Chien v. Commonwealth of VA et al

Filing 47

MEMORANDUM OPINION re: Defts Motions to Dismiss. Signed by District Judge Liam O'Grady on 08/28/17. (pmil, )

IN THE UNITED STATES DISTRICT COUR^

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FOR THE EASTERN DISTRICT OF VIRGINL

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Alexandria Division

AU0 28 2017

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CLERK, U.S. DiST: CT "^RT

Andrew Chien,

ALEXANDRIA. VIRGINIA

Plaintiff,
Civil Action No, 1:17-cv-677

Hon. Liam O'Grady

V.

Hon. Theresa Buchanan

Commonwealth of Virginia, et aL,

Defendants.

MEMORANDUM OPINION

This matter conies before the Court on numerous Motions to Dismiss filed by the
Defendants in this action. (Dkt. Nos. 9,12,15,19, 23, 27). For the reasons discussed below, the
Court GRANTS Defendants' Motions.
I. BACKGROUND

Plaintiff filed the pro se Complaint in this matter on June 12,2017. Dkt. No. 1. The
background facts of this case as set forth in Plaintiffs 125-page Complaint are materially
indistinguishable from those alleged in a related case Chien v. William K. Grogan, et aL, 1:17cv-358. The Court's Memorandum Opinion in that case provides a recitation of the underlying

facts of this matter. See id, Dkt. No. 24. The only material difference in this matter is that the
Complaint alleges counts against Defendant Karl S. Leonard, Defendant Judy L. Worthington,
Defendant Mary E. Craze, Defendant Wendy S. Hughes, Defendant Frederick G. Rockwell III,
Defendant Glen A. Huff, Defendant Donald W. Lemons, Defendant W. Allan Sharrett,

Defendant Attorney General Mark R Herring, Defendant Commonwealth of Virginia, and
Defendant Chesterfield County.

All of the Defendants have moved to dismiss the Complaint on various grounds.

Defendants Wendy Hughes (Dkt. No. 9), Mary Craze(Dkt. No. 12), Judy Worthington (Dkt. No.

15); Karl Leonard (Dkt. No. 19),' and Chesterfield County (Dkt. No. 27) have moved to dismiss
for failure to state a claim. Defendants the Commonwealth of Virginia together with Mark

Herring, Glen Huff, Donald Lemons, Frederick Rockwell, and AllanSharrett have moved to
dismiss for lack of subject matterjurisdiction and failure to state a claim. (Dkt. No. 23).
Plaintiff has not respondedto any of the motions. The Court took the matter under advisement
without oral argument.
II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) permits the defendant to move for dismissal of a
claim when the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The court must
dismiss the action if it determines at any time that it lacks subject matter jurisdiction. Fed. R.
Civ. P. 12(h)(3). Defendants may, as in this case, attack "the existence of subject matter

jurisdiction in fact, quite apart from any pleading" because even with sufficient pleading, the
district court could not have jurisdiction over the claim. White v. CMA Const. Co. Inc.^ F. Supp.

231, 233 (E.D. Va, 1996). The plaintiff bears the burden to establish that subject matter

jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The Court

grants a Rule 12(b)(1)motion if the materialjurisdictional facts are known and the moving party
is entitled to prevail as a matter of law. See Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint must contain sufficient factual information to "state a claim to relief that is plausible

' Defendant Karl Leonard moves inthealternative to transfer venue pursuant to Rule 12(b)(3) butsuch transfer is
unnecessary for the reasons set forth below.

on its face." Bell Atl Corp. v. Twombly^ 550 U.S. 544, 550 (2007). A motion to dismiss

pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2) which requires "a
short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ.
P. 8(a)(2), so as to "give the defendant fair notice of what the ... claim is and the grounds upon

which it rests." Twombly, 550 U.S. at 555. While "detailed factual allegations" are not required.
Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that

the plaintiff is entitled to relief Id. Because a Rule 12(b)(6) motion tests the sufficiency of a
complaint without resolving factual disputes, a district court "'must accept as true all of the
factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the

plaintiff " Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462,467 (4th
Cir. 2012) (quoting E.I. du Font de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th
Cir. 2011)). Accordingly, a complaint may survive a motion to dismiss "even if it appears 'that a
recovery is very remote and unlikely.' " Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
III. DISCUSSION

