United States District Court, S.D. West Virginia, Charleston
AARON A. EDISON, Petitioner,
STATE OF WEST VIRGINIA, ex rel., WV DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU OF CHILD SUPPORT ENFORCEMENT, and CAROLIN M. DOTSON, Respondents.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
is the pro se petitioner's “Petition of Appeal,
” filed in the Northern District of West Virginia on
June 27, 2017, at a time when he was in custody at the North
Central Regional Jail, and transferred to this court on March
9, 2018. Petitioner has clarified that the Petition of Appeal
was intended to be an appeal of an adverse decision by the
Supreme Court of Appeals of West Virginia
(“SCAWV”) as well as a petition under 28 U.S.C.
§ 2254. ECF No. 15 at 4. It appears that the petitioner
is also attempting to raise claims for monetary damages under
42 U.S.C. § 1983. ECF No. 15 at 3-4.
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On November 5, 2019, the
magistrate judge entered his PF&R recommending that the
court dismiss the petition and dismiss this civil action from
the docket of the court. The petitioner timely filed
objections on November 15, 2019.
petitioner claims that his Fourteenth Amendment right to
equal protection was violated when he was convicted of a
misdemeanor count of failure to pay child support in the
Circuit Court of Wirt County, West Virginia, which was
affirmed by the SCAWV. Specifically, the petitioner alleges
that state and federal child support laws discriminate based
on gender. In addition, the petitioner claims that his
counsel was ineffective by not arguing this constitutional
claim in his state court criminal prosecution for failure to
pay child support, as the petitioner repeatedly requested.
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
petitioner raises four objections to the PF&R. First, the
petitioner objects to the magistrate judge's finding that
judges, attorneys, and other public officials are in this
instance immune from criminal prosecution. The petitioner
argues that criminal claims may be brought under 42 U.S.C.
§ 1983 against judges, attorneys, and government agents
because they act under the “color of law.”
However, as the magistrate judge readily concluded, this
court cannot initiate criminal prosecutions nor grant such
relief in this civil action. All criminal prosecutions must
be initiated by state or federal prosecuting attorneys.
Accordingly, the first objection is overruled.
the petitioner objects to the magistrate judge's finding
that the petitioner's § 2254 petition is
unexhausted. The petitioner argues that state court remedies
were exhausted when he appealed the circuit court decision
regarding his failure to pay child support and later filed a
motion for rehearing before the SCAWV after the SCAWV
affirmed the circuit court.
magistrate judge identified three ways prisoners may exhaust
state court remedies in West Virginia: (1) stating cognizable
federal constitutional claims in a direct appeal; (2) stating
federal constitutional claims in a petition for a writ of
habeas corpus in state circuit court and filing a petition
for appeal from an adverse ruling in the SCAWV; or (3) filing
a petition for a writ of habeas corpus under the original
jurisdiction of the SCAWV. The magistrate judge correctly
concluded that the petitioner failed to exhaust state court
remedies by any of these methods. The petitioner's
federal constitutional claims -- a Fourteenth Amendment equal
protection violation and a Sixth Amendment ineffective
assistance of counsel violation -- were not raised in the
petitioner's criminal appeal. The petitioner did not file
a habeas petition in the circuit court or the SCAWV. Since
appealing a circuit court decision and later filing a motion
for rehearing before the SCAWV does not amount to exhausting
state court remedies, the second objection is overruled.
petitioner's third objection is entitled, “In
Answer to the Proposed Finding That This Petitioner Cannot
Pursue a Claim for Damages Against any of the Respondents
Under 42 U.S.C. 1983.” However, instead of addressing
the § 1983 claim under this heading, the petitioner
again argues that he can recover damages for an
unconstitutional conviction under the § 2254 petition,
contending that he has exhausted state remedies. As discussed
previously, the magistrate judge properly concluded that the
petitioner did not exhaust state remedies. Additionally, the
court notes that the petitioner cannot bring a claim for
monetary damages under the § 2254 petition. See
Preiser v. Rodriguez, 411 U.S. 475, 494 (1973)
(“In the case of a damages claim, habeas corpus is not
an appropriate or available federal remedy.”). The
petitioner does not argue that he can recover damages for an
unconstitutional conviction under § 1983, so the court
will not address that issue. For these reasons, the third
objection is overruled.
the petitioner objects to the magistrate judge's finding
that the petition fails to state a plausible § 1983
claim against Carolin Dotson. The petitioner argues generally
that the petition states a plausible claim for relief against
Carolin Dotson because she received child support payments
from the petitioner that the petitioner argues are
unconstitutional. The petitioner's objection is without
merit. The magistrate judge correctly concluded that Carolin
Dotson is not a state actor and was not acting under color of
law, so she cannot be sued for damages under 42 U.S.C. §
1983. Since the petition did not state a plausible claim of
relief against Carolin Dotson, the fourth objection is
court, accordingly, ORDERS as follows:
1. That the petitioner's objections to the PF&R be,
and they hereby are, overruled;
2. That the magistrate judge's Proposed Findings and
Recommendation be, and they hereby are, adopted and
incorporated in full;
3. That the petitioner's “Petition of Appeal,
” as clarified by the petitioner, be, and ...