Harbeck v. Smith et al

Filing 48

OPINION AND ORDER that the Court GRANTS Boyle's motion to dismiss. The Court GRANTS IN PART and DENIES IN PART the Smith and Winston motions to dismiss. Entered 8/29/11 and filed 8/30/11. (Signed by District Judge Mark S. Davis on 8/29/11). (ecav, )

FILED,
UNITED

STATES

DISTRICT

EASTERN DISTRICT

AUG 3 0 2011

COURT

OF VIRGINIA

Newport News Division

CLERK. U.S. DISlRiCT COURT
Nr,H=Ol K. VA

RACHEL

IRIS

HARBECK,

Plaintiff,
v.

Civil

LINDA BATCHELOR SMITH,
MICHELE WINSTON,

WILLIAM BOYLE,

Action No.

4:10cvl40

and

and

Esquire,

Defendants.

OPINION AND

This matter
by

William

Michele

the

"Plaintiff")
the

Court

1

The

the Court

("Boyle"),

Linda

("Winston,"
Court

on motions

and

dismiss

B.

Rachel

Rules

of

Civil

argument

on

Court

will

refer

filed

("Smith"),

and

"Defendants"),

Harbeck's

Plaintiff's

Complaint

title

complaint

Smith

Procedure.

oral

the

to dismiss

collectively

held

Plaintiff's

that

point,

attach
for

given
this
a

leave

instructed

to

throughout

Second

motion
Court

before

("Harbeck"

or

Second Amended Complaint1 pursuant to Rule 12(b)(6)

Federal

Amended

is

Boyle

Winston

requesting

of

is

ORDER

to

this

it

Amended

Court

to

that

and instructed her to

file

by

would

and
is

considered.

the

In

consider

a new amended complaint.

that

actuality,

first

amended

did,

Complaint"
oral

the

Second

because

Plaintiff

after

2011,

Plaintiff's

as

Order
the

"Amended
not

8,

dismiss

Plaintiff.

however,
it

June

complaint

Opinion

titled

amend,

her

to

Complaint

has

document

motions

On

at

one

to

her

argument,

the

that

document

original
to

Complaint,

as

amend her original

request for leave,

well

as

on

Complaint.

Plaintiff

Plaintiff's
The

Court

motion

filed her Second Amended Complaint,

responded by filing the motions

above.

examining

the

those

Second Amended Complaint,

argument,

Boyle's
GRANTS

for

motion
IN

the

to

PART

motions,
and

forth

below,

dismiss.

As

to

IN

PART

Smith

briefs,

raised during oral
the

and

each

to dismiss noted

associated

points

set

DENIES

the

the

reasons

AND

leave

granted Plaintiff's

and Defendants
After

for

Court

Winston,

of

their

GRANTS

the

Court

motions

to

dismiss.

I. Facts and Procedural History2
A.

Plaintiff

initiated

this

Facts

lawsuit

in

response

to

events

occurring in late 2009 and early 2010.

These events resulted in

Plaintiff

according

being

for eighty-seven

On

or

about

unlawfully
(87)

imprisoned,

to

Plaintiff,

days.

October

22,

2009,

Plaintiff

"threatening to burn her mother's house"

was

arrested

in violation of

for

section

2 The
facts
recited here
are
drawn
from
Plaintiff's
Second
Amended
Complaint
and
are
assumed
true
for
the
purpose
of
deciding the motion currently before the Court.
They are not to
be
considered
factual
findings
for
any
purpose
other
than
consideration
of
the
pending motion
to
dismiss.
See
Nemet
Chevrolet, Ltd. v. Consumeraffairs.com,
591 F.3d 250, 255
(4th

Cir. 2009)
(w...in evaluating a Rule 12(b)(6) motion to dismiss,
a court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in weighing
the

legal sufficiency of

the complaint.").

18.2-83

of

the

Plaintiff

Code

of

Virginia.

was

immediately

Regional

Jail.

Second

Boyle,

public

a

Juvenile

of

Hampton

City

of

court

criminal

2009,

the

jury

by

charge
the

However,

case.

the

to

was

H

City

4,

and

never

Compl.

the

H

Hampton

Hampton,

7.

Roads

thereafter,

Virginia,

was

Relations

District

Court

Plaintiff

in

state

On

was

Domestic

Am.

Shortly

of

9.

Plaintiff

in

8.

represent

Compl.

Juvenile

1

and Domestic

against

Plaintiff

Compl.

in

appointed by the
the

incarcerated

Am.

defender

Second

or

about

certified

Relations

actually

that

December

to

the

District

indicted

for

22,

grand
Court.

the

offense

by the Circuit Court grand jury.

On

or

about

that

Amended

Complaint

Attorney

for

that

the

case,

the

same

alleges
City

of

Commonwealth

despite

the

that

motion

in

not

having

Compl.

the

an

Hampton,

would

Second Am.

December

that

charge

indictment.
set

day,

events

22,

Assistant

Charisse
pursue
been

H 11;

an

A.

which

the

Second

Commonwealth's

Mullen,

determined

indictment

certified

Ex.

upon

2009,

for

in

the

such

an

It is this decision
Plaintiff

bases

her

Second Amended Complaint.
After

letter

to

letter

Mullen made

was

Clerk

the

of

Boyle

"office

of

determination,

informing him of

also

Court

this

sent

"to

for

the

the

Clerk

the

Circuit

of

allegedly

the decision.

attention
Court

Court

she

of

for

sent

A copy of

that

of

Smith,"

the

the

City

Hampton,

the

of

Circuit

Court

a

elected

of

at

the

City

of

Hampton,

Plaintiff

Amended

has

Virginia."

attached

Complaint.

Commonwealth

a

In

would

Second

copy

of

this

pertinent

not

effect

is

related

Ex.

A.

that

Compl.
a

U

copy

11;
of

this

information,

was

to

of

Plaintiff

to

"may be

According
or

serve

released of

to

the

subsequently sent

received

for

the

2010.3

by

Smith,

Circuit

Court

Id.

occasions

avail.

that

she

was

Am.

Complaint

and/or Winston

2010,

from Circuit

The

Court

Plaintiff

is

letter

the

to

the

any bond

burn

in

charge.

containing

Second Am.

that

Winston,
City

supposed

H

this

a

of

similar

Compl.

subsequent

Deputy

Hampton,

Court

state

be

"on

a

Judge

how

to

Clerk
on

released,

14.

that

received

to

on

the

H 13.
letter

of

Court

December

22,

Plaintiff notified Boyle on two separate

Compl.

unsure

intended

by

the

on a separate occasion to

alleges

the

alleges

Smith

3

of

Thereafter,

Second

Amended

and

that

Second Amended Complaint,

office of the Clerk of Court by Mullen.

was

to

11.

Second

as notice

threatening

another

Second Amended Complaint

2,

the

advised

the"

The

to

it

Plaintiff

letter,

letter

HI

part,

threatening to burn charge and it was

that

Compl.

indictment

seek

"Clerk's Office"

Am.

or

about

Criminal

Taylor,

the

dated
which

this

letter

the

January

Order

interpret

that

time

Additionally,

Wilford

to

each

to

Second

4,

2010,

January
stated

4,

that

statement.

was

no

received

If

on

December 22,
2009
(rather than 2010),
then such receipt would
not be "subsequent"
to the letter Mullen sent on December 22,
2009,
discussed earlier.
If Plaintiff intended to state that
the letter was received on December 22, 2 010, this would be nine
months after her eventual release from jail.

no indictment was presented against Plaintiff on the charge
which she was incarcerated"

and therefore she is to

from

to

any

bond"

Second Am.

applicable

Compl.

According

22,

2009,

1 15;

to

Ex.

was

of

no

the Defendants

no

longer

though

Compl.

H

March

19,

Boyle's

20.

the

Hampton,

Second Am.
spent

when

action to

any

Virginia,

against

was

1

Court
and

23.

legal

Compl.
at

of

December

was

In

the

Circuit

days

in

jail,

her,

because

there was

Second Am.

from

James

jail

on

Gochenour,

went

to

the

City

Court

of

the

release

in

motion."

Plaintiff

after

"none

incarcerated,

situation,

Plaintiff's

total,

that

released

Defender

for the

set

Jail

incarcerated."

Public

keeping

However,

Plaintiff

eventually

of

for

all

alleges

the

Defendants

that

charges

had been

failed

to

she

take

any

release her.

Plaintiff
Defendants

under

charge.

as

H 17.

B.

this

burn

basis

the

keeping

she

"learned

eighty-seven

dismissed

knew

Clerk of

Compl.

for

Hampton

supervisor,

office of
of

basis

Plaintiff

2010

longer

Second Am.

Defendants

to

Complaint,

notified personnel

legal

"be released

B.

Second Amended

Plaintiff incarcerated.

even

threatening

the

there

any

the

for

Smith

Complaint,
Rule

filed
and

both

12 (b) (6)

Procedural

History

a

Complaint

in

Boyle

Boyle
of

the

on

October

and

Smith

Federal

this
28,

2010.

filed

Rules

Court

of

against
In

response

motions
Civil

only

to

to

dismiss

Procedure

on

November
Nos.

6

22,

2010

and

9.

In

turn,

&

amend

her

Complaint

Plaintiff

informed

Complaint

because

omitted

from

Amendment
Mot.

held

to
a

her

Complaint,

Docket

Court

Complaint"

On

leave,

she

given

In

2011,

this

factual
also

and

added

count

to

were

On

to

anticipated
to

motion,

amend

her

add a Fourth
violation."

8,

2011,

above.

Plaintiff

to

inadvertently

June

discussed

each

Plaintiff

The

leave

amended

Dismiss

In

Count

Defendant,

under

42

U.S.C.

rights

under

her

United

I,

States

each Defendant

as

not

an

§

the
next

to amend

complaint,

terminated."

with

false

a

and
In

that

Count

against

each

II,

under

This

Defendants,

against

Fourteenth

to

requested

Defendant.

claim

imprisonment

Amended

addition

she

claim

claiming

Fourth

in

against

a

brings

Constitution.

Second

which

counts

assert

1983,

the

for

additional

five

Plaintiff

her

Complaint,

changes

asserts

does

filed

Amended

legal

Defendant.

charges

20.

Motions

Winston

though,

the

wished

needs

leave

this

Eighth Amendment

No.

the

Second

Complaint

to

the

for

In

facts

granting

previous

Second Amended

violated

she

motions

an Order

and,

23,

Complaint.
the

the

motion

"Plaintiff

Docket

on

a

Docket

32.

June

making

and

respectively.

2011.

basic

2;

signed

21,

that

and discard

"Defendants'
No.

Court

2010
filed

January

"[c]ertain

hearing

the

deemed

on

Amend

day,

8,

Plaintiff

the

violation

Leave

Court

the

December

each

each

Defendant
Amendments
Plaintiff

the

laws

of

the

Commonwealth

Boyle

of

alleged

cause

of

legal

In

malpractice

with

detention.

In

unlawful

of

Virginia.

action

Finally,

in

punitive

damages

for

Count

Count

Plaintiff

against

all

III,

respect

negligence

V,

Count

to

IV,

his

Smith

a

cause

Defendants.

In

accuses

role

Plaintiff

against

asserts

Plaintiff

in

her

asserts

and

of

a

Winston.

action

response

to

for

these

allegations,

Defendants Smith and Boyle once again filed motions

to dismiss.

Docket Nos.

added party,

also filed a motion to dismiss

and Boyle.