The memorandum addresses each Defendant's Motion in turn.
A. Wendy Hughes - Failure to State a Claim

Defendant Hughes is the Clerk of Court for Chesterfield County Circuit Court. Plaintiff
alleges six counts against her: (1) violation of Va. Code § 18.2-472 for tampering with Plaintiffs

inmate records between November 2014 and Jime 2016; (2) peijury (no statutory basis
provided); (3) violation of Va. Code § 18.2-472 for tampering with court records; (4) violation of
Va. Code § 19.2-11 for serving orders of the Chesterfield County Court of Chancery on Plaintiff
by mail instead of in person; (5) violation of 18 U.S.C. § 1959(a)(4) for threatening to commit a

crime of violence in aid of a criminal enterprise; and (6) violation of 18 U.S.C. §§ 241-42 for
illegally incarcerating Plaintiff

Defendant Hughes contends that Plaintiff has failed to state a claim against Defendant as
to any of these counts. Defendant Hughes argues that all of the counts, with the exception of
Count 5, allege violations of the criminal code affording no civil cause of action to the Plaintiff.
Defendant Hughes submits that even if Count 5 is construed as a claim for a civil violation of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), Plaintiff has not plausibly

pleaded the elements of that claim. Defendant Hughes also submits that to the extent Count 4 is
an attempt to plead a due process violation pursuant to 42 U.S.C. § 1983, the claim is timebarred by the two year statute of limitations because the acts alleged occurred on or before April
29, 2015 and the Complaint was not filed until June 12, 2017. Finally, Defendant argues that
any claims against Defendant Hughes in her official capacity are barred by the Eleventh
Amendment and quasi-judicial immunity. The memorandum addresses these claims in turn.
1.

No Civil Remedies

In order for a private right of action to arise out of the Virginia Code, the civil remedy
must appear on the face of the statute. See Sch. Bd ofCity ofNorfolk v. Giannoutsos, 238 Va.
144,147, 380 S.E.2d 647, 649 (1989) ("[When] a statute creates a right and provides a remedy

for the vindication of that right, then that remedy is exclusive unless the statute says otherwise.").
Virginia Code § 18.2-472 criminalizes false entries or destruction of records but does not provide
a civil right of action. Count 3 (also § 18.2-472) and Count 4 (Va. Code § 19.2-11) also lack a
civil remedy. To the extent that Plaintiff seeks to state a claim for perjury pursuant to Virginia

Code § 18.2-434, that statute does not confer a private right of action either. Accordingly, all of
these state law claims are dismissed.

The federal causes of action are similarly infirm. To the extent that Plaintiff seeks relief

for his perjury claim pursuant to 28 U.S.C § 1746 ("Unsworn declarations under penalty of
peijury") this Court has previously held that code provision does not provide a civil cause of
action. Allen v. City ofFredericksburg, No. 3:09CV63, 2011 WL 782039, at *7 (E.D. Va. Feb.
22, 2011). Similarly, Count 6 fails because "Plaintiff [] may not personally institute criminal
proceedings or seek civil redress under 18 U.S.C. § 241." Iglesias v. Wal-Mart Stores East,
LP., No. 2:09CV8,2009 WL 8760729, at *3 (E.D.Va. Oct. 26,2009), affd, 375 F. App'x 364

(4th Cir. 2010);

also Walsh v. Logothetis, No. 3:13CV401-JAG, 2014 WL 229588, at *10

(E.D. Va. Jan. 21, 2014), affd, 578 F. App'x 227 (4th Cir. 2014). The only causes of action
which arguably afford a civil remedy are Count 5, to the extent it alleges a civil conspiracy in
violation of RICO, and Count 4, to the extent it sets forth a claim under 42 U.S.C. § 1983. Those
counts nevertheless fail to state a claim for the reasons set forth below.
2.

Civil RICO Claim

To state a claim for civil RICO, "[a] plaintiff must plead all elements of the alleged
violation of section 1962 in order to state a civil claim under section 1964(c)." D'Addario v.

