Dostert v. Neely, Civ. A. No. 80-2314.

• Decision Date: 10 September 1980
• Docket Number: Civ. A. No. 80-2314.
• Parties: Circuit Judge Pierre E. DOSTERT, Harpers Ferry, West Virginia, Plaintiff, v. Honorable Richard M. NEELY et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

498 F. Supp. 1144

Circuit Judge Pierre E. DOSTERT, Harpers Ferry, West Virginia, Plaintiff, v. Honorable Richard M. NEELY et al., Defendants.

Civ. A. No. 80-2314.

United States District Court, S. D. West Virginia, Charleston Division.

September 10, 1980.

COPYRIGHT MATERIAL OMITTED

Pierre E. Dostert, pro se.

Sterl F. Shinaberry, Charleston, W. Va., for defendant.

MEMORANDUM ORDER

COPENHAVER, District Judge.

Plaintiff brings this action under 42 U.S.C. § 1983, seeking injunctive relief against defendants for allegedly depriving plaintiff of rights guaranteed by the United States Constitution. The court's jurisdiction is founded upon the provisions of 28 U.S.C. § 1343(3) and (4).

Plaintiff is a duly elected Circuit Judge of the State of West Virginia. Defendants are the five Justices of the Supreme Court of Appeals of West Virginia, the Clerk and the Administrative Director of the Supreme Court of Appeals of West Virginia, another Circuit Judge, the Magistrate of Cabell County, West Virginia, and two special prosecutors of Monongalia County, West Virginia. Plaintiff seeks orders enjoining the defendants from proceeding with a criminal prosecution pending against him and enjoining the imposition of a disciplinary suspension and assessment of costs against him.

Plaintiff filed his complaint on July 28, 1980. On July 29th, a hearing on plaintiff's motion for a temporary restraining order was held, at which the plaintiff appeared in person and Sterl F. Shinaberry appeared as counsel for defendants Justice Fred H. Caplan, Justice Thomas B. Miller, Justice Darrell V. McGraw, Jr., Clerk George W. Singleton, and Magistrate Alvie Qualls. On July 30th, the court found that both the balance of hardship test and the likelihood of success standard weighed in favor of the defendants, and concluded that plaintiff's motion for a temporary restraining order should be denied. Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977). Those findings and conclusions are contained in the court's order entered July 31st, denying the plaintiff's motion for temporary relief. On the same day, plaintiff filed a notice of appeal from the court's decree denying the motion for a temporary restraining order. At the same time defendants filed in this court a motion to dismiss the complaint. Plaintiff filed his reply to defendants' motion to dismiss on August 6th. Inasmuch as this court is not, under the circumstances present here, deprived of its jurisdiction during the pendency of plaintiff's appeal of the court's interlocutory order denying temporary restraining relief, the defendants' motion to dismiss will now be addressed. Rule 62(a) of the Federal Rules of Civil Procedure; 11 Wright and Miller, Federal Practice and Procedure, § 2962 (1973) (hereinafter Wright & Miller).

Defendants move to dismiss the complaint for lack of personal jurisdiction over several defendants, for lack of subject matter jurisdiction, for failure of the plaintiff to exhaust available appellate remedies, for failure to state a claim upon which relief can be granted, on grounds of judicial immunity, and on abstention grounds. Abstention may be raised in a motion to dismiss. See Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975). Because the resolution of the abstention question renders unnecessary at this stage the consideration of other grounds for dismissal, the court turns directly to that issue and the doctrine of Younger v. Harris.

I.

The pertinent facts for present purposes are taken to be the factual allegations in plaintiff's complaint, as reiterated by plaintiff at the hearing for temporary relief. Mere allegations of legal conclusions are insufficient to state a claim under § 1983; when plaintiff's factual allegations do not support the legal conclusions, the conclusions will not be accepted. Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir. 1977); Albany Welfare Rights Organization v. Shreck, 463 F.2d 620 (2d Cir. 1972); 5 Wright & Miller § 1286. The allegations in the complaint are to be construed in the manner most favorable to plaintiff. 5 Wright & Miller §§ 1286, 1363.

On March 25, 1979, a helicopter landed illegally in Bolivar, West Virginia. The town police, unable to find the town judge, contacted plaintiff in order to obtain a warrant for the arrest of the helicopter pilot. Plaintiff elected to accompany the police to the home of Detlev Preissler, where the helicopter had landed. At the Preissler residence, plaintiff participated in the ensuing arrests of the helicopter pilot, Detlev Preissler and Detlev's son, Erik.

