Krumtum v. Crawford et al

Filing 54

OPINION and ORDER granting 15 Motion to Dismiss for Failure to State a Claim; granting 15 Motion to Dismiss for Lack of Jurisdiction; granting 17 Motion to Dismiss for Failure to State a Claim; granting 19 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 8/24/16. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
MATTHEW G. KRUMTUM,
Plaintiff,
v.
STEVEN B. CRAWFORD, ET AL.,
Defendants.

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Case No. 1:16CV00007
OPINION AND ORDER
By: James P. Jones
United States District Judge

Matthew G. Krumtum, Pro Se Plaintiff; W. Bradford Stallard and Nathaniel
D. Moore, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants Stephen
B. Crawford, John S. Austin, and Faith Espositio; Maria Kathryn Maybury, Pro Se
Defendant; J. Christian Obenshain and Donald E. Jeffrey, III, Office of the
Attorney General, Richmond, Virginia, for Defendant James F. Weaver; Mary Foil
Russell, Russell Law Firm, Bristol, Virginia, for Defendants John Bradwell and
Jerry Allen Wolfe.
This civil case was removed from state court asserting claims under 42
U.S.C. § 1983 and state law. The plaintiff, a lawyer suing on his own behalf,
complains that he was wrongfully arrested and prosecuted for violating a domestic
protective order obtained by his former wife. After the charge was dismissed, he
filed the present suit against everyone in sight, including his former wife, her
attorney, the prosecutor, the arresting police officer, and the magistrate who issued
the warrant. The defendants have all moved to dismiss. I find, among other things,
that on the undisputed facts there was probable cause to believe that the plaintiff
had violated the protective order, and I will dismiss the case.

I.
The following facts are taken from the plaintiff’s Complaint and
incorporated documents, which I am bound at this point to accept as true.
The plaintiff, Matthew Krumtum, a lawyer, was married to defendant Maria
Kathryn Maybury, also a lawyer. The couple experienced marital problems and
separated. On May 15, 2013, the Juvenile and Domestic Relations Court for the
City of Bristol, Virginia, entered a Protective Order against Krumtum.

The

Protective Order mandated that he was to have “no contact of any kind” with
Maybury. (Protective Order 17, ECF No. 1-4.) The Protective Order provided that
it would remain in effect for two years, until May 15, 2015.
On February 28, 2014, the plaintiff delivered a 25-page typed letter to
Maybury’s divorce attorney, defendant Faith Esposito, at the attorney’s office. A
preface to the letter stated, “This is a personal letter from me to my wife. We were
schoolmates, we had four children together so have some decency and allow us to
have perhaps this one last private moment.

I would appreciate exercising

discretion and refrain from using, just this once, this communication in litigation.”
(Letter 1, ECF No. 46.) The letter began, “Dear wife Kathy, This is my letter
home.”

(Id.)

The letter reminisced about their history together, included a

discussion of their sex life, and urged their reconciliation.

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Defendant Steven Crawford, a sergeant with the Bristol Police Department,
obtained the letter and filed a criminal complaint against the plaintiff, alleging that
the delivery of the letter constituted a violation of the Protective Order. Based
upon Crawford’s complaint, defendant James Weaver, a Virginia magistrate,
issued an arrest warrant pursuant to Va. Code Ann. § 16.1-253.2 upon his finding
that there was probable cause to believe that the plaintiff had violated the
Protective Order. 1 The plaintiff was arrested pursuant to the warrant on the night
of February 28.

Defendant John Bradwell, an Assistant Commonwealth’s

Attorney for the City of Bristol, prosecuted the case. Krumtum pleaded not guilty
and the charge was dismissed at trial by the state court. The record does not reveal
the reasons for the dismissal.
The plaintiff then filed this lawsuit in the Bristol Virginia Circuit Court
against John Austin (the Bristol police chief), Sgt. Crawford, attorney Esposito,
Assistant

Commonwealth

Attorney

Bradwell,

Jerry

Allen

Wolfe

(the

Commonwealth’s Attorney for the City of Bristol), Magistrate Weaver, Eugene E.
Lohman (the state court judge who dismissed the prosecution against the plaintiff),
Maybury, and three John Does. He alleged seven causes of action: malicious
prosecution under federal law (Count I); malicious prosecution under state law