Docket

No.

34

& 36.

45.

Defendant Winston,

The

Court

as a newly

shortly after Smith

considers

these

motions

below.

II.

Federal

Rule

of

Standard of Review

Civil

Procedure

12(b)(6)

permits
"failure

to

defendant to seek dismissal based on the plaintiff's

a

state a
P.

claim upon which relief

12 (b) (6).

pursuant
the

A

to Rule

court

in

Giacomelli,

588

dismiss

failure

for

complaint
relief

does

that

Twombly,
plausible

550
does

not

assess

plaintiff's

186,

192

to

state

allege

plausible

U.S.

must

a

the

F.3d

not

is

considering

12 (b) (6)

allegations

can be

544,

(4th

a

on

its

570

impose

the

Fed.

to

legal

to

face."

be

motion

granted

if

of
v.

to
the

a

claim

to

Atl.

Corp.

v.

claim

be

Requiring

probability

filed

Francis

A

state

Bell

Civ.

sufficiency

2009).

should

R.

dismiss

complaint.

facts

(2007) .
a

motion

Cir.

claim

"enough

granted."

a

requirement

at

the

pleading stage.
a

Id^ at 556.

"sheer

possibility

Ashcroft v.

Iqbal,

facial

that

allows

the

that

a

S.

Ct.

129

plausibility

However,

when

court

it does ask for more than

defendant

1937,

the

has

1949

plaintiff

acted

(2009).
pleads

to draw the reasonable

"does

12(b)(6)

not

a claim,

N.C. v.
a

resolve

Martin,

and

consistent

2000).

contests

"assume
the

with

J.D.

are

facts"

and

the

Ltd.

the

to

conjunction

claim

8 (a) (2)
showing

by

not

the

that

8 (a) (2),

what

the...claim

as

so as
is

Rule

"a

and

facts

is

"...give
the

alleged
can
E.

be

175,

180

Mkts.,

(4th

is

the

proved,

Shore

alleged

Cir.

assumed,

drawn

12 (b) (6)

Civil

from

the

inferences,

to

be

relief,"

which

read

8(a)(2).

statement

defendant
upon

must

Procedure

plain

entitled

grounds

in

Id.

and

the

of

Accordingly,

unwarranted

to Rule
of

and

the merits

conclusions

short

pleader

to

F.3d

true

complaint

a

that

or arguments."

only

the

fact

the

"legal

accept

Federal

requires

P.

of

the

Id.

facts

213

that

1992).

allegations."

P'ship,

content

Republican Party of

all

any

dismiss pursuant

with

Civ.

of

of

factual

facts,

(4th Cir.

truth

truth

bound

"need

A motion

952

complaint's

Assocs.

not

the

unreasonable conclusions,

Rule

sufficiency of

surrounding the

existence

Although

courts

in

the

980 P.2d 943,

should

complaint

v.

tests

or the applicability of defenses."

court

Inc.

motion

"A claim has

inference

defendant is liable for the misconduct alleged."
A

unlawfully."

of

the

Fed.

R.

fair notice of
it

rests...."

Bell Atl.
U.S.

41,

Corp. ,
47

a

(even

if

327

dismiss

555

a

in

Id.

at

unlikely.'"

if
Id.

556

the

complaint

at

555

(internal

not
of

(quoting

%that

a

Scheuer

a

and

on

are

the
true

citations

complaint's

Rhodes,

factual

Williams,
survive

recovery

v.

forth

countenance...dismissals

(quoting Neitzke v.

appears

355

face"

level

in

A complaint may therefore
it

setting

speculative

Id.

disbelief

by

Gibson,

"plausible on its

allegations

does

Conley v.

provided

the

fact)...."

judge's

is

to be

above

12(b)(6)

(1989)).
"even

the

(quoting

notice

relief

"Rule

on

Fair

all

doubtful

allegations."
319,

to

that

omitted).
based

at

for the complaint

right

assumption

U.S.

(1957)).

enough facts
"raise

550

is

U.S.

a motion to

very

416

4 90

remote

U.S.

and

232,

23 6

(1974)).

Where
the

Court

alleged."
to

a

a

motion
"must

It

be

"must

certainty

to

under

any

by

facts

alleged.'"

1149,

1152

legal

(4th Cir.

dismiss

the

relief
the

a

civil

vespecially

not

that

dismiss

the

plaintiff

solicitous'

complaint
would

theory which might
Harrison

v.

rights

U.S.

claim
of

be

wrongs

it

appears

entitled

plausibly be
Postal

filed,

the

'unless

not

is

Serv.,

1988)(internal citation omitted).

to

suggested
84 0

F.2d

III.

Discussion

A.
1.
Under 42

Boyle's Motion to Dismiss
Count I

U.S.C.

§

-

42 U.S.C.

§

1983

1983,

[e]very
person
who,
under
color
of
any
statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, 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....

42 U.S.C.

§ 1983.

According to the Fourth Circuit,

civil rights claim based upon §

* [A]
the

plaintiff

Constitution

that

the

under

color

48

639

be

he

claim.

was

committed

law.'"

Crosby

2011)

v.

argues

that

Further,

States,
by

City

in mind,
§

1983

not

a

law for purposes

of

even

absolute

Plaintiff's

a
of

he

if

is

he

and

is

a

§

qualified

person

show

acting

Gastonia,

635

487

U.S.

in Boyle's motion
claim against
actor

who

him

acted

Additionally,

actor

immunity

Boyle argues that Plaintiff has

10

and must

1983.

state

secured by

Atkins,

state

because

state

has

that

a right

(quoting West v.

With these elements

contends

he

United

deprivation

dismissed

purposes,

the violation of
the

{4th Cir.

under color of
Boyle

laws

federal

1983 has two essential elements:

of

state

(1988)).

to dismiss
must

of

allege

and

alleged

F.3d 634,

42,

must

"[a]

for

from

§

1983

such

a

failed to plead

sufficient

facts

violation.

to

support

The Court will

a

Fourth

first

or

address

Fourteenth

Boyle's

argument

he is not a person acting under color of state law.
correct

in

that

assertion,

the

Boyle's

additional defenses

Court

need

to Plaintiff's

not
§

Amendment

If Boyle is

address

1983

that

any

of

claim because

the lack of state action would be dispositive on the issue.
Both Plaintiff and Boyle begin their discussion of whether

a public
the

defender

Supreme

Court

(1981).

In

represent

Dodson

Id.

at

his

Polk

314.

counsel

is

acting under

case

of

Polk

County,
in

the

However,

a

public

appeal

that

color

County v.

of

during the

concluded

the

of

Pods on,

defender
his

of

was

this

claims
Id^

court,

Dodson argued that his

actions,

motion

to

withdraw,

subjected him

to

due process of

had

law."

The
v.

by

color of

virtue

wrongdoer
Cnty.,

313

Id.

454

of

is

U.S.

at

state

clothed

U.S.

299

state

at

him

and unusual

of

(1941),

his

appointed
for

to

robbery.

frivolous

and

"especially her

right

punishment,

its analysis

to

and

counsel,

denied

him

which held

with United States
that

only when

exercising

law

and

possible

317-18

312

Before the district

law

with

U.S.

315.

Polk County Court began

Classic,

under

cruel

deprived

law with

representation,

were

she moved for permission to withdraw.
lawyer's

454

conviction

course

Dodson's

state

the

made

authority

(quoting
11

of

Classic,

"a person acts

power
only

state
313

'possessed

because

law.'"
U.S.

at

the

Polk
326).

With that standard in mind,
role of

the Supreme Court concluded that the

the public defender,

"entailed

functions

authority."

Id.

as

a representative of

and obligations

at 318.

the

client,

in no way dependent on state

The Court continued,

in
our
system
a
defense
lawyer
characteristically
opposes
the
designated
representatives
of
the
State.... [The
system]
posits
that
a defense
lawyer

best serves the public, not by acting on behalf of the
State or in concert with it, but rather by advancing
"the undivided interests of his client."
This is
essentially a private function,
traditionally filled
by
retained
counsel,
for
which
state
office
and
authority are not needed.

Id.

at

318-19

(citations

omitted) .

concluded

"that

a

state

when

performing

law

counsel

to

However,

a

public

defendant

the

Court

"that

a public

25.

For

example,

acts

under

color

in

took

defender

the
of

Id.

at

the
that

a

does

lawyer's
criminal

heed

to

never

acts

Court

and

result,

act

that

that

"when

it

of

functions

as

Id.

making

a

suggest

Id^

at

public

hiring

and possibly

at

not

did

role."

that

Court

color

proceeding."

in

possibly

the

under

traditional

indicated

law

a

not

note

the State"

administrative

325.

324-

defender

and

firing

"while performing

investigative

functions."

325.

In reaching this
notion

a

state

decisions on behalf of
certain

defender

As

that

public
the

a

public

defender

fact

that

conclusion,
defender

is
the

the Supreme

is

employed
state

is

a

by

state

the

Court

actor

state.

merely

The

a public defender's

12

rejected the
because

Court

held

employer

is

a relevant

factor,

but

that

factor alone

is

"insufficient

to

establish that a public defender acts under color of state law."

Id,, at 321.
Cir.

See Mentavlos v. Anderson, 249 F.3d 301, 312

2001)

(citations omitted)

(4th

(characterizing the Polk County

decision as "holding that actions of a public defender employed
by

the

State

were

private

despite public

employment

because

a

public defender does 'not act on behalf of the State; he is the
State's adversary.'").

The Supreme Court elaborated on its Polk County decision in
several subsequent cases.

U.S.

922

(1982),

In Lugar v.

Edmondson Oil Co.,

the Court noted that

in Polk County

457

it had

concluded "that a public defender, although a state employee, in
the

day-to-day

defense

of

his

client,

acts

under

canons

professional ethics in a role adversarial to the State."

935 n.18.

"Accordingly,

sufficient

to

analysis,

render

it was

Supreme

There,

in
Court

Id_, at

although state employment is generally

the

defendant

a

♦peculiarly difficult'

state

actor

Georgia

v.

McCollum,

further

explained

its

under

our

to detect any action of

the State in the circumstances of that case."
omitted).

of

505

U.S.

holding

Id^
42
in

(citations
(1992),

Polk

the

County.

it held that Polk County stood for the premise that the

adversarial relationship between a public defender and the state

"prevented

the

sufficient

to

attorney's
support

a

public

employment

finding of

state

13

from

action."

alone

being

Id^ at

54

(emphasis
that

in

state

in original).
order

law

context

to

has

of

determine

taken

the

The McCollum Court went on to conclude
whether

place,

function

one

[the

an

must

action
at

the

defender]

public

look

under

is

color

of

"nature

and

performing."

Id.

In

the

present

case,

Plaintiff

asserts

that

Boyle

was

acting under color of state law when he failed to take action to
procure

Plaintiff's

release

from

"notified Boyle in writing,
on two different
Am.

Compl.

the

Jail

H

14,

that

Plaintiff

dates

that

was

she was

still

"had a duty

no

incarcerated,"

She

alleges

that

she

several months prior to her release,

that Boyle

there

jail.

longer

any

Second Am.

incarcerated,"

to

notify personnel

legal

Compl.

Second

^

basis

18,

for

at

keeping

and that Boyle

"had a duty to facilitate or secure Plaintiff's release from the

Jail."

