Epperson et al v. Payne et al

Filing 149

MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 5/31/2018. (mlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
TAMARA EPPERSON, et al.
Plaintiffs,
v.
DAN SMITH, et al.,
Defendants.

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MAY 31 2018

Case No. 4:16-cv-00050
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge

This matter is before the Court on several pending motions: a Motion for Summary
Judgment from Defendants Brian Hubbard, Danny Martin, and Terry Mikels; a Motion for
Summary Judgment from Defendants Rob Coleman and Dan Smith; a Motion to Dismiss
Plaintiffs’ Amended Complaint from Defendant Stephanie Brinegar-Vipperman; and a Motion
for Summary Judgment filed by Plaintiffs James, Tamara, Kyle, and Mason Epperson.
Following thorough briefing by the parties, I heard oral arguments on all of these motions on
March 6, 2018. For the reasons stated herein, some of Plaintiffs’ claims must proceed to trial.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND 1

I.

This case is unique because the parties largely agree on all the relevant facts. Plaintiffs
James and Tamara Epperson and their children, Plaintiffs Kyle and Mason Epperson, resided at
4037 Ararat Highway in Patrick County, Virginia (“the property”) for over 20 years.
Regrettably, due to the economic downturn, James’s failing health, and bad circumstances, at
some point in 2015 they became unable to pay the credit line on their home. As a result, their

1

Although the facts are recounted herein according to the evidence before the Court, only
Plaintiffs’ allegations in their Amended Complaint are considered when ruling on Defendant Vipperman’s
Motion to Dismiss. For that motion, it is appropriate to accept all of Plaintiffs’ factual allegations as true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

lender initiated foreclosure proceedings against them. Plaintiffs do not fault anyone for this turn
of events, nor do they dispute the validity and propriety of the foreclosure.
Nevertheless, on October 19, 2015, Plaintiffs’ home was sold to Calvin and Vickie Payne
(“the Paynes”). 2 After the sale, the Paynes signed a contract with the trustee to purchase the
property. Importantly, the contract of sale stated: “Vendor [the substitute trustee] will vacate the
property on or before NOVEMBER 19, 2015,” and “Possession of property to be given to
Vendee on or before NOVEMBER 19, 2015.” [ECF No. 113-7.] Plaintiffs do not dispute the
validity of the sale.
Following the sale, Vickie Payne called James Epperson.

Vickie left a voicemail

informing Plaintiffs that she had purchased the home at the foreclosure sale and “she had to get
the keys to it.” (James Epperson Dep. 10:15–19.) When James Epperson returned her call, he
told her that if she gave his family thirty days to move, he would not force her to get a court
order to have the family removed from the property. (Id. 10:20–23.) Although Vickie Payne did
not expressly consent to James Epperson’s proposal, she did agree to come by the property on
the afternoon of October 20 to pick up the keys. The two agreed to speak again around
lunchtime on October 20 to confirm a time for Vickie Payne to come by. (Id. 11:–12:6.)
Despite her agreement with James Epperson and the language in the contract of sale,
Vickie Payne called Defendant Sheriff Dan Smith on October 19, after speaking with James
Epperson. She told him that she had bought the property on the courthouse steps, had made a
down payment, and that she was worried someone might steal or damage a generator on the
property. (Dan Smith Dep. 14:17–15:22.) She asked him whether she could get into the house.
Smith did not know the answer, so he told Vickie Payne he would consult with the
Commonwealth’s Attorney, Defendant Stephanie Brinegar-Vipperman (“Vipperman”). Smith
2

Plaintiffs voluntarily dismissed their claims against the Paynes. [ECF No. 64.]

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did no independent investigation to confirm anything Vickie Payne told him. According to
Smith, he assumed the home was abandoned. (Id. 17:3–5.)
When he called Vipperman, he relayed to Vipperman what Vickie Payne had told him,
and Vipperman advised him that the house belonged to the Paynes and the Paynes could go in.
(Id. 24:6–10.) Vipperman recalls assuming that the “bank had done the writ” of possession on
the property. (Stephanie Brinegar-Vipperman Dep. 9:17–19.) She understood Sheriff Smith to
be asking whether deputies could go to the home with the Paynes “just to be peacemaker . . . .”
(Id. 9:22.) To the best of her recollection, Smith asked whether the deputies could go to the
property with the Paynes “and just make sure everything is peaceful and safe.” (Id. 18:7.)
Smith called Vickie Payne back and informed her that Vipperman had advised that the
house was hers and she could go in. (Smith Dep. 24:6–16.) At that point, Vickie Payne asked if
a deputy could go with her to access the property. (Id. 24:24–25:10.) Smith said he would
arrange for a deputy to go with her to the property that evening; Vickie Payne said she wanted to
wait “until the next day to do it, daylight hours, so forth.” (Id. 26:11–12 (emphasis added.)
Sheriff Smith called Deputy Dustin Foley and directed him to assist Vickie Payne.
(Dustin Foley Dep. 11:15–12:21). According to Foley, Smith told him “the commonwealth
attorney said for [him] to go up there and pretty much gain access to the house.” (Id. 12:17–20.)
Foley understood that he was to accompany Vickie Payne to the property, go in, and “clear the
house, see if anyone was there.” (Id. 14:7–8.)
That night, despite Vickie Payne’s expressed reservations to Smith, the Paynes went with
Foley to the property around 10:30. Although they knocked on the doors and windows, no one
answered.

After walking around the property, they decided to return again the next day.

