1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Benn ie Ray Roberts

, P laintiff Below

, Petitioner

v s

. ) No. 2 1

- 0 756 ( Kanawha County 21

- P

- 221 )

Russell Maston, Superintendent, St. Marys Correctional Center, et al

. , Defendant s Below, Respondent s



### MEMORANDUM DECISION

P etitioner Benn ie Ray Roberts appeals t he September 7, 2021, order of the Circuit Court of

Kanawha County dismissing his civil action

— filed pursuant to Title 42, s ection 1983 of the United

States Code

— for a failure to state a claim up on 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 Cou nty . The jury made a recommendation of mercy. Accordingly,

the c ircuit c ourt 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 en tered 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 Foren sic 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 VIRGINIA2 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 c ircuit c ourt appointed habeas

counse l to represent him and h eld an omni bus evidentiary hearing o n 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 affirmin g 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 “t he 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,

s ection 1983 of the United States Code 2

— in the Circuit Court of Kanawha County, alleging his

conviction was invalid

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

conviction

. ” I n the alternative

, petitioner sought nominal damages if no injury was proven. Petitioner also sought punitive damages.

The c ircuit c ourt , by order entered on September 7, 2021, fo und 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 c ircuit

c ourt dismissed petitioner’s complaint for a failure to state a claim up on which relief can be granted.

Petitioner now appeals the c ircuit co urt ’s September 7, 2021, order dismiss ing his s ection

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. McGr a w v. Scott Runyan Pontiac

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

2 Title 42, s ection 1983 of the United States Code provides, in pertinent part:

E very 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 inju red 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 pursuan t to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. See Newton v. Morgantown Mac h. & 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 T itle 42, s ection 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,

i n 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 [ s ection] 1983 plaintiff must prove that

the conviction or sentenc e 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 invali dated is not cognizable under [ s ection] 1983.

Id. at *486

- 87 (footnote and emphasis omitted).

Here, petitioner sought mone tar y damages for a n allegedly false conviction, but, as the

c ircuit c ourt found, his habeas petitions in Roberts I and Roberts II were denied. Therefore,

pursuant to Heck , we conclude that the c ircuit c ourt properly dismissed petitioner’s s ection 1983

action for a failure to state a claim upon which relief can be granted. See Na nce v. Ward , 142 S.Ct. 2214, 2222 (2022) (noting that Heck bars s ection 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