1

The cited statute provides that if a protective order, as here, prohibits contacts by
the respondent, violation will be punished as a Class 1 misdemeanor.
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(Count II); false imprisonment under state law (Count III); intentional infliction of
emotional distress (Count IV); § 1983 conspiracy (Count V); § 1983 violation of
constitutional rights (Count VI); and defamation (Count VII). He asserts each
claim against each defendant.
While the case was in state court, defendants Maybury, Austin, Crawford,
Esposito, Wolfe, Bradwell, and Weaver filed demurrers in an effort to be
dismissed. 2 The action was then removed to this court. After removal, defendants
Austin, Crawford, and Esposito filed motions to dismiss. The plaintiff has since
filed two consolidated responses that purportedly address all of the demurrers and
motions to dismiss; he has also responded directly to Maybury’s demurrer. Certain
of the defendants have filed replies that address the plaintiff’s responses. The
matter is now ripe for decision.3
II.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a
complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only

2

Judge Lohman has not appeared in the case and apparently has never been
served with process.
3

I will treat the demurrers filed in state court as Rule 12(b)(6) motions and not
require repleading. I will dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court and argument
would not significantly aid the decisional process.
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enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “[I]t does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of defenses.” Republican Party
of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
In deciding whether a complaint will survive a Rule 12(b)(6) motion to
dismiss, the court evaluates it and any documents attached or incorporated by
reference. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700,
705 (4th Cir. 2007). In ruling, the court must regard as true all of the factual
allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and must view those facts in the light most favorable to the plaintiff. Christopher
v. Harbury, 536 U.S. 403, 406 (2002).
Title 42 U.S.C. § 1983 provides a cause of action against “[e]very person
who, under color of any statute . . . of any State . . . subjects, or causes to be
subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws. . . .” “The purpose of § 1983 is to deter state
actors from using the badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992). To state a claim for relief, the plaintiff
must show that he was “deprived of a right secured by the Constitution or laws of

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the United States, and that the alleged deprivation was committed under color of
state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
In Virginia, suits for malicious prosecution are not favored, and the standard
for maintaining such actions is more stringent than it is for most other tort claims.
Lee v. Southland Corp., 244 S.E.2d 756, 758 (Va. 1978). For the plaintiff to
prevail in his state malicious prosecution claim, he has the burden of showing that
the prosecution was (1) malicious, (2) instituted by or with the cooperation of the
defendant, (3) without probable cause, and (4) terminated in a manner not
unfavorable to the plaintiff. Id. Similarly, the Fourth Circuit has recognized a
claim that derives from the Fourth Amendment right to be free from unreasonable
seizures that incorporates elements of the common law tort of malicious
prosecution.

See Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000).

However, the Fourth Circuit has stressed that malicious prosecution is not an
independent cause of action under § 1983. Id. I will nonetheless recognize the
plaintiff’s claim for “malicious prosecution under federal law” as the type of
Fourth Amendment claim discussed in Lambert and will analyze the plaintiff’s
claim using that standard.
In a malicious prosecution action, malice may be presumed from lack of
probable cause, but “the lack of probable cause can never be inferred, even from

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the most express malice.” W. Union Tel. Co. v. Thomasson, 251 F. 833, 837 (4th
Cir. 1918). As has been stated,
Probable cause is based upon a practical assessment of the totality of
the circumstances. There is probable cause for an arrest when facts
and circumstances within the officer’s knowledge are sufficient to
warrant a prudent person, or one of reasonable caution, in believing,
in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense. Probable cause requires
more than bare suspicion but requires less than evidence necessary to
convict. In instances where arresting officers take the additional
procedural step of seeking an arrest warrant, the defendant is then
arrested not upon what the officers believed, but upon the warrant that
the magistrate issued.
Wardrett v. City of Rocky Mount, No. 5:14-CV-854-BO, 2016 WL 1408091, at *3
(E.D.N.C. Apr. 7, 2016) (internal quotation marks, alterations, and citations
omitted).
“[W]here a conspiracy is alleged, the plaintiff must plead facts amounting to
more than ‘parallel conduct and a bare assertion of conspiracy . . . a conclusory
allegation of agreement at some unidentified point does not supply facts adequate
to show illegality.’” A Soc’y Without a Name v. Virginia, 655 F.3d 342, 346 (4th
Cir. 2011) (quoting Twombly, 550 U.S. at 556-57). “The factual allegations must
plausibly suggest agreement, rather than being merely consistent with agreement.”
Id.