Geller, 264 F. Supp. 2d367, 388 (E.D. Va. 2003).^ "Thus, plaintiffmust allege '(1) conduct (2)
of an enterprise (3) through a pattern (4) of racketeering activity.' Plaintiff must additionally
^Plaintiff does notreference Virginia Code § 8.01-221 which provides that "[a]ny person injured bythe violation of
any statute may recover from the offender such damages as he may sustain by reason ofthe violation, even though a
penalty or forfeiture for such violation be thereby imposed
" This section could arguably be read to confer a
private right of action in criminal statutes but the Virginia Supreme Court has held that § 8.01-221 does not create a
new right for damages for violation of some other criminal or penalty statute unless it is already provided for in a
separate civil remedy. See Vansant & Gusler, Inc. v. Washington, 245 Va. 356, 361,429 S.E.2d 31, 34 (1993).

^Title 18 U.S.C. § 1962(c) provides that "it shall beunlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt."

show that (5) he was injured in his business or property (6) by reason of the RICO violation." Id.
(quoting Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479,496,105 S.Ct. 3275, 87 L.Ed.2d 346
(1985)). Defendant Hughes contends that Plaintiff has failed to plausibly allege these elements.
Plaintiff alleges the RICO cause of action at K113(e) of the Complaint. Dkt. No. 1 at 92.

Plaintiff asserts that the debt collection against him and his arrest for failing to comply with court
orders were illegal and constitute racketeering offenses because they involve kidnapping,
extortion, retaliation against a witness, and interference with commerce, among other things.
Plaintiff alleges that Defendant Hughes and other agents of the courts of Virginia and
Connecticut cooperated in order to fraudulently detain Plaintiff and collect against him.

Plaintiffs allegations fail to set forth a claim under RICO. While all factual allegations

in the Complaint must be presumed true at this stage in the proceedings, the fraud allegations
must nevertheless meet the heightened pleading requirements set forth in Rule 9(b) of the
Federal Rules of Civil Procedure. Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.

1989); see also Slay's Restoration, LLC v. Wright Nat'l Flood Ins. Co., 226 F. Supp. 3d 589, 593
(E.D. Va. 2017). The Complaint does not identify a pattern of particular fraudulent acts

perpetrated by Defendant Hughes (or any of the other Defendants). Rather, the Complaint
broadly states that individuals "manipulated every step of racketeering ... Mr. Clark wrote

Grogan's orders in his office ... then passed to Sheriff and Clerks for execution. There was no
resistance." Dkt. No. 1 at 93. These claims do not satisfy the pleading requirements under Rule
9(b) and must therefore be dismissed.
3.

Due Process Violation

Plaintiff alleges that Defendant Hughes "violated Due Process Clause She [sic] served
Grogan order of 3/9/15, on 4/9/15 by mail not by personal

" Dkt. No. 1 at 115. Defendant

contends that to the extent this allegation states a claim for relief under 42 U.S.C. § 1983, it is
barred by the statute of limitations.

A plaintiff may bring a civil action for mistreatment by government officials pursuant to
42 U.S.C. § 1983 for a deprivation of constitutional rights. See Woodford v. A/go, 548 U.S. 81,

113,126 S. Ct. 2378,2399,165 L. Ed. 2d 368 (2006) ("The purpose of a 42 U.S.C. § 1983
action" is to "obtain redress for an alleged violation of federal law committed by state []
officials."). "Because there is no explicit statute of limitations for 42 U.S.C. § 1983 actions, the
courts borrow the personal injury statute of limitations from the relevant state." Brown v. Harris,

No. 3:10CV613, 2012 WL 12383, at *1 (E.D. Va. Jan. 3, 2012), aff'd. All F. App'x 175 (4th Cir.
2012). In Virginia, the relevant statute of limitations is two years. Amr v. Moore, No.
3:09CV667,2010 WL 3154576, at *5 (E.D. Va. June 21,2010), report and recommendation

adopted. No. 3:09CV667, 2010 WL 3154567 (E.D. Va. Aug. 9,2010), ajfd, 411 F. App'x 584
(4th Cir. 2011).

The allegation in the Complaint concerns conduct which occurred more than two years
prior to the filing of the Complaint on June 12,2017. Accordingly, the claim is beyond the
statute of limitations and is barred.