Plaintiff alleges that Chief Justice Caplan, after receiving unsolicited copies of the newspaper articles reporting plaintiff's participation in the arrests, referred the incident to the Judicial Inquiry Commission. The Commission is the first tier in West Virginia's three-tiered procedure for investigating charges of judicial misconduct. The Judicial Inquiry Commission is the creature of the West Virginia Supreme Court of Appeals which established the Commission pursuant to the court's authority under Article 8, Section 8 of the Constitution of West Virginia, as amended by the Judicial Reorganization Amendment (ratified in the general election of November 5, 1974). The Judicial Inquiry Commission conducted an investigation and hearing. On May 18, 1979, the Commission filed a complaint with the Judicial Review Board, the second tier in the procedure. The complaint charged plaintiff with participating in the Preisslers' arrest, carrying a pistol without a license, and removing the prosecuting attorney, Mr. Skinner, from the case against the Preisslers, all in violation of Canons 2 A and 3 A of the Judicial Code of Ethics.

In accordance with the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates (hereinafter Rules for Complaints Against Justices), the Judicial Review Board notified plaintiff of the complaint against him and conducted a hearing on November 2, 1979. The hearing consisted of opening statements, direct and cross-examination of several witnesses (including the plaintiff), presentation of exhibits, and closing arguments. Plaintiff admitted participating in the arrests and testified regarding the licensing of the pistol. The Preisslers were present, but did not testify. On December 20, 1979, the Judicial Review Board rendered its decision, a written recommendation to the West Virginia Supreme Court of Appeals, the third tier in the process. The decision found that Judge Dostert had violated Canons 2 A and 3 A of the Judicial Code of Ethics by participating in the Preisslers' arrests, carrying a pistol without a license issued pursuant to the provisions of West Virginia law, and unilaterally removing the prosecutor from the Preissler prosecutions. The Board recommended a disciplinary suspension of six months without pay.

The Judicial Review Board's decision was filed with the Supreme Court of Appeals, as provided for in the Rules for Complaints Against Justices. The Supreme Court of Appeals held a hearing on the matter on February 26, 1980. In an opinion dated June 19, 1980, the Supreme Court of Appeals found nothing improper in plaintiff's dismissal of the prosecutor, but held that plaintiff had violated Canon 2 A by participating in the arrests and carrying a pistol in violation of the law, and adopted the Judicial Review Board's recommended sanction of a six-month suspension without pay, effective June 30, 1980. W. Va. Judicial Inquiry Commission v. Dostert, ___ W.Va. ___, 271 S.E.2d 427 (1980)¹. Plaintiff requested and was granted a stay of the suspension until July 30 in order to consider further proceedings. This suit was filed on July 28, 1980, seeking, inter alia, to enjoin the imposition of the suspension without pay.

During the course of the disciplinary processes described above, several other proceedings took place arising out of the landing of the helicopter in the Preisslers' back yard. Plaintiff alleges that the Preisslers appeared before the Supreme Court of Appeals to seek the reinstatement of Prosecutor Skinner in the fall of 1979, and that the Supreme Court effectively reinstated him, although Prosecutor Skinner removed himself a week later.

On March 5, 1980, the Preisslers appeared again before the Supreme Court, seeking criminal warrants against the plaintiff and the police officers who participated in the arrest of the Preisslers. The Supreme Court appointed a special magistrate, David Pedneau, to hear the Preisslers' complaint and appointed a special circuit judge, Larry Starcher, to sit as circuit judge should one be needed in the case and to appoint special prosecutors. Judge Starcher appointed Andrew Fusco and Thomas Newbraugh as special prosecutors.

Magistrate Pedneau filed warrants against the plaintiff five days later without hearing three disinterested witnesses provided by the plaintiff. On March 19th, plaintiff filed an affidavit of bias and prejudice against Magistrate Pedneau. On March 20th, Magistrate Pedneau issued new warrants against the plaintiff. The warrants each charge a misdemeanor, including assault, trespass and the unauthorized carrying of a weapon. On May 11th, the Supreme Court of Appeals ruled that plaintiff's affidavit of bias and prejudice made it incumbent upon Magistrate Pedneau to remove himself from the case, and appointed another magistrate, Alvie Qualls, to handle proceedings in connection with the warrants issued by Magistrate Pedneau. Magistrate Qualls set a trial date of August 1 on the warrants before him. Plaintiff seeks to enjoin the prosecution based on those warrants.

Plaintiff has also filed a motion for the recusal of Judge Starcher with the Supreme Court of Appeals, alleging that Judge Starcher's anti-gun sentiments constitute grounds for recusal. Plaintiff asks that Judge Starcher be enjoined from hearing any aspect of the criminal case.

II...