Second Am.

alleged

"gross

Plaintiff's
Plaintiff

Even

Court

right

assuming

do

to

be

that

evaluating
concludes

Plaintiff

has

failed

was

acting,

to

plead

or

as a result of Boyle's

deliberate

indifference

Second

incarcerated

when
Court

However,

released,"

Plaintiff's

the

Boyle

and

illegally

12(b) (6),

that

H 19.

negligence

remained

must

Compl.

for

allegations

a

motion

for

the

facts

failing

law.
14

to

Am.

the

H

28,

Compl.

eighty-seven days.

are

to

to

true,

dismiss

following

which

under

Rule

reasons

that

supporting

the

act,

color

under

the

conclusion
of

state

While Plaintiff recognizes the general rule established in

Polk County that public defenders do not act under the color of
state

she

law when engaging

argues

that

this

in the representation of

case

falls

mentioned in Polk County.

within one

Specifically,

of

their client,

the

exceptions

Plaintiff asserts that

Boyle was performing an administrative function,

and,

he

cases

was

acting under

color of

cites for this proposition,
presently before

Plaintiff
States

Court

Clark

County,

case,

the

office,
that

the

however,

law.

The

the

Court

Appeals

Nevada,

for

319

administrative

are inapposite to the facts

to

F.3d
head

decision

of

the

Ninth

the

the

Circuit

in

Miranda

465
of

(9th

the

Cir.

county

in managing the office's resources,

required

defendants
resources

defendants

that

to

performed

allocated

Plaintiff

Court.

points
of

state

therefore,

to

undergo
poorly

their

2003).
public

that

defender's

exams,

the

exam

Id^

defense.

In

v.

instituted a policy

polygraph
on

United

at

with

having

the

fewer

468-69.

There,

the court determined that the defendant "was acting on behalf of
Clark

County

in

were

to be

office

determining
spent"

actor for purposes of
has

no

bearing

on

§

the

and

1983.

how

the

overall

therefore

he

Id^ at 469.

Court's

analysis

resources

qualified as

That case,
in

the

of
a

the

state

however,

present

case

because there have been no allegations that Boyle's inaction was

15

in response to or in furtherance of a policy designed to manage
state

administrative

concerns.

Plaintiff also cites
Defender Commission,

to Powers v.

501

F.3d

Sixth Circuit concluded that
that

case

Powers,

were

the

engage[d]

under

plaintiff

in

an

to be

ordered

color

fines."

of

"allege[d]

its

jailed as

(6th Cir.

state

a result of

at

where

612.

law.

the

actions

in

However,

in

that

the

Public

policy

or

custom

Defender

of

doing

constitutional

indigent clients'

Id^

2007),

the public defender's

across-the-board

nothing to protect
not

the

592

Hamilton County Public

rights

their inability to pay court-

To

the

Sixth

Circuit,

this

distinguished the case from the allegations in Polk County.

Powers,

In

the plaintiff did «not seek to recover on the basis of

the failures of his individual counsel,

but on the basis of an

alleged agency-wide policy or custom of routinely ignoring the
issue of indigency in the context of non-payment of fines."
It

was

that

allegation of

an unconstitutional

policy or

Id^

custom

that the court eventually determined was an allegation of state
action.

Id^

concluded
state's

that

at

613.

the

interests

state's adversary.

If

public

in

that

ld_^

such

a

policy

defender
context,

would

rather

In the present case,

no allegation that Boyle was acting,

existed,

be
than

the

court

"serving"

the

acting

the

as

Plaintiff has made

or failing to act,

pursuant

to an official policy or custom, or that Boyle was "serving" the
16

state

in his alleged malfeasance.

Moreover,

unlike

in Powers,

no allegations indicate that there was an administrative purpose

behind Boyle's alleged failure to act.

Consequently,

the Court

also finds Powers uninformative on the subject of whether Boyle
was

acting

under

color

of

state

law.

Therefore,

the

Court

concludes that none of the specific exceptions mentioned in Polk
County apply in the present

However,

concluding

the

that

Court

the

to

whether

cannot

end

exceptions

County do not apply.
look

case.

its

analysis

by

specifically mentioned

merely

in

Polk

McCollum counsels that the Court must also

the

nature

and

context

of

Boyle's

alleged

actions indicate that Boyle was acting under color of state law.4
in

Plaintiff's

allegations

Second

Amended

Complaint,

there

are

no

indicating that Boyle was acting at the behest of

the state or pursuant to a policy or custom promulgated by the
state.

Moreover,

Plaintiff

allege

nowhere in the Second Amended Complaint does

that

Boyle's

asserted

failure

to

obtain

Plaintiff's release was caused by any power Boyle '-possessed by
«
implicitly, the actions that could fall within the exceptions
noted in Polk County are the type of actions that, by their very
nature and context, can be said to "serve" the state or are

performed pursuant to power possessed by virtue of state law.
However, the exceptions noted in Polk County are not the only,
types of

such activities.

Therefore,

even though the Court has

concluded that the Polk County exceptions do not apply to the
current case, it still must look to the Second Amended Complaint
to examine whether Plaintiff has alleged actions that by their
nature and context can be said to have been taken under color of
state

law.
17

virtue of state law and made possible only because the wrongdoer

is clothed with the authority of state law."'

Polk Cnty. ,

454

U.S. at 317-18 (quoting Classic, 313 U.S. at 326).

Nor does the

Second Amended Complaint

that

allege,

in any manner,

inactions were serving a state interest.

Boyle's

As a result, the Court

concludes that Boyle was not acting under the color of state law
when he allegedly failed to take action to procure Plaintiff's
release from incarceration.
Second

Amended

Therefore,

Complaint,

violations under § 1983,
2.

which

Count I of Plaintiff's
alleges

is DISMISSED as to Boyle.

Count II

-

False Imprisonment

Plaintiff's Second Amended Complaint,

factual underpinnings

constitutional

supported by the same

as the allegations

discussed above,

also

alleges that "Plaintiff sustained and endured a direct restraint
of

her physical

liberty without

and «[e]ach Defendant caused,
encouraged

personnel

Plaintiff's

at

physical

justification."

adequate

induced,

the

Jail

liberty

legal

aided,
to

justification"

assisted,

directly

without

and/or
restrain

adequate

legal

Second Am. Compl. 1111 31-32.

While the Court has subject matter jurisdiction over the §
1983

claims

also

has

because

they

supplemental

federal claims,

raise

a

federal

jurisdiction

such as

ground that these claims

this

false

over

question,
the

the

Court

remaining,

non-

imprisonment claim,

are so related to the federal
18

on the
claims

that

they

can

controversy.
which

the

be

considered

part

See 28 U.S.C. § 1367 (a)
district

courts

have

of

the

same

case

or

(MUn any civil action of

original

jurisdiction,

the

district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case

or controversy....").

When analyzing such state court claims,

the Court applies federal law in analyzing procedural issues and
applies the legal rules that would be applied by the Virginia
courts when analyzing substantive issues of law.
Casey(

487 U.S.

131,

151

(1988)

York, 326 U.S. 99, 109 (1945))
304 U.S.

64

(quoting Guaranty Trust Co.

v.

("Under Erie R. Co. v. Tompkins,

(1938), when a federal court exercises diversity or

pendent jurisdiction over state-law claims,
litigation

in

the

same,

far

as

so

See Felder v.

federal
legal

court
rules

should

^the outcome of the

be

determine

substantially
the

outcome

litigation, as it would be if tried in a State court."').
respect to tort claims,

such as

false

imprisonment,

the

of

a

With

"Virginia

applies the doctrine of lex loci delicti, meaning the law of the
place of the wrong governs all matters related to the basis of
the right of action."

272 Va.

390,

Plaintiff
Virginia,

395

has

(2006)

alleged

with no

Dreher v.

Budget Rent-A-Car Sys.,

(citations omitted).

that

she

was

Therefore,

unlawfully

Inc.,

since

jailed

in

indication that any action or inaction took
19

place outside of the Commonwealth,

the Court will apply the

substantive law of Virginia.

Under Virginia law, false imprisonment is the -the direct

restraint by one person of

the physical

without adequate legal justification."'
Va. 492, 497

(1998)

906, 921 (1928)).
and battery,

liberty of

another

Jordan v. Shands,

(quoting W.T. Grant Co. v. Owens,

255

149 Va.

It is «>a wrong akin to the wrongs of assault

and consists

in imposing by force or threats an

unlawful restraint upon a man^s freedom of locomotion.'"
(quoting VLT^rant^o^,
action

for

malice,

false

ill

149 Va.

imprisonment

will

or

the

at

it

921).

is

slightest

Id,

«To maintain an

not

necessary

show

intention,

wrongful

to

and

neither the good faith of a defendant nor that of his employee
will defeat a plaintiffs right to recover."
v. cowdy, 207 Va. 47, 51 (1966)

in

the

imprisonment
overcome

case,

(citations omitted).

Plaintiff's

fails

to

state

motion

a

Plaintiff

present

to

dismiss

has

restrained

not

allegation

sufficient
under

plausibly

Plaintiff's

Zavre of Va., Inc.

Rule

alleged

physical

facts

that

liberty.

of

false

necessary

to

12(b)(6)

because

Boyle

directly

While

someone

certainly directly restrained Plaintiff by keeping her locked in
a jail cell,

the Second Amended Complaint shows that the person

was not Boyle.

that

Boyle

is

Plaintiff, perhaps recognizing as much, asserts

liable

because
20

he

"caused,

induced,

aided,

assisted,

and/or

Plaintiff.
Va.

624,

aids,

Second Am.
630

(1949)

assists,

bringing
officer

is

statement

in

all

arrested

in

with
of

that

was

plaintiff

up

to

Second

Amended

remedy

deliberate

reflects

direct

imprisonment

Complaint

support

a

upon

a

directly participated

and

in

connection

he

was

Count

Second

to

from

a

III

-

Sands

Legal

396

participant[s]"

best,
could

have

for

Such

fails

an

to

a

helped

or

with

pleading

satisfy

actionable

the

of

Plaintiff's

negligently

and

(1919),

prosecution

action.

result,

Court

the

false

DISMISSES

against Boyle.

Malpractice

Elements

Amended

Boyle.

Boyle

take

imprisonment

the
At

either

necessary

As

with

that

but

failed

"active

released.

alleges

false

were

based

such

who

element

against

imprisonment.").

defendants

a.

malpractice

judicial

of

claim.

Plaintiff's

committing

in

384,

far different

3.

unreasonably

Va.

situation,

Plaintiff's claim of

induces,

126

v.

Complaint

restraint

delay

189

Norwell,

Co.

indifference

facts

causes,

unlawful

from

Sanders,

is

time

Plaintiff's

such

restrain

Mullins

done

the

who

the

for

directly

plaintiff

&

the

before

language

actions

arrest

to

Second Amended

quoted

Sands

person

officer

person

the

in

to

See Mullins v.

any

an

liable

The

which deals
the

encourages

jail

H 32.

("Moreover,

facts

no

the

Compl.

likewise

statement.

in

or

the

However,

encouraged"

For

Complaint
the

21

same

also

reasons

alleges
that

the

legal
Court

applied

Virginia

apply

will
Under

law

Virginia

the

law

Virginia

to

to

law,

false

Plaintiff's

"'an

action

attorney

in

the

sounding

in

tort,

is

an

O'Connell

v.

Bean,

263

Va.

Kerr,

217

Va.

malpractice

has

duty

caused
278

by

by

Va.

57,

attorney;

(2009)

(2004)).

