Stevenson v. Clark

Decision Date22 February 2022
Docket NumberCivil Action 1:21-CV-00625
PartiesRYAN BLAKE STEVENSON, Plaintiff, v. LISA DAVIS CLARK, Family Court Judge, DEREK C. SWOPE, Circuit Court Judge, JULIE BALL, Circuit Clerk, Defendants.
CourtU.S. District Court — Southern District of West Virginia


LISA DAVIS CLARK, Family Court Judge, DEREK C. SWOPE, Circuit Court Judge, JULIE BALL, Circuit Clerk, Defendants.

Civil Action No. 1:21-CV-00625

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

February 22, 2022


Omar J. Aboulhosn United States Magistrate Judge

Pending before this Court are Defendants Judge Swope and Judge Clark's Motion to Dismiss (ECF No. 11) and Defendant Julie Ball's Motion to Dismiss (ECF No. 14). By Standing Order, this matter was referred to the undersigned for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 3) Having examined the Complaint, the pleadings of record and the pertinent legal authorities, the undersigned concludes Defendants' Motions to Dismiss should be granted for the reasons stated infra.

Plaintiff's Factual Allegations

On December 1, 2021, Plaintiff, acting pro se,[1] filed his Complaint (ECF No. 1), asserting entitlement to relief under 42 U.S.C. § 1983 alleging violation of his rights under the “fifth, fourteenth admendment(s) [sic], Article I, Section 9 and 10”. Plaintiff alleges the events giving rise to his claims occurred in the Mercer County Family and Circuit Courts, on February 4, 2011,


February 8, 2011, December 9, 2019, February 26, 2021, May 4, 2021, and May 6, 2021. (Id. at 5)

For his first claim, “Claim #1”, Plaintiff appears to take issue that Defendant Family Court Judge Clark had indicated she was “familiar” with his case, although Plaintiff does not recall having appeared before her prior to February 8, 2011, when his case was transferred to her from another family court judge. (Id. at 6) Plaintiff appears to suggest that his due process rights were violated when “a letter was sent to my physical instead of my mailing address so it was returned to sender[.]” (Id.) Plaintiff alleges that he “filed first” on February 4, 2011 and was “deprived from seeing my new born daughter” for “almost a month” but sometime later Defendant Family Court Judge Clark let Plaintiff see his daughter for two hours a week, but was still “depriving” him from “being able to nurture and bond” with his daughter. (Id.) Additionally, Defendant Circuit Clerk Ball “affixed her seal to said orders.” (Id.)

For his second claim, “Claim #2”, Plaintiff alleges that Defendant Family Court Judge Clark again deprived him from having contact with his daughter on December 9, 2019 based on a “proffer of false allegations” from his daughter's mother's lawyer during an “ex-parte hearing”; Plaintiff indicates that this deprived him of due process. (Id. at 7) Plaintiff alleges that Defendant Family Court Judge Clark entered a final order on March 9, 2020, which was appealed and remanded back to the family court, but then Defendant Family Court Judge Clark entered another final order on February 26, 2021, again “depriving me of being a father to my daughter and life, liberty . . . ” (Id.)

For his third claim, “Claim #3”, Plaintiff alleges that on May 4 and 6, 2021, Defendant Circuit Court Judge Swope affirmed Defendant Family Court Judge Clark's order. (Id. at 8) Plaintiff alleges that he was not given a trial by jury as he requested in his appeal, and that


Defendant Circuit Court Judge Swope “aided in depriving me from being a father to my daughter, as well depriving me of due process, causing my son, other daughters and family much pain, as well as depriving them of life, liberty and p[ur]suit o hap[p]iness” (Id.)

Plaintiff's alleged injuries include: explaining to his other children when his daughter will be coming back; having his heart broken from “missing my daughter”; having been emotionally harmed by “defendants abuse of power”; and “stressed to the max thinking of my daughter's safety, chest pains, deprived of life, liberty, and happiness.” (Id. at 9) For relief, Plaintiff asks that “the allienation [sic] from my daughter be stopped” for both himself and his family, that “a DVP that is based on false allegations” be removed, as well as ten million dollars in punitive damages for the harm and stress caused by Defendants. (Id.)

Procedural History

On December 1, 2021, Plaintiff, proceeding pro se, filed his Complaint (ECF No. 1). Following service of same, on December 28, 2021, Defendants Family Court Judge Clark and Circuit Court Judge Swope filed their Motion to Dismiss and supporting Memorandum of Law and served same upon Plaintiff (ECF Nos. 11, 12). On December 29, 2021, the undersigned issued a Roseboro notice[2] to Plaintiff to respond to Defendants' motion by January 31, 2022 (ECF No. 13). On January 3, 2022, Defendant Circuit Clerk Ball filed her Motion to Dismiss and supporting Memorandum of Law and served same upon Plaintiff (ECF Nos. 14, 15). Subsequently, the undersigned issued another Roseboro notice to Plaintiff to respond to this Defendant's motion by January 18, 2022 (ECF No. 17).


