1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Bennie Ray Roberts,

Plaintiff Below, Petitioner

vs.) No. 21-0756 (Kanawha County 21-P-221)

Russell Maston, Superintendent, St.

Marys Correctional Center, et al.,

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Bennie Ray Roberts appeals the September 7, 2021, order of the Circuit Court of 

Kanawha County dismissing his civil action—filed pursuant to Title 42, section 1983 of the United 

States Code—for a failure to state a claim upon which relief can be granted.

1 Upon our review, we 

determine that oral argument is unnecessary and that a memorandum decision affirming the circuit 

court’s order is appropriate pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

Following a jury trial in October of 2008, petitioner was convicted of first-degree murder

in the Circuit Court of Mercer County. The jury made a recommendation of mercy. Accordingly, 

the circuit court sentenced petitioner to a life term of incarceration with the possibility of parole 

after fifteen years. Petitioner appealed his conviction, and this Court, by order entered on January 

28, 2010, refused petitioner’s appeal.

1

Petitioner is self-represented. Respondents Russell Maston, Superintendent, St. Marys

Correctional Center; The Honorable William J. Sadler, Judge of the Circuit Court of Mercer 

County; Corporal Tension, West Virginia State Police; Sergeant Long, West Virginia State Police; 

and “John Doe,” an employee of the West Virginia State Police Forensic Laboratory appear by 

counsel Charles R. Bailey and Katherine H. Arritt.

Petitioner also named as defendants Scott Ash, the former Prosecuting Attorney of Mercer 

County, and “[the] wife of [the] victim in [petitioner’s criminal] case.” Neither Attorney Ash nor 

the victim’s wife filed a response to petitioner’s appeal.

FILED

October 26, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

Subsequently, petitioner filed two petitions for a writ of habeas corpus in the Circuit Court 

of Mercer County. During petitioner’s first habeas proceeding, the circuit court appointed habeas 

counsel to represent him and held an omnibus evidentiary hearing on March 2, 2012. Thereafter, 

the circuit court, by order entered on June 6, 2012, denied petitioner’s first habeas petition. 

Petitioner appealed that denial, and this Court affirmed the denial of that habeas petition in Roberts 

v. Ballard (“Roberts I”), No. 12-0782, 2013 WL 2300943 (W. Va. May 24, 2013) (memorandum 

decision).

In petitioner’s second habeas proceeding, he asserted that habeas counsel in Roberts I

provided him with ineffective assistance. The Circuit Court of Mercer County, by order entered on 

January 6, 2016, rejected that claim and denied petitioner’s second habeas petition. Petitioner 

appealed the circuit court’s June 6, 2012, order. In affirming the denial of petitioner’s second 

petition, we found in Roberts v. Ballard (“Roberts II”), No. 16-0120, 2016 WL 5348349 (W. Va. 

Sept. 23, 2016) (memorandum decision), that “the record shows to our satisfaction that petitioner 

is entitled to no habeas relief[.]” Id. at *3.

On July 1, 2021, petitioner filed a civil action against respondents—pursuant to Title 42, 

section 1983 of the United States Code2

—in the Circuit Court of Kanawha County, alleging his 

conviction was invalid. Petitioner sought compensatory damages for the harm caused by “a false 

conviction.” In the alternative, petitioner sought nominal damages if no injury was proven. 

Petitioner also sought punitive damages. 

The circuit court, by order entered on September 7, 2021, found that petitioner’s complaint 

“attempt[s] to show his innocence” but found that, based upon the same allegations in petitioner’s

complaint, his habeas petitions in Roberts I and Roberts II were denied.3 Accordingly, the circuit 

court dismissed petitioner’s complaint for a failure to state a claim upon which relief can be 

granted.

Petitioner now appeals the circuit court’s September 7, 2021, order dismissing his section 

1983 civil action. Respondents counter that the dismissal of petitioner’s action was proper. We 

review the dismissal of petitioner’s action de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott 

Runyan Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 516 (1995). The sufficiency of a complaint 

2

Title 42, section 1983 of the United States Code provides, in pertinent part: 

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United 

States or other person within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the Constitution and laws, shall be 

liable to the party injured in an action at law, suit in equity, or other proper 

proceeding for redress[.] 

3

The circuit court reviewed petitioner’s complaint pursuant to the West Virginia Prisoner 

Litigation Reform Act, West Virginia Code §§ 25-1A-1 to -9.
3

may be tested pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. See Newton 

v. Morgantown Mach. & Hydraulics of W. Va., Inc., 242 W. Va. 650, 653, 838 S.E.2d 734, 737 

(2019). Rule 12(b)(6) provides that an action may be dismissed for “[a] failure to state a claim 

upon which relief can be granted.” 

As Title 42, section 1983 of the United States Code is a federal law, see Hutchison v. City 

of Huntington, 198 W. Va. 139, 147, 479 S.E.2d 649, 657 (1996), we find that the Supreme Court’s 

holding in Heck v. Humphrey, 512 U.S. 477 (1994), disposes of petitioner’s appeal. The Supreme 

Court in Heck held that,

in order to recover damages for allegedly unconstitutional conviction or 

imprisonment, or for other harm caused by actions whose unlawfulness would 

render a conviction or sentence invalid, a [section] 1983 plaintiff must prove that 

the conviction or sentence has been reversed on direct appeal, expunged by 

executive order, [or] declared invalid by a state tribunal authorized to make such 

determination . . . . A claim for damages bearing that relationship to a conviction or 

sentence that has not been so invalidated is not cognizable under [section] 1983.

Id. at *486-87 (footnote and emphasis omitted). 

Here, petitioner sought monetary damages for an allegedly false conviction, but, as the 

circuit court found, his habeas petitions in Roberts I and Roberts II were denied. Therefore, 

pursuant to Heck, we conclude that the circuit court properly dismissed petitioner’s section 1983 

action for a failure to state a claim upon which relief can be granted. See Nance v. Ward, 142 S.Ct. 

2214, 2222 (2022) (noting that Heck bars section 1983 actions seeking money damages where the 

underlying conviction has not been declared invalid in a habeas or other appropriate proceeding).

For the foregoing reasons, we affirm the September 7, 2021, order of the Circuit Court of 

Kanawha County dismissing petitioner’s civil action.

 Affirmed.

ISSUED: October 26, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn