                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


State of West Virginia ex rel. Larry Paul McClure, Sr.,                               FILED
Petitioner                                                                       November 23, 2015
                                                                                 RORY L. PERRY II, CLERK
vs) No. 15-0493 (McDowell County )                                             SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

Honorable Booker T. Stephens, Judge of the Circuit Court
of McDowell County, and Francine Spencer, Clerk,
Respondents


                               MEMORANDUM DECISION
        Pro se petitioner Larry Paul McClure Sr., invokes this Court’s original jurisdiction
seeking a writ of mandamus to compel respondents to transfer his petition for writ of habeas
corpus to the circuit court of Kanawha County and to allow the filing of his civil complaint
alleging negligence and gross negligence against D. Adrian Hoosier II and The Hoosier Law
Firm PLLC in the Circuit Court of McDowell County.1 Petitioner argues that the respondents
violated his constitutional right to meaningful access to the courts pursuant to West Virginia
Constitution art. III, § 17.

        In May of 2013, petitioner and Jimmie McClure, pro se (“Plaintiffs”), filed a complaint
against Wells Fargo Bank Home Mortgage (“Wells Fargo”) and USA Rental Fund LLC (“USA
Rental”) alleging negligence, fraudulent conveyance of real property by USA, and breach of
general warranty deed against USA Rental. Plaintiffs also alleged claims against W. Kendrick
King2 for malfeasance and “creating a hate crime.” Plaintiffs’ claims against Wells Fargo and
USA Rental arose from an October 11, 2011, conveyance of real property which included a
house from USA Rental to plaintiffs.

       In June of 2013, D. Adrian Hoosier II filed a notice of appearance on behalf of plaintiffs
in the underlying case. Thereafter, on January 22, 2014, and February 6, 2014, petitioner
dismissed his claims against USA and Wells Fargo, respectively. By order entered August 13,

       1
         This Court notes that petitioner’s argument with regards to the transfer of his petition for
writ of habeas corpus is moot. This Court long ago held that “[m]oot questions or abstract
propositions, the decision of which would avail nothing in the determination of controverted
rights of persons or of property, are not properly cognizable by a court.” Syl. Pt. 1, State ex rel.
Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908). Upon review of the record on appeal,
petitioner’s petition for writ of habeas corpus was transferred to the Circuit Court of Kanawha
County by order entered May 29, 2015.
       2
           This Court annulled Mr. King’s law license by order entered May 16, 2013.
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2014, the circuit court granted USA’s motion for summary judgment against Jimmie McClure.
The circuit court found that counsel failed to answer or object to USA Rental’s requests for
admissions and failed to set forth specific facts showing there was a genuine issue of material
fact.

        In April of 2014, the Honorable Booker T. Stephens entered an “Administrative Order
regarding vexatious, intimidating, harassing, and frivolous filings and court personnel security in
pro se litigation in magistrate and circuit courts” which required all pro se litigants to obtain
permission prior to the filing and docketing of their complaint in the Circuit Court of McDowell.
In July of 2014, petitioner attempted to file a complaint against D. Adrian Hoosier II, and The
Hoosier Law Firm, PLLC, alleging negligence and gross negligence related to its handling of
Jimmie McClure’s case against USA Rental. Thereafter, Respondent Stephens did not approve
petitioner’s complaint for filing and docketing in the circuit clerk’s office pursuant to his
administrative order. It is from this procedure that petitioner now appeals.

        The foundational requirements for the issuance of a writ of mandamus are axiomatic:
“Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the
existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on
the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of
another adequate remedy at law.” Syl. Pt. 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781
(1981).