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A. Defendant Austin.
The Complaint does not allege that defendant Austin, the police chief,
engaged in any particular conduct that warrants his inclusion in the case. The
plaintiff’s consolidated responses to the defendants’ motions to dismiss are
similarly devoid of any specific allegations against Austin.
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at
555 (internal quotation marks and citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id.
The plaintiff has not set forth any basis for believing that Austin’s status as
the police chief should change this analysis. See Shaw v. Stroud, 13 F.3d 791, 799
(4th Cir. 1994) (stating the elements necessary to establish supervisory liability
under § 1983). Given that no specific facts have been alleged that would connect
Austin to the alleged misconduct, he must be dismissed from the case.
To be sure, the plaintiff’s Complaint repeatedly makes allegations against
the defendants as a whole.

These general allegations against the entire group of

defendants are not enough to save the plaintiff’s Complaint as it relates to Austin
or any other defendant who is not specifically identified as having engaged in some
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tortious conduct. The plaintiff cannot satisfy Twombly and its progeny by making
wholesale allegations against an entire group without identifying some wrong on
the part of individual defendants.
B. Defendant Maybury.
Similarly, the plaintiff has not articulated facts that support any of the causes
of action alleged against defendant Maybury, the plaintiff’s former wife. The only
facts that directly pertain to her are contained in paragraphs 36 to 38 of the
Complaint, which are as follows:
36. In attempts to prove their case, [the defendants]
used Mr. Krumtum’s divorced wife, who was accused of
adultery, Kathryn Maybury, Esquire to testify against
him.
37. Mr. Krumtum’s x-wife, herself a divorce attorney,
then testified in order to have him convicted of a crime
punishable with imprisonment.
38. Mr. Krumtum’s x-wife, then testified and
attempted to use her position as an attorney skilled in the
dissolution of marriage, custody and related divorce
matters to harass and retaliate against Mr. Krumtum.
(Compl. ¶¶ 36-38, ECF No. 1-2.)
The crux of these allegations is that at some point Maybury testified against
the plaintiff. Such testimony, by itself, does not give rise to a cognizable cause of
action. While paragraph 38 of the Complaint, along with several portions of the
plaintiff’s reply to Maybury’s Demurrer, suggest that Maybury was the
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mastermind behind the entire alleged scheme, the plaintiff has pleaded no facts in
support of that conclusion. Since testifying in a criminal action does not provide a
sufficient reason to believe that the plaintiff is entitled to relief against Maybury,
she is dismissed from this case.
C. Defendant Weaver.
Both federal and Virginia law provide for immunity for judicial officers.
See Stump v. Sparkman, 435 U.S. 349, 356 (1978); Bellamy v. Gates, 200 S.E.2d
533, 535 (Va. 1973). In Virginia, such immunity is absolute unless the judicial
officer was acting outside of his jurisdiction. See Bellamy at 535 (“It is also a well
established principle of the law that judicial officers, acting within their
jurisdiction, we exempt from liability in civil actions for their official acts,
although such acts are alleged to have been done maliciously and corruptly.”) If
anything, federal law provides even greater protection to judges because it says
that judicial immunity is only excepted when the judge was “clearly” acting
outside of his jurisdiction. Stump at 355-56, n.6. Such immunity prevents this
action from proceeding against state magistrate Weaver.
The plaintiff argues that the arrest warrant issued by Weaver was so baseless
that it was effectively issued outside of his jurisdiction. However, even if every
one of the plaintiff’s factual allegations is accepted, the plaintiff has not pleaded
sufficient facts to circumvent Weaver’s clearly established judicial immunity. See
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King v. Myers, 973 F.2d 354, 357 (4th Cir. 1992) (“Although a judge who
undertakes to act in an area where he has no subject matter jurisdiction is denied
absolute immunity, it is immaterial that his challenged judicial act may have been
unauthorized by the laws which govern his conduct.”) (internal quotation marks,
citation, and emendation omitted).