"A

burden

proving

of

negligence
damages.

proximately
244

alone

The

is

client
caused
352

In

the

present

Boyle

Plaintiff's
was

no

Compl.
Boyle

must

any

legal

H 35.

Further,
that

legal

the
a

services,

the

that

for

267

an
of

v.

Va.

Joynes,
495,

501

bears

the

fact

of

recovery

of

attorney's

claimed."

of

"[T]he

a

legal

proximately

action

support

v.

breach

Williams

Id.

the

Oleyar

a

were

Kruck,

while

existence
2)

that

an

contract.'"

action

malpractice

to

of

{quoting

duty;

duty."

Campbell

negligence
v.

Bettius,

omitted).

Second
duty

jail

basis

a

elements."

(citations

from

1)

Shipman v.

damages

of

of

damages

of

prove

case,

longer

breached

a

Plaintiff

release

3)

insufficient

(1992)

owed

elements:

breach

claim.

breach

cause

Court

negligence

(2002)

creating

three

the

347,

181

the

malpractice

the

for

"A

and

in

all

Va.

that

176,

(citing

plaintiff

for

action

separate

legal

claim,

professional

(1976)).

attorney's

62

of

relationship

the

the

90

three

attorney-client

that

performance

88,

imprisonment

once

Amended
to

he

for her

Complaint

facilitate

was

and

informed

incarceration.

alleges
secure

that

there

Second Am.

the Second Amended Complaint alleges that

duty

when

he
22

failed

to

take

such

action.

Moreover,
result

Plaintiff

of

asserts

[Boyle's

that

"[a]s

a

inaction]...Plaintiff

for a period of approximately 87 days."
While

Plaintiff's

requisite
call

as

legal
to

Second

Amended

elements

whether

of

the

omission

Virginia

that,

in

superseding
that

would

event

(citing
more
251

65
his

Williams

than
Va.

one

122,

the

order

the

slightest

superseding

any

a

particular

to

is

22.

a

the

close

one

of

an

act

is

sequence

event

of

an

167

and

event."

Panousos

a

the

and

injury."
act

negligence."

23

245

by

was

at

62

may

be

Payne,
60,

for

between

the

so

the
at

entirely
that

it

defendant

in

129

(citations

be

set

Joynes,

which

Va.

negligence

never

act

v.

a

liability

of

must

Id.

will

intervening

omitted).

Allen,

injury

negligence

the

intervening

v.

defendant's

Va.

"There

intervening

the

the

278

or

by

without

Jenkins

defendant

negligence

of

unbroken

(2008)).

161,

relieve

causes

tortfeasor's

it

cause'

Va.

act

the

H

pleads

support

Joynes,

contributing

if

claim,

occurred."

(citing

the

degree,

cause

initial

(citations

act,

"An

continuous

cause

operation

without

and

276

(1996)

negligent

omitted).

the

Le,

"In

defendant's

'proximate

have

128

negligent

alone,

v.

Compl.

clearly

allegations

"a

produces

proximate

(1993)).

supersede

law,

not

incarcerated

Second Am.

Complaint

proximate

causation.

natural

cause,

and

remained

malpractice

factual

elements pled - proximate
Under

a

direct

deemed

a

motion

by

in

278

Va.

at

63

The

on both

parties

sides

hand,

one

In

of

the

or

could

arguments

alleged

support

could

proximate

Plaintiff

significant
Boyle's

have,

on

this

this

indicates

that

on

19,

after

situation,

Circuit

2010

went

to

Court

Plaintiff

which
at

had

the

his

failure

the

other

cause

of

members
cause

this

ability
to

office

stage

to

action

Boyle

Plaintiff's
of

of

personnel

the

the

Plaintiff's

Attorney

and

comply

with

Plaintiff

be

sequence

proximate

of

of

her

events,

Clerk

the

in

he

his

is

24

without

occurred.

Second

Amended

from

the

K

was

Such a

that

to

Boyle

On

that

to

the

ultimate

negligence

Boyle,
failure

the

Boyle

that

set

incarceration.

order

Since

and

and

the

court

the

release

alleged

of

the

favorable

indicates

brief

of

23.

most

Jail

for

Court

Compl.

her

the

argues

cause.

that

Plaintiff's

to

instruction

bond.

present

Virginia,

According

the

On the

to

have

of

light

effectuate

incarceration
the

that

in

office.

follow

released

the

contributed

to

not

Hampton,

incarceration

Clerk's

failed

released

litigation,

argues

case.

brief)

would

Second Am.

viewed
of

she

arguments

supervisor... learned

of

indirectly

take

hand,

be

this

her

was

of

in motion."

must

in

Plaintiff's

Boyle's

City

in

injury

"Plaintiff

the

Plaintiff's release
statement,

her

reasonable

issue

subject

the

of

made

(although

position,

Complaint
March

cause

argue

negligence,

of

have,

he

the
of

of

sole
court

Commonwealth's
directing

was

not

cannot

that

part
be

of
the

After
pleading

considering

standard

concludes

that

at

these
this

Plaintiff

proximate

cause

of

recognizes

that,

based

Complaint,

Boyle

Plaintiff's

release.

Second Amended
of

law

duration

that

Defendant.

it

whether

cause

any

resolved at

a

of

light

malpractice

failure
claim,

to

22,

such

Court

dismissed

on

an

he

courts

and

argues
the

alleged

2009

in

the

that

the
Boyle

Court

the

facts
hold

have

negligence

the

the

date

negligence
is

as

was

an

of

was

issue

a

procured
in

the

a matter

continued

on

was

Amended

alleged

that

Court

certainly

Second

Boyle

that

injury

applicable

single-handedly

would

until

the

The

cannot

alleges

Plaintiff's

for

the

of

the

part

continually
her

the
of

eventual
proximate

fact

to

be

time.

the

State

Court's

against

also

Law Immunity

conclusion

Boyle

plead

must

that

should

the

assess

alternative

governmental

brief,

Court

continued

sufficiently

the

possesses

claim

based on

any

Plaintiff

later

of

the

have

and

litigation,

allegations

not

without

b.

In

the

could

from December

release,
of

on

However,

did

the

plausibly

incarceration

Since

negligent

of

incarceration.

Complaint,

Plaintiff's

stage

has

her

alone

possibilities,

application

of
25

-

such

from

Plaintiff's

be

whether

from

precedent

not

requisite

theory

immunity

that

dismissed

elements
the

claim

namely,
a

four

Virginia's

claim.

legal
a

such

of

for

a

should

that
In

different

be

Boyle
Boyle's

circuit

four-factor

test

regarding
Boyle

is

immunity
immune

When

from

facts

Jane,

Va.

assessing

of

the

an

state
a

law

53

claim,

control

and

and

and

direction

(4)

whether

cites

(citing

to

three

concluded

that

James,

the

circuit
public

immunity from state
For

1993),

example,

the

221

court

courts

in

the

act

court

courts

to

(2)

that,

are

often

in

James

the

extent
(3)

the

state

to

analyze

test,

(1)

the

the

In

in

that

v.

when
nature

of

the

degree

over

the

involved the use

Burden,

53).

cases

defenders

to

complained of

at

that

entitled

must

utilized

look

by

Messina v.
Va.

finding

is

function,-

exercised

judgment and discretion.

(1984)

first

employee;

involvement

a

employee

According

immunity,

of

malpractice claim.

Virginia

test

(1980) .5

employee's

favor

a government

four-part

43,

interest

employee;

of

whether

in

legal

function performed by the

state's
of

a

under

221

counsel

from Plaintiff's

assessing

immunity
the

strongly

228 Va.

Boyle's

applying

301,

313

brief,

that

he

test,

entitled

to

sovereign

Va.

45

(Richmond

law claims.

in

Oliver

held

that

v.

the

Langer,

32

Cir.

Commonwealth had a very important

5 An employee's immunity from state law claims is derivative of
the
employee's
employer's
immunity.
Therefore,
before
determining whether an employee is entitled to this derivative
immunity,
a court must first determine whether,
in fact,
the
employer is an immune body.
In the present case, the parties do
not dispute that a public defender is an employee of the state,

Oliver

v.

Langer,

32

Va.

Cir.

45,

45

(Richmond

1993),

and

that

the state is generally immune, absent waiver, from many types of
claims.
Therefore, the Court need not conduct the first level
of analysis and can proceed to a discussion of the four-factor
test

for determining an employee's
26

derivative

immunity.

interest

in providing

defendant's

significant

refuse

Moreover,

the

Court

a

The

public

services
paid

control

also
of

for

a

by

public

no

over

authority

represent

Court

a

subject

the

court

a

of

held

that

finding

of

the

Wenzler

Hartsoe,

Parker v.

Berry,

The

fourth

37

found
32
Va.

case

Cir.

cited

Circuit

Court

Augusta

found

attorneys

315.
that

of

Dixon,

have

However,
the

circuit

two

As

Cir.
511,

by

a

is

Va.

Cir.

that

a

and

who

the
in

is

are

circuit
favor

of

cited by Boyle.

See

a

(Suffolk

slightly

307

(Augusta

held

1992).

different
1995),

the

court-

malpractice

claims.

the

Supreme
this

1994);

that

appeal,

27

are

and

legal

on

the

analysis

Virginia

erred

45-46.
for

{Virginia Beach

of

to

administrative

counseled

for

court

pay

concluded

334-35

511-12

at

or

services

result,

immunity

on

not

those

cases

334,

County,

Id.

has

public

clients

Similar

Boyle

37

do

a

supervisors,

factors

other

state

representation

senior

46.

the

her."

standard

immunity.

Va.

v.

at

Jane

in

In Adkins

Id.

at

own

court

the

more

v.

stripe.

appointed

of

sovereign

can be

the

certain

because

rather,

of

Id.

James

conclusions
v.

course

state.

to

certain

supervision

the

her

given a

in

that

clients

but

Further,

the

counsel

defender

that

defender,

especially

concluded

assigned

follows

during

to

choose

fact

state.

procedures

employees

the

public

the

to

client

weighed

defender

to

counsel,

right

"has

to

with

constitutional

circumstances.

defender

indigents

Court
point.

of

Virginia

Adkins

v.

Dixon,
it

253

Va.

275,

analyzed

Virginia's
had

Indeed,

no

by

[the

the

client.

that

decisions

becomes,

to

the

by

at

was

improper

Virginia

as

before
as

decisions.

on

this

concludes

that

those

providing

indigent's

public

lawsuits

the

public

that

Mem.

that

argues,

all

Adkins

is

on

Further,

the

as

alleged

right

to

state
28

an

on

for

of

Court
at

court

Dismiss.

are

by

their

Boyle,

are

in

in

held

cases,

employed
been

6.

not

prior

binding

logic

and

immune

from

As

mentioned

interest
light

certain

significant

of

Court

those

cases

a

these

effectively

important

the

behalf

this

overrule

counsel

280.

compromise

attorneys

especially

has

at

looking

negligence.

has

services,

the

not

tactics

part

circuit

Mot.

court

such

Commonwealth

defender

When

persuaded

defenders,

the

would

"have

does

Id.

Supreme

involving

circuit

Court

defense

question

Opp'n Boyle's

those

based

the

under

Commonwealth

judgment

case.

operative

Plaintiff

constitutional

prosecutions.

result,

defenders,

the

cases,

in

"the

on

conduct

independent
a

attorney

and

control

public

finds

Court,

any

ethical

As

the

Court's opinion,

attorney].

and

Although

malpractice

in

281.

that

pleadings

Adkins,

overruled by Adkins."