4. Immunity

Defendant Hughes contends that because she is the elected Clerk of Court for
Chesterfield County, Virginia she is entitled to immunity pursuant to the Eleventh Amendment
or under the doctrine of quasi-judicial immunity for actions taken in her official capacity.

"Under the Eleventh Amendment, states, state agencies, and state officials sued in their
official capacities are immune from suit." Manion v. N. Carolina Med. Bd, No. 16-2075, 2017

WL 2480609, at *2 (4th Cir. June 8, 2017). While "[a] state officer is generally not immune

under common law for failure to perform a required ministerial act[,]" McCray v. State ofMd,
456 F.2d 1,4 (4th Cir. 1972), this Court has repeatedly held that a Clerk of Court is entitled to
derivative absolute judicial immunity for acts undertaken under the Court's direction. See, e.g..

Battle V. Whitehurst, 831 F. Supp. 522, 528 (E.D. Va. 1993), aff'd, 36 F.3d 1091 (4th Cir. 1994).
The allegations in the Complaint against Defendant Hughes concern actions she
undertook at the direction of the Chancery Court including: recording court orders in the case
management system, updating Plaintiffs records in the "inmate management system", and
serving court orders on the Plaintiff. These actions were all undertaken pursuant to the orders
entered in the Virginia courts and are appropriately dismissed at this stage. Plaintiff also alleges

that Defendant Hughes participated in the racketeering enterprise with the other Defendants to
fraudulently incarcerate Plaintiff but even if these claims relate to conduct outside of the scope of

Defendant Hughes' official duty, such claims are inadequately pleaded for the reasons discussed
above and also should be dismissed.
B. Mary Craze - Failure to State a Claim

Defendant Craze was the acting Clerk of Court for Chesterfield County Circuit Court in
2014. She identifies herself in her Motion as a Deputy Clerk of Court. See Dkt. No. 13 at 1;
Dkt. No. 1 fll6, 43. Plaintiff alleges five counts against Defendant Craze, the same counts

alleged against Defendant Hughes with the exception of the perjury claim.
Defendant Craze moves to dismiss for substantially the same reasons raised by Defendant

Hughes. Defendant Craze does not offer the defense that claims against her are barred by the
Eleventh Amendment. Because the claims against Defendant Craze are the same as those made
against Defendant Hughes, the claims against Defendant Craze are dismissed for the reasons
discussed above.

C. Judy Worthington - Failure to State a Claim

Defendant Worthington is the former Clerk of Court for Chesterfield County Circuit

Court. Plaintiff alleges eight counts against Defendant Worthington: (1) violation of Due

Process Clause "by arranging hearing dated 6/8/12, at conspiracy and ex parte communication
with Mr. Clark, without notice to Chien, and without to adapt a day when Chien was available";
(2) violation of Va. Code § 18.2-472 for tampering with Plaintiffs inmate records before April
2014; (3) perjury; (4) violation of Va. Code § 18.2-472 for perjuring court documents; (5)
violation of Due Process Clause for an order of the Commissioner of the Court of Chancery
dated February 18, 2014; (6) violation of Va. Code § 18.2-472 and Va. S. Ct. R. 1:1 for

tampering with court records; (7) violation of 18 U.S.C. § 1959(a)(4); and (8) violation of 18
U.S.C. §§ 241-242 by illegally incarcerating Plaintiff with others.
Defendant Worthington moves to dismiss for failure to state a claim upon which relief
can be granted. Specifically, Defendant Worthington submits that Counts 1 and 5, which assert

denial of Due Process are time barred; the criminal counts 2, 3,4, 6, and 8 do not provide a civil
cause of action; Count 7 fails to state a claim for civil RICO; to the extent she has been sued in

her official capacity such claims are barred by the Eleventh Amendment; and she is entitled to
quasi-judicial immunity.