Accordingly, defendant Weaver must be

dismissed from this action because he is protected by judicial immunity.
D. Defendant Esposito.
As it relates to defendant Esposito, the opposing divorce attorney, the
plaintiff’s Complaint pleads only that the plaintiff delivered the subject letter to
Esposito. This is not enough to support his causes of action against her. Even if it
could be inferred that Esposito transmitted the letter to the police, there are no facts
alleged that would provide a basis for any remedy against her.
Malicious prosecution claims are discouraged against individuals who, in
good faith, pass information along to law enforcement when they have information
that would excite belief in the reasonable mind that some criminal conduct has
occurred. See O’Connor v. Tice, 704 S.E.2d 572, 575 (Va. 2011); Commissary
Concepts Mgmt. Corp. v. Mziguir, 594 S.E.2d 915, 917 (Va. 2004); Stanley v.
Webber, 531 S.E.2d 311, 314 (Va. 2000) (“In the context of a malicious
prosecution action, probable cause is defined as knowledge of such facts and
circumstances to raise the belief in a reasonable mind, acting on those facts and
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circumstances, that the plaintiff is guilty of the crime of which he is suspected.”)
When the facts concerning the question of probable cause are in dispute, then that
issue is a legal one that should be decided by the court. Id. at 315.
The plaintiff admits that he delivered the letter to Esposito and requested
that she deliver it to Maybury. The Protective Order mandated that the plaintiff
was not to have any contact of any kind with Maybury. The delivery of that letter
was certainly enough to excite belief in a reasonable mind that the terms of the
Protective Order had been violated.
The plaintiff argues that the letter was a settlement offer that he was allowed
to submit because of the ongoing dispute between himself and Maybury. He
compares the letter to the constitutionally protected right to cross-examine
witnesses, and says that any reasonable person should have known that submitting
such a letter was permissible. However, even if every reasonable inference is
taken in favor of the plaintiff, I find his argument unpersuasive.
A plain reading of the letter shows that it was a personal communication
that was intended by the plaintiff to be delivered in some manner to Maybury.
This is enough to excite belief in a reasonable mind that the Protective Order had

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been violated.

Accordingly, the plaintiff has not articulated facts that would

support any cause of action against defendant Espositio.4
E. Defendants Bradwell and Wolfe.
The Supreme Court has held that under § 1983 prosecutors are absolutely
immune from liability when they are acting as officers of the court. Van de Kamp
v. Goldstein, 555 U.S. 335, 341-2 (2009). There are exceptions to this immunity
that apply when prosecutors engage in other tasks, such as those that are
investigative or administrative.

Id. at 341-3.

Virginia law mandates that

prosecutorial immunity is as strong, if not stronger, than it is under federal law.
See Andrews v. Ring, 585 S.E.2d 780, 785 (Va. 2003).
Again, the Complaint sets forth few, if any, facts that specifically relate to
Bradwell and Wolfe. The only inference that could possibly be made against the
two is that Bradwell prosecuted the plaintiff and Wolfe was his supervisor during
the prosecution. Taking those facts as true, prosecutorial immunity protects both
attorneys from all of the plaintiff’s allegations against them.