Court

concluded

Court,

exercise

Supreme

court-appointed

the

requiring

to

whether,

decided

The

over

collectively,

all

a
and

Id.

immunity

In the

court-appointed

Commonwealth beyond
ability

of

test

control

according

lawyer's

(1997).

role

four-part

almost

employed

the

281

of

in
an

criminal

control

over

the

caseload

defenders,

offices,

of

the

and

the

state

salary of

While

counsel

adversarial

defenders,

administrative

19.2-163.01.

appointed

public

it

in

reasonably

control

representation

part

public

defender

analysis,

the

a

immunity
above.
the

Adkins

present

controls

Indeed,

case

above

this

Court

the

it

almost

no

the

beyond

doctor

Consequently,

to

extent

a

client,
not

a

Adkins,
the

immunized
that

it

from
is

253 Va.

"In

claim.

of

a

with

on

respect

control

an
the

public

discretion

the
to

discussed

attorney,
-

contrast

medical

id.,

the

Plaintiff's
on

"In Virginia,
29

and

that

whereas

subject

to

counsel.

to

Lohr,

in

procedures

the

Commonwealth

had

defense

Boyle,

legal

simple

that does not necessarily immunize Boyle
malpractice

has

tactics

at 280.

holds

based

court-

thus

court-appointed

pleadings

Court

and

employee

the

perform,

the

the

§

distinction noted by the Adkins

controlled

over

state

Ann.

defender

overcome,

of

follows:

could

Code

course

such

state

those

as

public

court-appointed

with

observed

control

is

the

defenders'

with

was

entire

public

Va.

Commonwealth

the

the same kind of

employed by Dixon."

defender,

the

does

with

Commonwealth

state-employed

the

of

public

See

it

significant

deals

and

is

when

which

dealt

of

as

that

with

defender's
of

true,

Adkins,

of

employees.

relationship

cannot

training

organization

such

is

the

as

a

malpractice

negligence.

agent

claim

However,

from Plaintiff's

a government

public

entire

entitled

to

the protection of
Rather,

the

liability
v.

degree

is

Boyden,

of

negligence

elevated

241

malpractice

be

sovereign immunity is not

Va.

from

125,

immunized

malpractice claim only
H 36.

Complaint
28,

those

that

speaks

gross

paragraphs

Court

gross

(1991).

from

of

be

shown

impose

negligence."

Therefore,

if

negligence,

claim.

to

Colby

Plaintiff's

Boyle

would not

However,

Plaintiff's

simple negligence.

Second Am.

Although other parts of Plaintiff's Second Amended

speak of

malpractice
the

to

claim had alleged gross

completely

Compl.

which must

simple

128

immunized from suit.

claim.
finds

malpractice

negligence,

have

See
that

claim

not

and

been

Second Am.

Boyle

is

e.g.

incorporated

Compl.

immune

therefore

Second Am.

11

33.

from

DISMISSES

As

Compl.
into

a

III

the

result,

Plaintiff's
Count

H

legal
of

the

Complaint,

she

Second Amended Complaint.
4.

In

states

Count

that

each

misconduct

of

as

to

Since
Boyle

actual

evince

the

a

Compl.

above,

there

has

are

acts

or
or

conscious
1

40.

no

Amended

omissions
such

"constitute(s)

recklessness

disregard

of

or

Plaintiff's

Defendant Boyle contends

regarding

support

Court

Second

malice,

allegations

malpractice do not

Punitive Damages

Plaintiff's

Second Am.

Plaintiff's

-

Defendant's

with

negligence
rights."

IV

Count V

Boyle's

alleged

Plaintiff's

claims

that

legal

such damages.

dismissed
remaining
30

claims

against

against

Boyle

upon

which Plaintiff
Court

GRANTS

could

seek punitive damages.

Boyle's

motion

to

dismiss

As

Count

V

a result,
of

the

Plaintiff's

Second Amended Complaint.
B.
1.

Like

Amended
under

Count

Plaintiff's

Complaint

42

Smith's Motion to Dismiss

U.S.C.

Plaintiff
relief

can

Amendment
injury

has

Plaintiff's
has
of

she

failed
Smith,

is

court.

not

to

allege
even

immune

from

§

Court

dismissal of

to

will

to

action

to

why

these
she

of

claims

claims

for

her

Smith's

analyzing

Second,

that

contention

Fourth

as

the

as

the

part

argues

that

a

clerk

regarding

asserted

to

Plaintiff

on

Smith

actions

Smith's

the

which

because

conduct

occurred,

that

upon

that

contends

actionable

Fourth and

believes

incarceration.

Smith

Smith

allegations,

action

argues

Second

against

Plaintiff's

cause

conduct

address

to

Plaintiff's

Plaintiff's

claims,

1983

of

Smith

lawful

such

prior

grounds

of
the
for

the due process claims against her.
a.

Plaintiff

basis

a

sufficient

if

of

response

First,

a

1983

Boyle,

as

state

process

and

The

In

applicable

§

causes

reasons

to

after

Fourth Amendment

legal

rights.

granted.

due

against

for violations

failed

occurred

U.S.C.

asserts

several

be
is

claims

42

1983

§

stresses

-

also

Fourteenth Amendment
Smith

I

to

Fourth Amendment Applicability

concedes

arrest

that

and

the

City

incarcerate
31

of

her

Hampton

on

the

had

a

proper

threatening

to

burn

charge

indictment

prior

against

Plaintiff's

continued

below,

to

Commonwealth's

her.

Fourth

Second

Amendment

detention

these

the

after

facts

do

Am.

not

Compl.

claim

December

support

decision

is

22,

1

to

17.

solely

2009.

a valid

seek

1983

an

Therefore,

based

Id.

§

not

As

on

her

explained

claim based

on

an alleged Fourth Amendment violation.

"'Fourth
complaint

of

the

Amendment

contests

person.'"

(5th

Cir.

2000)

157,

166

protections
plaintiff
Brooks,
F.3d

Luckes

Cir.

offered

F.3d

936,

was

named

is

extended

detention

properly

analyzed

the

thus

569

(7th

792,

797

(7th

of

a

Fourth

Accord

valid

merit.

violated

out

of

the

confinement

1998)
1992))

case

between

v.

of

Armstrong

arrest

32

the

v.

Id.

the

(citing

omitted)

("Because

Fourth Amendment

claim
rights

Due

that
is

Process

Abrams,

Fourth

a

if

Hennepin,

v.

amendment
without

F.3d
"The

apply

Squadrito,

Villanova

880

of

constitutional

that

84

Cnty.

Luckes's

("Armstrong's

because

875,

not

warrant...his

(quoting

F.3d

original).

do

the

seizure

Miss.,

Cnty.,

(citations

framework

when

and

incarceration."

Rather,

his

203

in

Luckes

bench

[only]

arrest

Jackson,
George

continued

the

the

Amendment

2005)

under

Cir.

v.

Cir.

without

Cir.

of

of

(brackets

Fourteenth Amendment.");

564,

drops

only

appropriate

basis

Brooks

the

(8th

in

or

City

166) .

939

are

1996))

by

at

argument

of

v.

(quoting

challenges

84

method

Jones

(5th

415

the

claims

warrant

more

Clause

152

F.3d

972

F.2d

Amendment

"governs

his

the

claim
period

and

the

preliminary

is

made,

after

on

while

the

Dorton,

hearing

due

initial

115

other

at

F.3d

process

a

determination

regulates

determination
1159,

grounds,

(internal

which

1163

(4th

Wilkins

citations

of

v.

Cir.

("By

Amendment

thus

applies

to

accused,'

not

to

conditions

decision
that

has

her

been

initial

Constitution,

but

unconstitutional,
claim.

still

arrest

the

of

Since
or

Fourth

the

§

Ct.

terms,

decision

Plaintiff

that

her

is

claim.

claim,

detain

not

afoul

an

that

contend
of

the

continued detention was
inapplicable

DISMISSES

1983

Fourth

after

does
ran

(2010)

the

to

v.

abrogated

1175

confinement

Amendment

left with a due process

S.

Riley

bane),

own

cause

confinement

cause.'");

incarceration

Court

Plaintiff's

of

of

(en

130

'initial

rather argues

Therefore,

component

the

made.").

1997)

its

probable

period

probable

Gaddy,

omitted)

the

the

of

the

Fourth

However,

the merits

to

her

Amendment

Plaintiff

which will

of

is

be

discussed below.
b.

Smith
be

held

asserts
liable

constitutional

First,
were

Smith

violated,

committed
can be

two
for

that

those violations

if
has
or

Claims

defenses

alleged

protected

Plaintiff

imputed to

Process

principal
any

rights

argues

Due

by

as

that

the

Due

alleged

of

she

that

Process

Smith

any violations
the

Clause.

rights

personally

that

fact

cannot

Plaintiff's

constitutional

Smith purely by virtue of
33

why

violations

Plaintiff's
not

to

did occur

that

she

is

the

supervisor

even

if

failed

of

certain
to

the

clerk's

conduct

allege

that

i.
Although

loss

of

Second

for

Clause,

that

predicament

and

release.

Rather,

the

"office

herself.

is

of

that

doctrine

is

respondeat
Love-Lane
Monell

v.

("...there

to

the

Clerk

Supp.

of
§

Smith's
is

Mot.

respondeat

in

her

has

no

Martin,

355

F.3d

Dep't
is

facts

supporting

to

the

of

Plaintiff's

Plaintiff's

the

Second

regarding

Dismiss

Plaintiff's

secure

to

not

Due

"the

4.

which

conduct

Clerk

As

hold

the

a

Smith

Amended

of

of

Court"

result,

Smith

liable

under

according

to

Smith,

cases.

correct

that

knowledge

and

serious

Constitution's

that

superior,

to

unjustified

sufficiently

allege

attempting

1983

a

obligated

Court"

gravity

has

Clause.

nonetheless,

to

that

Plaintiff

sufficient

the

allegations

superior
v.

is

contends

of

her,

argues

Plaintiff's

personal

Smith

Smith

Conduct

that

fails

makes

of

implicate

had

to

Process

days

therefore

Plaintiff

improper in

Smith

was

is

Personal

contends,

Smith

best,

Mem.

contends
the

at

as

Complaint

conclusion

Complaint,

the Due

concedes

so

Second,

imputed

conduct

Smith's

she

Amended

be

eighty-seven

liberty

Process

of

Smith

imprisonment

could

such

trigger the protections

office.

no

of

Soc.

respondeat

assertion

that

applicability
766,

Servs.,

782

(4th

436

doctrine

of

§

1983

claims.

Cir.

2004)

{citing

691

(1978))

U.S.

superior
34

to

the

liability

658,

under

§

1983.").

Given that

limitation,

supervisors

individual

capacities

only

supervisory
v.

Md.

282

Dep't

(4th

Shaw v.
two

actions
of

Cir.

Pub.

assess

13

whether

for

the

shown

the

791,

per

799

liability

Servs.,

(4th
in

Cir.

mind,

Amended

charged

(quoting

1971)).
"must

To
have

alleged

Wright v.

Although

Smith

are

Court

cannot

Second

such

scant

state

Amended

of

personally

at

this

of

v.