Just as with Defendants Hughes and Craze, the allegations against Defendant
Worthington fail for the numerous reasons set forth in the preceding sections.
D. Karl Leonard - Failure to State a Claim

Defendant Leonard is the Sheriff for Chesterfield County. Plaintiff alleges: (1) eight
counts against Defendant Leonard for violations of 18 U.S.C. §§ 241-42 for conspiring to arrest

and incarcerate Plaintiff; (2) two counts for violating the Due Process Clause for not serving a

court order on Plaintiff in person and failing to assign him an attorney; (3) one count for
violating Va. Code § 18.2-472 for failing to input Plaintiffs information into the Virginia State
Police records; (4) one count for violation of 42 U.S.C. § 1983 for violating Plaintiff s due

process rights; (5) four counts for violatingthe Eighth Amendmentby publicly embarrassing
Plaintiff during his arrest and incarceration; (6) one count of violating 18 U.S.C. § 1959(a)(4)for
joining in the racketeering acts with the other defendants.
Defendant Leonard contends that the case should be transferred for lack of venue

pursuant to Fed. R. Civ. P. 12(b)(3) or dismissed for failure to state a claim. With respect to
venue, Defendant Leonard does not dispute that the Eastern District of Virginia is the appropriate
district court but submits that, pursuant to Local Rule 3(C) of the Eastern District, the case must

also be brought in the proper division as well. Pursuant to Local Rule 3(B)(4), Chesterfield

County isencompassed by the Richmond Division ofthe Eastem District."^
With respect to the failure to state a claim, Defendant submits that Plaintiffs criminal
claims cannot be brought in a civil action; Plaintiff fails to state a claim for civil RICO;
Defendant Leonard is entitled to Eleventh Amendment immunity for acts in his official capacity;

the suit alleges violations which are not attributable to Defendant Leonard or predate his election
as the Sheriff of Chesterfield County on February 1, 2014; Plaintiff fails to state an Eighth
Amendment claim; Plaintiffs due process claims are time barred; and Defendant Leonard is
entitled to qualified immunity.

With the exception of the four counts alleging violations of the Eighth Amendment, all of
the claims against Defendant Leonard are deficient in the same respects as those alleged against
the preceding Defendants. Furthermore, Plaintiff has failed to state a claim for relief under the
Defendant Leonard submits that the same venue issues likely apply to the other Defendants who largely live in
Chesterfield County or other surrounding counties also in the Richmond Division. No other Defendant has argued
for dismissal or transfer for lack of venue.

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Eighth Amendment. Plaintiff specifically alleges that he suffered cruel and unusual punishment
in violation of the Eighth Amendment because he was shackled and dressed in a prison uniform

when transported from the prison to attend hearings at the office of William K. Grogan, the
Commissioner of the Chancery Court of Virginia. Dkt. No. 1 at 17, H10. The office was on a
public commercial street and Plaintiff alleges that he was walked on the sidewalk of the street
and at other times through a fully occupied parking lot to access the building thereby causing
him public disgrace, shame, and embarrassment. Id.
"[T]o make out a prima facie case that prison conditions violate the Eighth Amendment,

a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate
indifference to prison conditions on the part of prison officials." King v. Rubenstein, 825 F.3d
206, 218 (4th Cir. 2016) (internal quotations and citations omitted). In the context of
transporting a prisoner to a court appearance, this Court has held that placing a prisoner in a
three-point restraint and denying him bathroom privileges for a two-hour period, during which
the prisoner twice urinated on himself before appearing in Court, did not constitute an Eighth
Amendment violation. Davis v. Watson, No. 2:15CV146,2015 WL 13049846, at *2 (E.D. Va.
Nov. 17,2015), ajfd, 650 F. App'x 842 (4th Cir. 2016), cert, denied, 137 S. Ct. 578, 196 L. Ed.
2d 454 (2016). The Court observed that the allegations of discomfort and humiliation in Davis

did not rise to the level of a serious or significant emotional injury. Id.
If being forced to travel in restraints and appear in Court in a soiled jumpsuit is

insufficiently humiliating to give rise to an Eighth Amendment claim, it reasonably follows that
being forced to travel in restraints without the other factors present in Davis is similarly
insufficient to state a claim for relief under the Eighth Amendment. See id.; see also Brown v.