4

The plaintiff has requested that Counts V (§ 1983 Conspiracy) and VI (§ 1983
Violation of Federal Constitutional Rights) be voluntarily dismissed as to defendants
Esposito and Maybury. I will grant that request and those causes of action against those
defendants will be dismissed without prejudice. The plaintiff has also requested that his
defamation claim (Count VII) be voluntarily dismissed. I will grant the plaintiff’s request
and dismiss the defamation claim against all of the defendants without prejudice.
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F. Defendant Crawford.
Sergeant Crawford filed a criminal complaint alleging the plaintiff violated
the Protective Order, and a subsequent arrest warrant was issued by the magistrate
based upon this complaint. The Protective Order required that the plaintiff have no
contact of any kind with Maybury. When Crawford received the letter, which was
personal in nature and obviously intended to be delivered to Maybury, I find that
Crawford could reasonably believe that this communication was a violation of the
terms of the Protective Order.
“A finding of probable cause to arrest is proper when at the time the arrest
occurs, the facts and circumstances within the officer’s knowledge would warrant
the belief of a prudent person that the arrestee had committed or was committing
an offense.” United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir. 1988) (citing
United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984). This finding is
“based upon a practical assessment of the totality of the circumstances.” Wardrett,
2016 WL 1408091, at *3.
Under the circumstances in this case, I find that there was probable cause for
Crawford to reasonably believe that the plaintiff had violated the Protective Order.
Probable cause merely requires enough evidence “to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.” Brinegar v.
United States, 338 U.S. 160, 175-76 (1949). The first line of the letter specifically
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identifies it as being a “personal letter from me to my wife.” (Letter 1, ECF No.
46.) The plaintiff contends that the letter was a communication of a settlement
offer and therefore not prohibited under the Protective Order. However, the clearly
personal nature of the letter contradicts this assertion, as does the plaintiff’s request
that Esposito refrain from using the letter in the divorce proceedings. Furthermore,
the letter is not addressed to Esposito, Maybury’s lawyer, but was specifically
directed to Maybury herself with the obvious intent under the circumstances that it
would be so directed. The plaintiff did not use the post office to deliver the letter
in question to Maybury, but he used the next best thing, Maybury’s agent.
Accordingly, I find that probable cause to seek a criminal complaint existed based
on the facts alleged.

Accordingly, no valid cause of action has been asserted

against defendant Crawford.
G. False Imprisonment Claim.
I will also dismiss the plaintiff’s false imprisonment claim under state law
(Count III) against all defendants. In Virginia, false imprisonment is “the direct
restraint by one person of the physical liberty of another without adequate legal
justification.” W.T. Grant Co. v. Owens, 141 S.E. 860, 865 (Va. 1928) (internal
quotation marks and citation omitted). False imprisonment claims often arise in
the law enforcement context, and “the gist of the action is the illegal detention of

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the person, without lawful process, or the unlawful execution of lawful process.”
Montgomery Ward & Co. v. Wickline, 50 S.E.2d 387, 389 (Va. 1948).
The Virginia Supreme Court has said that “[i]f the plaintiff's arrest was
lawful, the plaintiff cannot prevail on a claim of false imprisonment.” Lewis v.
Kei, 708 S.E.2d 884, 890 (Va. 2011). The Virginia Supreme Court has further
explained that an arrest will be considered lawful if it was based on a regular and
valid arrest warrant. Id.
The plaintiff alleges that defendant Crawford obtained a regular arrest
warrant using the appropriate channels. There is no allegation that Crawford
misrepresented facts to the magistrate or engaged in any other conduct that would
have made the arrest warrant invalid. Thus, the plaintiff’s arrest was a lawful one,
and he has not articulated facts that support a claim of false imprisonment. I will
therefore dismiss that claim.
H. Intentional Infliction of Emotional Harm.
In order to recover on a claim of intentional infliction of emotional distress,
a plaintiff must satisfy four elements of proof. The plaintiff must show that (1) the
wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous
or intolerable; (3) there was a causal connection between the wrongdoer’s conduct
and the resulting emotional distress; and (4) the resulting emotional distress was
severe. Supervalu, Inc. v. Johnson, 666 S.E.2d 335, 343 (Va. 2008). This state
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cause of action is not favored. Id. at 343. Particularly because I find that probable
cause existed for the issuance of an arrest warrant, I do not find that any of the
defendants’ conduct was outrageous or intolerable. See Russo v. White, 400 S.E.2d
160, 162 (Va. 1991) (holding that conduct complained of was not “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.”)
III.
For the foregoing reasons, it is ORDERED that all of the defendants’
demurrers and motions to dismiss are GRANTED. A separate final order will be
entered herewith.5
ENTER: August 24, 2016
/s/ James P. Jones
United States District Judge

5

The plaintiff requests that he be granted leave to submit an amended complaint
if the court finds his allegations insufficient to state valid causes of action. (Reply 21-22,
ECF No. 45.) However, the central issue in this case is whether there was probable cause
to believe that the plaintiff violated the terms of the Protective Order by his undisputed
delivery of the letter to Esposito intended to be directed to his former wife. Because I
find that there was probable cause, I further find that additional pleadings would not cure
the defects in the plaintiff’s case.
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