F.2d

and

alleged

850

in

Amended

when

the
the

in

550

Gravelle,

323

1011
the

(4th

in

order

on

part

Complaint,

the

favorable

her

The

35

of

the

in

that

detention.

be

1985).

the

most

the

to

failed to plausibly allege
continued

Cir.

individual

allegations
light

the

Gibbs,

(4th Cir.

wrongdoing

in

affirmatively

involvement

rights

Second

viewed

is

wrongdoing,

personal

point,

are

in

451

766 F.2d 841,

of

she has

involved

Bennett

appellant's

Plaintiff's

Complaint

that

personal

Collins,

in

first

has

Vinnedge v.

aff'd

knowledge

allegations

to Plaintiff,
was

1971),

personal

deprivation

liable."

1977)

Md.

establish
had

will

Court

personally

Cir.

(D.

(citing
these

acted

official

214

279,

With

it

lie

(4th

203,

opinion)

where

only

F.2d

Supp.

the

Clark

App'x.

1994)).

or

of Smith.

rights.'"

F.

F.

"personal wrongdoing"

the plaintiffs'

928

norms."

Complaint

deprivation of
926,

wrongdoing

316

curiam

"in their

will

"%liability

that

Corr.

Second

liability based on the

Such

&

personal

constitutional

(unpublished

F.3d

bases

their

violated

Safety

2009)

Stroud,

possible

that

for

can be held liable

Smith
Second

Amended

Complaint

states

that

the

Assistant

Attorney sent a letter on December 22,

thereof
Court

to the attention of

for

Second

the

Am.

Complaint
»cc:

Circuit

Compl.

is

a

Smith at

Court

1

copy

of

Ex.

clearer,

A.

this

Second

the

to Boyle and a

the office of
City

Attached
letter,

of

Hampton,

to

the

which

while

Amended

the

allegation

Complaint

Lastly,

also alleges

informing

as

them
of

charge.

Yet,
the

mentioned

above,

the

Plaintiff

any

bond

would

not

applicable

despite

the

Second Amended

Although

Plaintiff

had

knowledge

of

she

need

meet

plausibly
unlawful

Such a
motion

alleged

be

bottom,

Second Am.
have

been

Smith

that

also

Amended

to

indicted
the

allegations

Complaint

showing of

has

not

Plaintiff's
that

that

incarceration

to

the

Second Am. Compl.

Second

H

Complaint

burden

Smith
on

dismiss.

at

this

personally

several

personal

of

repeated
that

Similarly,
36

is

to

be

burn

notices

Smith

shown

unlawful

to

failed

that

Smith

incarceration,

point.

Plaintiff

has

received

notice

the

occasions

knowledge

should

release.

conclusively

continued

and

threatening

indicates

to take action to effectuate Plaintiff's

not

Amended

that Smith and/or Winston received a judicial order

released

Smith,

at

could

asserts

received another letter to the same effect.
13.

Virginia."

Second

reads

"copy

the Clerk of

Clerk of Circuit Court."

Moreover,

the

of

11.

Linda Batchelor Smith,

Compl.

2009

Commonwealth's

and

failed

sufficient

Plaintiff

to

has

of
to

act.

survive
also

a

not

conclusively shown that even if Smith did have knowledge of the
incarceration,

release

that

Plaintiff

incarceration.
implies

she

or

was

that

However,

in

a

her

the

position

actions

led

single-handedly

to

Commonwealth's

letter,

I

am

notifying

the

the

B[b]y copy of

Office

so

client may be released of any bond in effect that
the above

Compl.

referenced

Ex.

A.

[threatening to burn]

Therefore,

despite

the

that

your

is related to

charge."

fact

letter

in the process

It states,

Clerk's

continued

Attorney's

that the clerk's office does play a part

of effectuating a prisoner's release.
this

to

that

Second Am.

liability

Smith cannot rest on a theory of respondent superior,

for

Plaintiff

has alleged sufficient personal involvement on the part of Smith
to survive a motion to dismiss under Rule 12(b)(6).
ii.

Regardless

in

Plaintiff's

1983

claim

sounds
basis

incarceration,

Smith

negligence,
a

argument,

whether or not Smith had personal

against

in
of

of

§

Level of Culpability

1983

Smith

must

and

be

contends

dismissed

negligent

action.

In

that

Plaintiff's

because

conduct

order

involvement

to

cannot
fully

the

claim

form

assess

§

the
this

the Court must briefly review the relevant standard by

which to assess Plaintiff's due process claim.

The

Supreme

touchstone
against

of

Court has

due

arbitrary

process

action

of

"emphasized

is

time

protection

government.'"
37

and again

of
Cnty.

the
of

that

'the

individual
Sacramento

v.
418

Lewis,

523

U.S.

U.S.

539,

833,

558

845

(1974)).

dealing with action of

executive official,

a

constitutional

Harker

Heights,

U.S

level

determining

is

stick."

conduct

elusive,
Id^ at

the

since

on

(4th

Patten

2001)).

'categorically
process'"

and

Waybright

v.

Servs.,

528

Sacramento,
spectrum,

846.

cases

often an

"only the

'arbitrary in

(quoting

Collins

v.

Repeatedly,

that underlies

"shocks

of

the

said to be

(1992)).

conduct
that

stated that

the

a cognizable

the conscience."

conduct

that

is

"no

of

each

rises

Id.

to

that

calibrated

measure

fault may rise to the

v.

(quoting Young v.

Cir.

at

process

official,

circumstances

the

'different degrees of

2001)

can be

McDonnell,

yard

84 7.

"Depending

shocking.'"

Court has

129

type

due

government

Id^

115,

spoken of

due process claim as
However,

conduct

(quoting Wolff v.

substantive

specific

sense.'"

503

Supreme Court has

In

the Supreme

most egregious official
the

(1998)

Nichols,

"As

to
the

therefore

Frederick

F.3d
523

conduct

by any government

199,
U.S.

205
at

(4th

849).

Dep't

Cir.
On

is most
38

2008)
the

"'intended to injure
interest'"

of

considered
Md.,

238

however,

conscience-

834

(4th

F.3d

inflicted

threshold

Cnty.,

829,

Ranier,

'negligently

never

level of

F.3d

City of Mount

beneath
is

274

case,

Cir.

567,

harm,'

it

constitutional

574

is
due

conscious-shocking.
of

Fire

(quoting

opposite

&

Rescue

Cnty.

side

of

of
the

in some way unjustifiable

likely to implicate the Due

Process
849).

of

Clause.

Id^

With respect

culpability,

(quoting Cnty.
to

conduct

such conduct

in special circumstances.

U.S.

at

849) .

Circuit

has

In

one

held

may have

due

{citing

such

relationship to a private

Sacramento,

523

U.S.

falling within the middle

Id^

that

of

Cnty.

special

"where

process
of

at

range

implications

Sacramento,

523

circumstance,

individual,

Fourth

state

the

the

a

special

it

is

in

acquires a duty to act

on that individual's behalf and its failures to act are measured

on a deliberate

indifference

standard."

the term "special relationship"

Id^ at

Winnebago Cnty.

(1989)).

Id.

pretrial

traditionally

the

an

327,

has

level

correct

has

(citing DeShaney

489 U.S.

189,

199-200

and

examined

committed

for

mental

deliberate

patients

indifference."

Such a standard is applicable here.

Plaintiff

of

detainees,
been

In the present

to

"all but

"[T]hat is why a conscious disregard of the rights of

prisoners,
have

Dep't of Social Servs.,

Id^

Although

it is

is a term of art,

synonymous with a custodial relationship."
v.

207.

case,

alleged
of

a

it

that

is

a close

Smith's

constitutional

actions,

violation.

in her assertion that negligence

actionable

328

(1986).

alleged

favorable

to

§

1983

claim.

However,

sufficient

Plaintiff,

Daniels

the

Court

facts,

when

that

Smith
39

question as

or

v.

was

is

form

in

more

that
the

than

rise

entirely

the basis

Williams,

concludes

viewed

inactions,

Smith

cannot

to whether

474

U.S.

Plaintiff
light

most

negligent.

Plaintiff

alleges

indifference

Compl.

11 28.

Smith was

least

to

behaved

constitution

with

deliberate

rights.

Second

Am.

Plaintiff's Second Amended Complaint states that

three

Plaintiff's

occasions

Compl.

basis

prior

11 11,

Amended Complaint,

legal

Smith

Plaintiff's

informed of

Second Am.

no

that

13,

hold

procure her release.
certainly possible

higher level

Plaintiff's

15.

Yet,

Plaintiff,

Second Am.

eventual

release.

according to the Second

Smith

Compl.

took

1

has

culpability.

no

28.

that Smith's actions amount

Plaintiff

of

to

incarceration on at

despite multiple notifications that there was

to

than negligence,

unlawful

While

a result,

it

is

claim of

Plaintiff's

claim need not be dismissed on the ground that

§

a

1983

Plaintiff

failed to state a cause of action under § 1983.
conclusion, however,

to

to nothing more

stated a plausible
As

action

has

Despite this

Smith also contends that Plaintiff's § 1983

claim fails because Smith is immune from such a lawsuit.
iii.

Smith

contends

"Quasi-Judicial"

that

she

is

Immunity

entitled

to

"quasi-judicial-

immunity -

immunity for non-judges engaged in certain judicial

activities.

In analyzing the issue of "quasi-judicial" immunity

for a clerk of court,
case

of

McCrav

v.

the Court begins with the Fourth Circuit
Maryland,

overruled on other grounds,
Cir.

1995).

In

McCray,

456

F.2d

Pink v. Lester,
the

Fourth
40

1

(4th

Cir.

52 F.3d 73,

Circuit

analyzed

1972),

77

(4th

"quasi-

judicial"

immunity with respect

City Court.

In doing

so,

to

the

enjoyed

immunity

by

duties.

judges

is
in

According to the court,

derivative
the

the Baltimore

court discussed the origin and

applications of the doctrine.
judicial"

the clerk of

of
of

exercise

the
many

"quasi-

absolute

immunity

of

judicial

their

This absolute immunity is founded on the understanding

"that judicial officers in whom discretion is entrusted must be
able to exercise discretion vigorously and effectively,
apprehension

that

they

will

be

vexatious litigation."

McCray,

Ray>

386 U.S.

(1967)).

335,

347

subjected

(1872)

importance

judicial
shall

547,

to

554

("For
the

officer,

be

free

456 F.2d at 3

burdensome

See Bradley v.

in

administration

exercising
act

upon

the
his

Fisher,

of

80 U.S.

the highest

justice

authority
own

and

(citing Pierson v.

it is a general principle of

proper

to

to

without

vested

that

in

convictions,

a

him,

without

apprehension of personal consequences to himself.").
As

certain

to

the

reason

situations,

for extending

to

"lesser

Circuit noted two related,
first

rationale,

*quasi-judicial'

the

parole board members

a discretion

similar

to

immunity,

personnel,"

the

but distinct

rationales.

As

stated

such

derives,

with the judicial process,

absolute

judicial

court

officers

this

not

as

that

from

but from the

that

their

fact

to

the
of

attorneys

formal

that

exercised by judges."
41

Fourth

immunity

»[t]he

prosecuting

in

and

association

they exercise
McCray,

456

F.2d at 3.

429,
n.20

436

Accord Antoine v. Byers & Anderson,

(1993)

(1976)

other

(quoting Tmbler v.

