. Jefferson County

United States District Court, S.D. West Virginia

March 24, 2019

DAVID N. DRESSLER, Plaintiff,
v.
JEFFERSON COUNTY, WV, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE.

         This 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).

         PROCEDURAL HISTORY

         This 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.

         As 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.

         The 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).

         A 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)[1]; 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).

         Additionally, 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.

         STANDARD OF REVIEW

         Because 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).

         ANALYSIS

         A. Lack of subject matter jurisdiction.

         As 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).

         Nor has 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 ...


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