Pepe, 42 F. Supp. 3d 310, 317 (D. Mass. 2014) (forcing Defendant to participate in a "perp

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walk" before the media in full restraints did not constitute a violation of the Eighth Amendment),

affd (June 19,2015). Furthermore, Plaintiffs alleged injuries of public disgrace, shame, and
embarrassment are insufficient on their own to rise to the level of a serious or significant
emotional injury cognizable under the Eighth Amendment. See Davis, 2015 WL 13049846, at

*2; Dkt. No. 1 at 17. Accordingly, this claim is dismissed along with the other claims against
Defendant Leonard.
E. Chesterfield County - Failure to State a Claim

Defendant Chesterfield County is a political subdivision of the Commonwealth of

Virginia. Plaintiff alleges five counts against Defendant Chesterfield County: (1) liability under
42 U.S.C. § 1983 for directly using taxpayer money to engage in racketeering enterprises; (2)
gross negligence for concealing Plaintiffs status as an inmate; (3) liability under 42 U.S.C. §

1983 for abusing the authority of the Circuit Court to detain Plaintiff; (4) abusing the authority of
the Circuit Court by allowing the ghost-writing of orders of the Commissioner in Chancery to

incarcerate Plaintiff; (5) gross negligence for the training and supervising of the employees
elsewhere named as defendants in this action.

Defendant Chesterfield County contends that Plaintiff has failed to state a claim for relief

under § 1983; the County is immune from state law gross negligence claims; and the only
remaining count (4) fails to state a claim upon which relief can be granted. These issues are
addressed in turn.

1. 42 U.S.C. § 1983 Claims - Counts 1 and 3

"A municipality or other local government may be liable under [Section 1983] if the

governmental body itself 'subjects' a person to a deprivationof rights or 'causes' a person 'to be
subjected' to such deprivation." Connickv. Thompson, 563 U.S. 51,131 S.Ct. 1350,1359, 179

12

L.Ed.2d 417 (2011) (citing Monell v. New York City Dep 7 ofSocial Servs., 436 U.S. 658, 692,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). But this liability only extends to the acts of the local

government and not the actions of employees under a theory of respondeat superior. Id. Thus
"Plaintiffmust show that the City deprived him of a constitutional right 'through an official
policy or custom.' " Moody v. City ofNewport News, Va., 93 F. Supp. 3d 516, 529 (E.D. Va.
2015) (quoting Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.2003)).
The § 1983 claims are dismissed for three reasons. First, the Complaint does not point to
a specific policy or custom of the municipality which deprived Plaintiff of his constitutional
rights or acts undertaken by officers pursuant to a specific policy or custom. Second, the

purported employees of the County identified by the Plaintiff: clerks of court; the sheriff; and

judicial officers; are not employees of the County but rather "constitutional officers" not subject
to the authority of the local government. See Carraway v. Hill, 265 Va. 20, 24, 574 S.E.2d 274,
276 (2003) ("constitutional officer is an independent public official whose authority is derived

from the Constitution of Virginia even though the duties of the office may be prescribed by
statute."); see also Hilton v. Amburgey, 198 Va. 727, 729, 96 S.E.2d 151,153 (1957) (holding
that sheriffs, clerks of court, treasurers, commonwealth's attorneys, and commissioners of
revenue are constitutional officers); Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir. 1993)
(finding that a municipality is not generally liable for the actions of its sheriff who is a
constitutional officer); Lloyd v. Morgan, No. 4:14CV107, 2015 WL 1288346, at *12 (E.D. Va.
Mar. 20, 2015) ("Like the sheriff, the clerk of court is a constitutional officer."). The county

judges are also constitutional officers. Foster v. Jones, 79 Va. 642, 645 (1884) ("Now, it will be
observed that the office of county judge is fixed by the constitution, and the term of office is
clearly defined in the same instrument. It is, therefore, a constitutional office, and the county

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judge is a constitutional officer."). Third, the claims against Defendant Commonwealth were not
brought within the appropriate two-year statute of limitations for these actions.

Accordingly, the claims under 42 U.S.C. § 1983 against Defendant County are dismissed.
2. Gross Negligence - Counts 2 and 5

Defendant Covmty contends that the gross negligence claims in Counts 2 and 5 must be
dismissed because sovereign immunity precludes gross negligence claims. Dkt. No. 28 at 7.

"Counties, as political subdivisions of the Commonwealth, enjoy the same tort immunity as does
the sovereign." Seabolt v. Cty. ofAlbemarle, 283 Va. 717, 719, 724 S.E.2d 715, 716 (2012).