("When judicial

than

judges,

it

they, too,

424 U.S. 409,

423

because

their

judgments

are

to those of judges - that is, because

'exercise a discretionary judgment' as part of their

function.").

official

508 U.S.

immunity is extended to officials
is

'functionally comparable'

Pachtman,

Inc.,

Conversely,

is

not

the

called

judicial discretion,

court

upon

to

stated

exercise

that

«[w]here

judicial

or

an

quasi-

courts have properly refused to extend to

him the protection of absolute judicial immunity,

regardless of

any apparent relationship of his role to the judicial system."
McCray,

456

As

F.2d at

to

the

3-4.

second

rationale,

closely associated defense
act

in

obedience

direction."
Virginia,

Id.

No.

like

judicial

at

a

5

9,

2006)

2006

assess

for

Johnston,

immunity

indicate

when

either

Plaintiff's

that

noted

or

under

that

Dist.

the

Ma]

LEXIS

96149,

456 F.2d at 5)

are
they

'accorded
act

in

immunity in mind,

due

process

Plaintiff's
42

rights

court's

See Vanderwall v.
*32

("Court

derivative
to

With those

the Court must

violation

were

at

obedience

court's direction.'").

"quasi-judicial"

whether

U.S.

(quoting McCray,

judicial order or under the
two bases

order

(citations omitted).

defendant

absolute

court

is afforded all public officers who

judicial

l:05cvl341,

(E.D. Va. Aug.
clerks,

to

the

allegations

violated

while

Smith

was

performing

a

discretionary

acting pursuant to court direction,
"quasi-judicial"

that

most

favorable

Smith's

Smith's

discretion

As

Complaint
that
no

Plaintiff's

Compl.

in

Hf

which
the

an

of
to

assuming,

action

was

in

it

was

a

case,

the

Court

time

based

on

and

the

also
with

notice

was

with

a

released

to

Smith

was

of

facts

might

the

reach

allegations

attachments

the

thereto.

e.g.,

Complaint

a

took

does

custody

that

Smith's

to

to

is

at

in

the

Amended
Smith

or

while
to

proper

conclusion

Second

Court

-

take

Smith

Therefore,
this

in

release

duty

afforded

Consequently,

43

she

Second Am.

state

under

immunity

in

but

Plaintiff's

lead

a

occasions

the machinations by

order.

such

Amended

indicia

discretion

judicial

court's

legal,

from

no

respect

"quasi-judicial"
cannot

to

within

state

several

Amended

as

conclude

Second

See,

Second

in the

choice

the

on

longer

provides

that

product

subsequently-developed

that

is

a

Plaintiff's

warnings.

the

prisoner

point,

accordance

conclusion

those

action

this

-

above,

Court with any insight

take

such

to

While

Hampton,

at

pursuant

cannot

was

received

to

28.

unindicted

City

failure

the

inaction

incarceration was no

response

are viewed

Court

taken

was

Smith

the

of

discussed

11-15,

not provide

Smith

such that she is entitled to

Plaintiff,

course

or

asserts

action

while

when the allegations

to

alleged

direction.

or

immunity.

In the present case,

light

duty,

the

this

present

Complaint
is

not

entitled

to

presently

Smith's

"quasi-judicial"

before

the

motion

to

immunity

Court.

As

dismiss

a

Count

based

result,

I

of

upon
the

the

the

Court

facts
DENIES

Second

Amended

Complaint.

2.

Plaintiff

Smith.

Count

also

However,

II

alleges

much

this

False

a

like

Second Amended Complaint

make

-

Imprisonment

false

the

fails

imprisonment

allegation

to

set

against

forth

cognizable.

According

to

Virginia,

false

imprisonment

is

direct

person of

the physical

justification.'"

149

Va.

alleges

at

she

liberty without
%

31,

the

much

like

notion

Plaintiff.
to

secure

the
nor

Jordan

921).6

that

endured

adequate
Boyle,

that

Plaintiff's

any

Va.

"a

the

of

at

497

direct

factual

release,

allegation

to

Court

of

restraint

(quoting

Second

by

or

it

of

not

is

Plaintiff
that

Smith

clear

Smith

in

physical

Second Am.

directly
had

that
the

to

Compl.
support

restraining
the

Smith
first

directed

Co.

Complaint

her

fail

one

legal

Grant

Amended

allegations

one

W.T.

the

facts

Supreme

restraint

the

whether

restraining

the

justification,"

was

Boyle,

another without adequate

Plaintiff's

legal

Smith

Regardless

there

255

While

party directly
is

liberty of

against

sufficient

claim

"'the

claim

ability
was

not

instance;

Plaintiff

be

6 As noted earlier,
imprisonment claim
direct restraint.

it is possible to have a cognizable false
against
someone who does
not perform the
However,
at the very least,
an individual

must

participant"

be

an

"active

liability to be possible.

See,

in

e.g.,
44

the

restraint

Sands,

126 Va.

in
at

order
396.

for

held past her legal date of incarceration.
GRANTS

Defendant

Smith's

motion

to

Therefore, the Court

dismiss

Plaintiff's

false

imprisonment claim.

3.

Count IV - Negligence
a.

In

Count

IV

of

Plaintiff's

alleges

that Smith is

of

duties.

her

Elements

liable

According

Second Amended

for negligence

to

Plaintiff,

Complaint,

she

in the performance

Smith

had

a

duty

to

inform the Hampton Roads Regional Jail that the Commonwealth was

not seeking an indictment against Plaintiff;
duty;

and,

such

breach

led

seven day imprisonment.
Smith's
argues

memoranda
that

statutory

in

to

Plaintiff

Plaintiff's

Second Am.
support

of

has

failed

imposing

authority

a

effectuating Plaintiff's

Under Virginia law,

Smith breached that

Compl.

her
to

duty

additional

1 38.

motion

eighty-

However,

to

dismiss,

specifically

cite

on

take

Smith

to

to

in
she
any

action

release.

to establish actionable negligence,

the

plaintiff has "the burden to show the existence of a legal duty,

a

breach

damage."
(2003)

of

the

duty,

Atrium Unit
(citations

and
Owners

omitted).

proximate
Ass'n v.
While

causation

resulting

King,

Va.

Smith

266
is

in

288,

correct

293

in

her

argument that Plaintiff has not cited to any statutory authority

indicating

that

Smith

Plaintiff's filings,

owed

a

"legal

duty"

to

Plaintiff,

at the very least, make a plausible showing
45

that

such a

than

the

duty

exhibits

Complaint.

The

copy

of

to

need

not

look

Plaintiff's

any

further

Second

Amended

which is the letter from the Assistant

Attorney

"[b]y

Court

attached

In Exhibit A,

Commonwealth's

writes,

exists.

discussed

this

earlier,

letter,

I

am

Charisse

notifying

Mullen

the

Clerk's

Office so that your client may be released of any bond in effect
that

is

Compl.

related

Ex.

A.

certainly
take

if

above

the

respect

she

has

release.

Plaintiff's
Criminal

that

with

presumably,

the

to

This

additional

Order

clerk's

B.

This

circulated

to

Plaintiff's

same

that

"Clerk:

threatening

order

was

mlw."

to

the

Correctional

not

with

conclusive

involved

in

respect

Am.

proof

the

that

process

can

and

B

is

on

that

same

Sheriff,

46

that

no

While

and/or

which

of

4,

the
bond

2010

28

& Ex.

exhibits

are

should

and

Winston

Officer,

these

from

Second Am.

indictment

Winston

Plaintiff

H

to

her

of

any

day,

Jail

Smith

copy

released

January

her,

drawn

a

it

therefore,

be

Compl.

Plaintiff.

by

obligation

to burn charge.

On

indicating

to

an

Second Am.

applicable

Officer,

be

issued
Id.

prepared a disposition notice,

presented

Second

pending against

Exhibit

Plaintiff

has
bond,

inference

exhibits.

ordering

Ex.

directed

charge."

office

no other charges

currently pending on the

Compl.

referenced

While the letter does not state it explicitly,

implies

action

ultimate

to

C,
or
was

are

integrally

have

been

released

from

jail,

they

are

sufficiently

indicative

of

a

duty

on the part of Smith to withstand a motion to dismiss.
b.

Regardless

of

State Law Immunity

whether

or

not

Plaintiff

stated a claim of negligence

against

she

immunity

is

entitled

actions,

or

to

sovereign

inactions,

were

Smith,
in

has

sufficiently

Smith contends

this

case

discretionary.

that

because

her

Court

has

The

already engaged in a related discussion with respect

to Smith's

immunity

since

from

Plaintiff's

§

1983

claim.

However,

sovereign immunity argument is governed by Virginia law,

1983 immunity is governed by federal law,
several

First

the

sovereign
case,

Virginia

Supreme

immunity

the

office of
75.

with

respect

court

however,

one of the deputies.

the Court must revisit

to

that

v.

Baker,

dealt

clerks
one

of

with

of
the

225

the

court.
deputies

72

issue

of

In
in

the clerk filed a plea

(internal quotations omitted).

negligence underlying the

the

Id^ at

which the trial court concluded was

sovereign

that

sued the clerk of court rather than

immunity,

it

[plaintiff's]
47

stated as

"well

However,

Supreme Court of Virginia disagreed with such a finding.

opinion denying

Va.

incorrectly filed a lien.

At the trial level,

of sovereign immunity,

at 76

of Virginia

alleged

the clerk of

Id.

Bank-Colonial

Court

plaintiff

The plaintiff,

taken."

while §

common issues here.

In

(1983),

the

the

In its

follows:

"the

claim was misfeasance of

a ministerial

cover

such

case,

to

duty,

torts."7
assess

Plaintiff's
determine

and

232

sovereign

disputed

law

that

tort

against

Heider v.
driving

a

situations

defense
and

of

car

must

the

duty of

governmental

which

function

(citations

of

in

the

sovereign

Smith,
that

present

immunity

the

Court

Smith

all

times

327

14 3,

immunity

here

might

to

must

breached

a

145

is

a

229,
not

common

maintained
duties.");

only

to

Wynn v.

(u[P]ublic

("It

pertinent

("While every person
in

ordinary

a ministerial

necessary

F.2d

been

(1991)

applies

itself.");

(1986)

have

decisions,
is

748

ministerial

performing

due care

omitted)

Williams,

U.S.

myriad

are

v.

474

at

Va.

make

immunity does not

result,

alleged

negligence

241

a

against

Daniels

aff'd,

employee

sovereign

As

has

See

for

demons,

sovereign

Smith is not entitled to the defense

Virginia

state

discretion

(1938)

If so,

action
a

78.

Plaintiff

1984),
in

at

claim

immunity.

Cir.

cloak of

applicability

negligence

whether

(4th

Id.

the

ministerial duty.8
of

the

the

to

obligation.

acts

of

performance

Gandy,

officers

driving

170

judgment
of

the

590,

595

liable

for

Va.

are

The

7 Although the Supreme Court of Virginia noted in Baker that
recordation of liens was a statutory duty imposed upon a clerk,
there is no reason to conclude, as Smith implies in her brief,
that
any
duty
not
found
in
statute
is
automatically
a
discretionary duty.

8 The Court must make this determination based on the facts
presently before it on the record.
Of course, while Plaintiff's
allegations are assumed true for these purposes,
subsequently
developed facts may call the allegations
48

into question.

injury

which

is

the

result

performance

of

in

their

which

do

not

duties

discretion

of

their

performance

negligence
involve

but

in

the

judgment

which

are

or

purely

ministerial.") .

The
not

allegations

indicate that

in

Plaintiff's

Second Amended

discretionary.