On January 18, 2022, Plaintiff filed his “Response” in opposition to Defendant Circuit Clerk Ball's motion (ECF No. 18) as well as an “Affidavit of Truth with Attached Exhibits; and Memorandum of Law” in support of his complaint (ECF No. 19).[3] Plaintiff's Exhibits are redacted copies of an emergency domestic violence protective order filed against Plaintiff in the Magistrate/Family Court of Mercer County, West Virginia on February 1, 2011 (ECF Nos. 21, 211, 21-2, 21-3). On January 25, 2022, Defendant Circuit Clerk Ball filed her Reply in Support of her Motion to Dismiss (ECF No. 22)

On January 31, 2022, Plaintiff filed his “Response and Objections to Defendants Lisa Davis Clark and Derek C. Swope Motion to Dismiss”, “Affidavit of Truth, Memorandum of Law, and Exhibits in Support of Plaintiff Ryan Blake Stevenson Response and Objections to Defendants Motion to Dismiss” (ECF Nos. 23, 24), including exhibits that appear to be copies of Plaintiff's appeals to the Mercer County Circuit Court, dated December 19, 2019 and March 26, 2021, from orders entered by the Mercer County Family Court (ECF No. 24-1). On February 7, 2022, Defendants Family Court Judge Clark and Circuit Court Judge Swope filed their Reply in Support of Motion to Dismiss (ECF No. 25).

On February 8, 2022, Plaintiff filed a “Response and Objection to Defendant, Julie Ball's Reply” (ECF No. 26) and an attached exhibit (ECF No. 26-1).[4]

Accordingly, this matter has been fully briefed and ready for resolution.

Defendants Clark and Swope's Argument for Dismissal


These Defendants argue that from a fair reading of Plaintiff's allegations against them, as judicial officers acting in that capacity, they enjoy absolute immunity from suits brought under Section 1983. (ECF No. 12 at 3-5) Additionally, these Defendants contend that this Court lacks subject matter jurisdiction over Plaintiff's claims due to the application of Eleventh Amendment immunity. (Id. at 5-6) Even under the three narrow exceptions to Eleventh Amendment immunity, first, neither Defendant has waived immunity nor consented to this suit, second, there has been no act of Congress authorizing this suit, and third, because Plaintiff seeks damages for alleged past misconduct, which both Defendant deny because neither has violated any federal law, both Defendants are still shielded from liability by the Eleventh Amendment's sovereign immunity (Id. at 6-10).

Plaintiff's Response in Opposition to Defendant Clark and Swope's Argument

Plaintiff asks this Court to deny these Defendants' motion to dismiss (ECF No. 23), and argues that these Defendants failed to “be true to their Oaths of Office” and infringed upon his constitutional and fundamental rights. (ECF No. 24) Plaintiff asserts that he did not consent to the orders entered by the courts, that Defendants acted in bad faith, and that Plaintiff's rights to due process and to be heard before a jury of his peers were denied. (Id.) Plaintiff points out that the United States Supreme Court recognized that a parent's interests in his children and is protected under the Constitution. (Id.) Plaintiff disputes that Defendants Clark and Swope are immune from his claims. (Id.) In addition to punitive damages, Plaintiff now requests injunctive relief. (Id.)

Defendant Clark and Swope's Reply

Defendants contend that Plaintiff failed to address their arguments regarding qualified immunity and immunity for judicial officers, and therefore has conceded the issue. (ECF No. 25 at 1-2) Plaintiff does not identify what federal law these Defendants violated for purposes of


alleging an exception to Eleventh Amendment immunity. (Id. at 2) Despite Plaintiff's claims of due process and right to jury trial violations, these Defendants argue that his due process rights were adequately protected by the family court and that Rule 31 of the West Virginia Rules of Practice and Procedure for Family Court do not entitle Plaintiff to oral argument or a jury trial for appeals from family court. (Id. at 3-4) When Defendant Swope upheld the family court order, Plaintiff's remedy would have been to appeal to the West Virginia Supreme Court of Appeals, but he failed to pursue this action, therefore he cannot cure this failure here. (Id. at 4) Finally, West Virginia law does not require a family court judge to obtain consent of a party to hear a case, only that the court must have subject matter jurisdiction and jurisdiction of the parties; given that Defendant Clark heard matters concerning the custody of Plaintiff's daughter as set forth in W.Va. Code § 51-2A-2, this Defendant had jurisdiction over the matter and did not require Plaintiff's consent to enter a valid order. (Id. at 4-5)

Defendant Ball's Argument for Dismissal

Defendant Ball points out that Plaintiff's only allegation against her is that she affixed her seal to a family court order, which is insufficient to plead a Fourteenth...

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