Defendant Coimty is unquestionably a political subdivision of the Commonwealth and has not

explicitly waived its immunity to suit for the causes of action alleged in the Complaint. "Thus,
even accepting as true the allegations of [Defendant's] gross negligence, the Court finds that

[these] claims under Virginia law are barred by sovereign immunity." B.M.H. by C.B. v. Sch.
Bd ofCity ofChesapeake, Va., 833 F. Supp, 560, 573 (E.D. Va. 1993).
3. Abuse of Authority - Count 4

In Count 4 Plaintiff alleges that a private attorney "ghost-wrote" orders on behalf of the

Commissioner of Chancery in order to imprison Plaintiff See Dkt. No. 1 at 123, ^ 159(d).
Plaintiff offers no legal basis for asserting liability against the Defendant County for these acts.
While the pro se pleading is liberally construed, there does not appear to be any construable
claim against the Defendant County in Count 4 because even if an individual did write orders on
behalf of the Commissioner, there is no allegation that the Defendant County knew of the acts or
authorized them. On the contrary, for the reasons discussed above, the Defendant County does
not exert control over the judicial officers in a manner which would confer liability in this case.
Accordingly, Count 4 is dismissed.

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F. Commonwealth of Virginia, Mark Herring, Hon. Glen Huff, Hon. Donald Lemons,
Hon. Frederick Rockwell, and Hon. Allan Sharrett - Lack of Subject Matter
Jurisdiction and Failure to State a Claim

The remaining Defendants: the Commonwealthof Virginia; the Attorney General of

Virginia; and various Virginia state-courtjudges havejoined in filing a single motion to dismiss
for lack of subject matterjurisdiction and failure to state a claim. Defendants provide three
grounds upon which the Court should dismiss the Complaint for lack of subject matter

jurisdiction. First, Plaintiffs action against the Commonwealthof Virginia is barred by the
Eleventh Amendment. Second, Defendants contend that this case is governed by the Rooker-

Feldman doctrine which prohibits federal court review of state-court decisions. Third,
Defendants contend that Plaintiffs suit is barred by the doctrine of res judicata.

The Rooker-Feldman and res judicata arguments mirror those raised by the defendants in
Chien v. William K. Grogan, et al, l:17-cv-358. In short. Plaintiff has repeatedly sought to

relitigate the decisions of the Chancery Court and Circuit Court of Virginia through lawsuits in
the federal courts of Virginia and Connecticut. These collateral challenges are precluded by the
Rooker-Feldman doctrine. See, e.g., Willner v. Frey, 243 F. App'x 744, 745-46 (4th Cir. 2007)
(unpublished). In the present Complaint, Plaintiff seeks to hold these Defendants liable for the
decisions rendered by orders of the Virginia state court or to overturn those earlier decisions.
See, e.g., Dkt. No. 1 at 117,1155(c) (alleging that Defendant Huff "intended to mishandle that
appeal by avoiding making trial" and requesting that the court order "the [Virginia] trial court to
make trial of Chien's evidence"). This Court does not have jurisdiction to provide the relief

sought against these Defendants. The appropriate venue for such claims is the state courts of
Virginia of which the Plaintiff has already thoroughly availed himself. Accordingly, the
Complaint is dismissed as to these Defendants for lack of subject matter jurisdiction.

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The remaining Defendants also move to dismiss for failure to state a claim. Specifically,

they contend thatJudge Rockwell, ChiefJustice Lemons, ChiefJudge Huff, andJudge Sharrett
are entitled to absolute judicial immunity underfederal and state law. Furthermore, all of the
remaining Defendants are entitled to quasi-judicial immunity. Because the Court lacks subject
matterjurisdiction overthe claims it neednot consider whether Plaintiffhas failed to state a
claim upon which relief can be granted against these Defendants.
IV. Conclusion

For the foregoing reasons, the CourtGRANTS the Motions to Dismiss. (Dkt. Nos. 9,12,
15,19, 23,27). The Complaint is dismissed WITH PREJUDICE.
An appropriate order shall issue.

August

2017

United StateilJlS^rict Judge

Alexandria, Virginia

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