Winston are

to

the

alleged

defendant

currently under

the

clerk's

jail

of

Plaintiff's

this

a

point

before

the

that

failed

in

such,

Compl.

in

Court,

is

not

entitled

allegations

in

the

Second

conclusion

may

facts.

a

Count

As
IV

of

negligence

change

result,

in

the

Plaintiff's

against

bond

charge]."
office

1

18.

was

Court
Second

a

of

DENIES
Amended

Smith.

49

defendant

to

is

Compl.
notify

classifies

Second Am.
and

this

Compl.

based

on

H

the

sufficiently alleged

ministerial

duty.

immunity based

Complaint.

face

"orders

which would effectuate

has

sovereign

Amended
the

of

2010

supposed

Plaintiff

Plaintiff

to

the

Smith and/or

Second Am.

proceedings,

execution

Smith

any

function."

the

her

order that

in status,

"ministerial

allegations
Smith

change

Second Am.

as

from

relevant

the

At

released

[the

Presumably,

requirement

The

received on January 4,

for

B.

38.

have

be

Ex.

her release.

do

the clerk's role in the process of releasing a

prisoner of bond is

that

Complaint

However,

on

As

the

such

a

subsequently-developed

Smith's

motion

Complaint,

to

dismiss

which

alleges

C.

Winston's Motion to Dismiss

1.

Procedural Considerations

Plaintiff's Second Amended Complaint asserts claims against
Winston

that

are

identical

to

those

against

Smith.

before addressing the substance of those claims,

first deal with their procedural propriety.
Plaintiff's

original

Smith and Boyle.
reasons,

Complaint

only

However,

the Court must

As noted earlier,

asserted

claims

against

Finding this Complaint inadequate for several

Plaintiff sought leave to amend.

Docket No.

20.

In

her motion seeking leave to file an amended complaint, Plaintiff
claimed such an amendment was needed because

«[c]ertain basic

facts were inadvertently omitted from the Complaint,

which need

to be added," and »[i]n addition Plaintiff needs to add a Fourth
Amendment violation and discard the Eighth Amendment violation

in order to reflect her
case."

liberties

that

Mot. Leave to Amend 2; Docket No.

were violated
20.

Plaintiff made no

mention of adding an additional defendant to the case.
10,

2011,

again,

the

with

defendant.

Court

no
Yet,

granted

mention
in

of

Plaintiff's

Plaintiff

Plaintiff's

added Winston as a defendant.

in this

requested

adding

Second Amended

Winston argues

an

On June

leave,

once

additional

Complaint,

she

that the claims

against her should be dismissed as a result of her "having been

impermissibly joined."

Winston Mem. Supp. Mot. Dismiss 6.

50

Rule

15

of

the

Federal

Rules

of

Civil

Procedure

Plaintiff's ability to amend the Complaint.

Rule,

if

sufficient

governs

According to that

time has passed after the

filing of

a

pleading so as to eliminate a party's ability to amend as a

matter of course, -a party may amend its pleading only with the
opposing party's written consent or the court's leave."

Civ. P.

15 (a) (2).

Complaint

to

Fed. R.

Plaintiff did not seek leave to amend her

add

Winston

as

a

party.

Consequently,

since

•[filling an amendment to a complaint without seeking leave of
court or written consent of the parties is a nullity/' the Court

would be well within its discretion to withhold consideration of
Plaintiff's claims against Winston.
F.2d 236,

239 (7th dr. 1985)

Friedman v.

Skokie,

(citations omitted).

763

However,

"a

court may deem an amended pleading submitted without permission

to be properly filed, but may only do so if it determines that
leave to amend,
T.vddv v.

had it been sought,

Bridgeport

Bd.

of

Educ. ,

would have been granted."
No.

3:06cvl420,

2008

U.S.

Dist. LEXIS 45035, at *7 (D. Conn. June 10, 2008).

in making the determination as to whether leave to amend
would have

15 (a)
724,

have

been

granted,

and 20(a)(2)
730

(4th Cir.

concluded

the

together.
2010)

that

must

consider

both

See Galustian v. Peter,

(citations omitted)

Rule

seeking to add parties,

Court

15 (a)

does

most courts,
51

not

Rules

591 F.3d

("While some courts

apply

to

amendments

including this one,

have

concluded otherwise."); Adkins v. Labor Ready,

460, 462 (S.D. W.Va 2001)

Inc., 205 F.R.D.

("In order to amend a complaint to add

additional parties after a responsive pleading has been filed, a

movant must seek leave of the court pursuant to Rule 15 of the
Federal

Rules

of

Civil

Procedure,

and

he

compliance with either Rule 19 or Rule 20

demonstrate

") .

With respect to the Rule 15 analysis,

counsels that

must

the Fourth Circuit

"leave to amend should be denied only when the

amendment would be prejudicial to the opposing party,
been bad faith on the part of

the moving party,

would

Capital

be

futile."

BearincrPoint,

Rule 20,
"any

Inc.,

Matrix

576 F.3d 172,

193

Mgmt.

there has

or amendment

Fund,

(4th Cir.

L^P,

2009).

y^

As to

persons may be joined in one action as defendants if

right

severally,

to

relief

is

asserted

against

them

jointly,

or in the alternative with respect to or arising out

of the same transaction,

occurrence,

or series of transactions

or occurrences; and. . .any question of law or fact common to all
defendants will arise in the action."
in

the

present

case,

justification for Plaintiff's
a

party,

the

although

failure

Winston

as

sought,

it would have been granted.

Court

finds

given the fact that the case is

the

Court

concludes

that

Fed. R. Civ. P. 20(a)(2).
Court

to request
that

had

sees

leave

to add

amendment

With respect

no

been

to Rule

15,

still in its relative infancy,

allowing
52

the

amendment

would

not

be

prejudicial to the opposing party.
there

has

Further,

been

bad

faith

on

Nor does the Court find that

the

part

of

in light of the analysis below,

amendment

would

not

be

futile.

As

the

moving

party.

the Court holds that

to

Rule

20,

the

Court

concludes that Plaintiff's claims against each Defendant arise
out of the same series of transactions or occurrences and many

questions of fact common to all Defendants will likely arise in
the action.

As

a result,

the Court will

address Plaintiff's

claims against Winston.9
2.

Plaintiff's

Substantive Considerations

Second

Amended

Complaint

makes

practically

identical allegations against Winston as it does against Smith.
For example,

like

the Second Amended Complaint asserts that Winston,

Smith,

Plaintiff's

received

Charisse

Mullen's

incarceration on December 22,

letter

regarding

2009 as well as

Criminal Order ordering Plaintiff's release on January 4,

Second Am.

Compl.

111 13,

15.

Moreover,

the

2010.

Plaintiff asserts that

each duty owed to her by Smith was also owed to her by Winston.

See,

•

e.g.,

While

Winston,

Second Am.

the

there

Court

is

Compl.

will

no

11

address

doubt

that

18-21.

Plaintiff

Plaintiff's

Plaintiff's

claims

failure

has

also

against

to

seek

leave to add Winston as a defendant created unnecessary work for
Winston.
The Court notes that Winston is not precluded from
seeking reimbursement for certain costs incurred as a result of
Plaintiff's failure to follow proper procedures, such as the
costs associated with the portion of her motion to dismiss that
addresses Plaintiff's failure to seek leave.
53

asserted precisely the same claims against Winston - § 1983,
False imprisonment, Negligence,
against Smith.

Punitive Damages - as she has

The only real difference between the parties as

far as Plaintiffs Second Amended Complaint is concerned is that

Winston is the Deputy Clerk of Court while Smith is the Clerk of
Court.

Second Am. Compl. 111 2,3.

Given these alleged factual similarities,

Winston asserts

nearly identical defenses to Plaintiff's claims as have been
asserted by Smith.

Having conducted the analysis with respect

to Smith above, the Court sees no reason to belabor the points

with respect to Winston.

Winston has not argued that her job

title as "Deputy" differentiates her in any way, with respect to

Plaintiff's claims, from Smith.

Therefore, at this stage in the

proceedings, when viewing Plaintiff's Second Amended Complaint
in a light most favorable to her, the Court holds that the legal
analysis outlined above

result,

the

Court

is applicable

GRANTS

Winston's

to both parties.

motion

to

As a

dismiss

with

respect to the Fourth Amendment component of Plaintiff's § 1983

claim as well as her False Imprisonment claim.

However,

Court

due

DENIES

her

motion

with

respect

to

the

the

process

component of the § 1983 claim, as well as her negligence claim.
n. count V - Punitive Damages against Smith and Winston

in Count

V of

claims that she

Plaintiff's

Second Amended Complaint,

she

is entitled to punitive damages because both
54

Smith and Winston engaged in "misconduct with actual malice, or

such

recklessness

or

negligence

as

to

disregard of Plaintiff's rights."

evince

Second Am.

According to the Supreme Court of Virginia,

are

warranted

'negligence

not

which

only
is

so

by

malicious

willful

or

269,

209,

273

213

(2004)

(1988)).

-[wlillful

and

The

wanton

Court

has

negligence

wanton

gone

is

disregard of another person's rights

Compl.

conduct,

(quoting Booth v.

conscious

1 40.

"punitive damages

but

also

by

to

as

conscious disregard of the rights of others."'

268 Va.

a

evince

a

Etherton v. Doe,

Robertson,

on

to

acting

236 Va.

explain

consciously

that

in

or acting with reckless

indifference to the consequences, with the defendant aware, from

his knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to another."

Id, at 213-14

/T^ng nrtffin v. Shively, 227 Va. 317, 321 (1984)).

While the factual support for Plaintiff's allegations will
be tested at a later point in the proceedings,

the Court finds

that Plaintiff has sufficiently pled conduct on the part of
Smith

and

Winston

that

could

warrant

punitive

damages.

Plaintiff's Second Amended Complaint paints a picture of Smith
and

Winston

being

aware

of

Plaintiff's

incarceration,

yet

possibly deliberately choosing to ignore her predicament.

If

such allegations can be proved, punitive damages are certainly
plausible.
55

tv.

Conclusion

For the reasons stated above,

motion to dismiss,

the Court GRANTS Boyle's

as to count I, the Court concludes that

Boyle is not a state actor and therefore cannot be held liable

under , 1983.

As to Count II. the Court holds that Plaintiff

has not alleged sufficient facts to support a claim of false

imprisonment against Boyle.

With respect to Count III,

the

court concludes that, as a public defender, Boyle is immune from

Plaintiffs malpractice claim.
che

Since the Court nas dismissed

substantive counts against Boyle,

no counts remain upon

which punitive damages can be based, and therefore, the Court

also dismisses Count V against Boyle.

Turning to the Smith and

Winston motions to dismiss, the Court GRANTS » »« -d DBNXES
IK PART each of those motions.

Since the Court concludes that

Plaintiff has sufficiently alleged a . !983 violation premised
on the Due Process Clause, and both parties are not entitled to
..quasi-jUdicial»

immunity,

the

Court

dismiss with respect to Count I.

denies

the

motions

to

As to Count XI, the Court

concludes that the facts alleged do not support a cognizable

claim of false imprisonment against Smith or Winston.

With

aspect to count IV, the Court holds that Plaintiff has alleged
sufficient facts to support a negligence claim.

chese

surviving

claims,

the

Court

declines

Plaintiff's punitive damage claim in Count V.
56

Moreover, given

to

dismiss

The cler* is DXK.CTB, to send a copy of this Order to
counsel of record.
IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
August S>q _, 2011

57