        Petitioner argues that Respondent Stephens’ administrative order preventing him from
filing his civil complaint with the circuit clerk or the circuit court unless he first files a petition
seeking leave to file a pro se action and a notarized affidavit reciting his legal issues violates his
constitutional right to due process.3 To begin, this Court has held that “‘[u]nder West Virginia
Constitution art. III, § 17, the right of self-representation in civil proceedings is a fundamental
right which cannot be arbitrarily or unreasonably denied.’ Syl. Pt. 1, Blair v. Maynard, 174
W.Va. 247, 324 S.E.2d 391 (1984).” Syl. Pt. 3, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d
771 (2006). Furthermore, this Court has also held that:

               Where a circuit court is faced with a potential abuse of process by a
       prisoner or a prisoner’s threat to abuse the judicial process, the circuit court may,
       subject to the following, enter an order imposing reasonable limitations on the
       prisoner’s right to access the court. Prior to the entry of such an order, the circuit
       court must provide the prisoner an opportunity to show cause why such a
       limitation should not be imposed. If the record demonstrates a clear intention to
       obstruct the administration of justice, the circuit court may impose limitations on
       the prisoner’s right of access. Any order limiting a prisoner’s access to the courts
       must be designed to preserve his right to adequate, effective, and meaningful
       access to our courts. The circuit court’s order imposing such a limitation must
       include such findings of fact and conclusions of law adequate for meaningful
       appellate review.



       3
           Petitioner is currently incarcerated at the McDowell County Correctional Center.
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Syl. Pt. 5, Mathena, 219 W. Va. at 418-19, 633 S.E.2d at 772-73. Upon our review of the record,
it is clear that Respondent Stephens failed to follow any of these procedural safeguards and did
not afford petitioner any such opportunity before he directed the McDowell County Circuit Clerk
to not file or docket his civil complaint. In fact, Respondent Stephens notes that “[petitioner’s]
Complaint for Negligence did not receive approval to proceed and was not docketed in the
Circuit Clerk’s office pursuant to the Administrative Order, and the Complaint for Negligence
was sent back to [petitioner].” For these reasons, we hold that respondents improperly limited
petitioner’s access to the Circuit Court of McDowell County.

       Also at issue for this Court, is Respondents’ blanket “administrative order” which
impermissibly limits all pro se litigants’ access to the Circuit Court of McDowell County. West
Virginia Trial Court Rule 1.03 states that:

               Each court, and in multi-judge circuits by action of a majority of its
               judges, may from time to time propose local rules and amendments of
               local rules not inconsistent with the West Virginia Rules of Civil
               Procedure, the West Virginia Rules of Criminal Procedure, the West
               Virginia Trial Court Rules, or with any directive of the Supreme Court of
               Appeals of West Virginia. A proposed rule or amendment shall not be
               effective until approved by the Supreme Court of Appeals. No local
               procedure shall be effective unless adopted as a local rule in accordance
               with this section. To obtain approval, seven copies of any proposed local
               rule or amendment of a local rule shall be submitted to the Supreme Court
               of Appeals through the Office of the Clerk. Reasonable uniformity of local
               rules is required. Numbering and format of any proposed local rule or
               amendment of a local rule shall be as prescribed by the Supreme Court of
               Appeals. The Supreme Court of Appeals’ approval of a local rule or local
               procedure shall not preclude review of that rule or procedure under the law
               or circumstances of a particular case.

Again, upon review of the record, Respondent Stephens failed to follow any of these procedural
safeguards before implementing an administrative order which severally restricts all pro se
litigants access to the Circuit Court of McDowell County. Under the limited facts of this case,
the writ of mandamus is granted directing respondents to allow petitioner to file his civil
complaint in the Circuit Court of McDowell County. Therefore, pursuant to Rule 1.03,
Respondent Stephens’ “Administrative Order” entered on April 1, 2014, is null and void.4

        Having demonstrated a clear right to the relief requested, the writ of mandamus sought by
petitioner is granted. The respondents are directed to allow petitioner to file his civil complaint in
the Circuit Court of McDowell County.

                                                                                       Writ Granted.



       4
        “All local rules are void if they are not approved by this Court pursuant to [Trial Court]
Rule 1.02.” State v. Sears, 208 W.Va. 700, n. 6, 542 S.E.2d 863, n. 6 (2000).
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ISSUED: November 23, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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