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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA TILDEN J. POSIN, Plaintiff, v. WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS, WORKFORCE WEST VIRGINIA DIVISION, WEST VIRGINIA INSURANCE COMMISSION STATE OF WEST VIRGINIA and THE OHIO COUNTY SHERIFF, Defendants. MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY DEFENDANTS STATE OF WEST VIRGINIA AND INSURANCE COMMISSION OF WEST VIRGINIA, GRANTING MOTION TO DISMISS BY WORKFORCE WEST VIRGINIA, GRANTING MOTION TO DISMISS BY DEFENDANT OHIO COUNTY SHERIFF THOMAS F. BURGOYNE AND DENYING AS MOOT MOTION BY DEFENDANT OHIO COUNTY SHERIFF THOMAS F. BURGOYNE FOR ENTRY OF DISMISSAL I. Procedural History Civil Action No. 5:08CV97 (STAMP)

The plaintiff, Tilden J. Posin ("Posin"), proceeding pro se,1 filed a complaint in which he alleges that defendants State of West Virginia, Insurance Commission of West Virginia, and Workforce West Virginia ("state-entity defendants") violated his civil and

constitutional rights by making intentional misrepresentations to the Circuit Court of Kanawha County for the purpose of obtaining an

"Pro se" describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black's Law Dictionary 1237 (7th ed. 1999).

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adverse judgment against Posin and, on the basis of such judgment, to unlawfully seize his property. Posin further alleges that

defendant Ohio County Sheriff Thomas Burgoyne ("Burgoyne") executed the court order enforcing the judgment and that Burgoyne notified the media of the execution of the order to embarrass, harass, and intimidate Posin and his family. Posin also claims that Burgoyne

made veiled threats against his son, Samuel T. Posin ("Posin's son"), regarding enforcement of taxes. Each defendant has filed a separate motion to dismiss.

Thereafter, defendant Burgoyne filed a motion for entry of an order of dismissal. With leave of court, Posin then filed a combined

response to which each defendant replied separately. After considering the parties' memoranda and the applicable law, this Court finds that the motion to dismiss by defendants State of West Virginia and Insurance Commission of West Virginia should be granted; that the motion to dismiss by defendant

Workforce West Virginia should be granted; that the motion to dismiss by defendant Ohio County Sheriff Thomas Burgoyne should be granted; and that defendant Ohio County Sheriff Thomas Burgoyne's motion for entry of an order to dismiss should be denied as moot. II. Facts

A complete account of the factual and relevant legal history of this action, which appears to have its genesis in bankruptcy proceedings filed by Posin and his failure to pay state workers'

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compensation and unemployment taxes, has not been presented to this Court by any of the parties. the defendants' various However, for purposes of addressing to dismiss, the following

motions

abbreviated account is sufficient. On August 4, 2004, the Circuit Court of Kanawha County, West Virginia entered an order granting judgment to the Workers'

Compensation Commission against Posin, Posin's son (who was also his business partner), and S.P. Jewelry Corp. ("S.P. Jewelry")2 (the business co-owned by Posin and his son), jointly and

severally, in the amount of $66,716.00, plus costs, and granting judgment to the Unemployment Compensation Division against Posin, his son, and S.P. Jewelry, jointly and severally, in the amount of $44,182.75, plus costs.3 That order also permanently enjoined

Posin, his son, and S.P. Jewelry from doing business in West Virginia until full satisfaction of the judgments and reinstatement of good standing to the respective accounts. permanently enjoined Posin, his son, and The order further S.P. Jewelry from

transferring, encumbering, destroying, wasting, or concealing any of their property whatever until full satisfaction of the judgments and reinstatement of good standing to the respective accounts.

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S.P. Jewelry Corp. is not a party to this action.

It is unclear when the state civil case was initiated or what precisely were the issues constituting the complaint. 3

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On September 26, 2006, Posin, acting in his capacity as president of S.P. Jewelry, entered into a business agreement with his son, who was acting in his capacity as president of "Chai 18, Inc.," a West Virginia corporation the registration of which had not at that time been finalized. The September 26, 2006 business

agreement leased to Chai 18, Inc., the physical plant of S.P. Jewelry, the "Posins" proprietary name, and the goodwill of the business. On May 3, 2007, the Circuit Court of Kanawha County entered an order which found Posin and his son in contempt of that court's August 3, 2004 order by doing business in West Virginia. The May

3, 2007 order also confirmed the state court's pronounced ruling from a hearing held on April 25, 2007 ordering Posin and his son to "pay by Certified Check to [state] auditor, Tom Andrews, One Thousand Dollars ($1,000.00), by noon on Tuesday, May 2, 2007 and One Thousand Dollars on each Tuesday for each week the business remains open until the settlement amount of $20,181.27 was

satisfied, else Posins Fine Jewelers t/a Chai 18, Inc., would be closed and not reopened."4 Subsequently, based upon the state entities' representation to the state court that the first payment of $1,000.00 had not been

It is unclear from the state court's order--and the parties' briefs before this Court fail to reflect--why the order referred to the amount to be paid by Posin and his son as a "settlement amount." 4

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received from Posin or his son, the state court ordered the Posin business to be closed and all assets secured by seizing the business's jewelry and cash and locking the doors of the business. That order, dated May 3, 2007, directed the Ohio County Sheriff to execute the order, shut down the business, and secure the assets. On May 4, 2007, Ohio County Sheriff Thomas Burgoyne executed the state court's May 3, 2007 order, closing the business and seizing the assets. Posin, who apparently did not appeal the state court's May 3, 2007 order, initiated this action on May 16, 2008, pursuant to 28 U.S.C.

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