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Although James Epperson heard people attempting to gain entry into the home, he did not
interact with any of them.
Around 6:00 a.m. on the morning of October 20, Foley called Defendant Lieutenant Rob
Coleman. (Rob Coleman Dep. 11:21–23.) Coleman testified that Foley told him he had been to
the property before “and attempted to make contact with somebody there inside the residence.”
(Id. 12:5–7.) After speaking with Foley, Coleman drove to the Sheriff’s Office and spoke with
Sheriff Smith by phone.

Sheriff Smith “told [Coleman] that he had spoken with [the]

Commonwealth Attorney, Stephanie Vipperman, and the Paynes had every right to be there on
the property and that we could go with them to make sure that there was nobody else on the
property.” (Id. 15:9–13.) At no point did Coleman inquire as to whether any legal process had
been undertaken to remove the Eppersons from the property, and Coleman and Smith did not
discuss the extent of assistance that Coleman was permitted to provide to the Paynes. (Id. 17:16–
19.) According to transcripts of the radio conversations that morning, Coleman knew the former
owners were still living at the property. [See, e.g., ECF No. 121-13.] Coleman also knew that a
legal process existed to evict a resident from a home. (See Coleman Dep. 10:6–11.) In going to
the home, Coleman’s intention was to make entry into the home and ensure no one was inside.
(Id. 17:20–18:9.)
At around 8:30 that morning, Coleman and Deputy Lewis Carroll met the Paynes at the
property. They banged on the front and back doors, but got no response from anyone inside. (Id.
23:1–18.) Coleman attempted to breach a walk-through door in the garage, but was unable to
make entry. (Id. 25:16–26:3.) Coleman and Carroll had to leave the property because they were
due in court at 9:30, so Coleman called Defendant Investigator Brian Hubbard and instructed
him to bring breaching tools to the property. (Id. 25:1–17.)

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After he left the property, Coleman met with Hubbard and Defendant Investigator Terry
Mikels at the Ararat Volunteer Fire Department. According to Coleman:
I explained to them in person what we had. I told them that I had
knocked on the doors and the windows and I was not able to get
anybody to respond inside. I told them that they [the Paynes] were
trying to reach a locksmith, but one wasn’t there when I left. You
know, they [presumably the Paynes] did want to make entry. I had
already spoken with the Sheriff and the Sheriff had consulted with
the Commonwealth Attorney, and based on what they told me, you
know, we had permission to go in. I had sent them to make entry
into the residence just to make sure that there was nobody else
inside and then Carroll and myself left.
(Id. 27:23–28:10.) Coleman also spoke with Defendant Investigator Danny Martin on the radio.
(Id. 28:11–16.) Over the radio, Coleman told Martin that the Sheriff had spoken with the
Commonwealth Attorney “and they[3] have every right to go in.” [ECF No. 121-13.]
Hubbard was aware that a “writ of possession or unlawful detainer” action was typically
necessary to remove someone from a house in an eviction proceeding. (Brian Hubbard Dep.
8:11–14.) Hubbard recalls that, at the fire station, he asked Coleman directly whether “papers”
had been issued:
I do recall asking Lieutenant Coleman if we had papers on the
house and he said that it was taken care of. He had talked to the
Sheriff, they had talked to the Commonwealth Attorney, and we
were good to go in. . . . According to Lieutenant Coleman, we were
supposed to go in.
(Id. 9:3–7; 18–21.) Based on that conversation, Hubbard believed they had authority to enter the
home. (Id. 9:15–17.)
Hubbard and Mikels left the fire department. While en route to the property, Hubbard
radioed Martin and asked him to meet them at the property as well. When Hubbard and Mikels
arrived at the property, the Paynes were already there. While awaiting Martin, Hubbard and
3

From the context of the statement, it appears “they” refers to the Paynes, not the deputies.

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Mikels walked around the house, knocking on the doors. (Id. 17:19–21.) Hubbard and Vickie
Payne even tried calling Plaintiffs’ phone, 4 but no one answered. (Id. 17:22–18:21.)
A locksmith eventually arrived and was able to gain access to the garage. (Id. 22:4–9.)
Hubbard, Martin, and Mikels (“the deputies” 5) entered the garage with their weapons drawn.
Inside the garage, and up several steps, was a glass door that led into the home. While the
deputies were checking the vehicles in the garage to see if anyone was hidden inside, Hubbard
noticed the barrel of a shotgun through the glass door. Hubbard yelled, “Sheriff’s Office. Drop
the gun.” It was later determined that the man holding the shotgun was James Epperson.
According to Hubbard:
While we were yelling at him, it was almost like talking to a wall.
It was like someone didn’t understand. He had a glare or a glaze
over his face. We call it the thousand yard stare. They are just,
you know, looking right through me when I’m talking to them.
(Id. 29:12–17.) At that point, Hubbard was in fear for his life. (Id. 30:1–4.) He pointed his
weapon, which had a flashlight attached to it, at James Epperson. The flashlight was bright
enough to interfere with someone’s ability to see. (Id. 30:18–23.)
Eventually James Epperson comprehended what the deputies were saying and lowered
his gun. At the deputies’ direction, James unlocked the door into the garage and let the deputies
into the home. (Id. 32:11–13.) From that point on, James Epperson was completely cooperative.
Once he was removed from the house, James was placed in handcuffs. (Id. 32:24–33:3.)
After he was placed in handcuffs, James Epperson was searched. One of the deputies—
but not Martin—took James Epperson’s keys from his pocket, “tosse[d] them to Vickie Payne
4

The record is unclear as to whether the phone number attempted was a landline inside the
property or a cellular phone belonging to one of the plaintiffs.
5

The Court is aware of their differing ranks and uses the collective term “deputies” only for ease
of reference.

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and [said], ‘I guess these are yours.’” (James Epperson Dep. 38:19–39:9.) James Epperson’s
key ring included car keys and keys to other personal property.
Hubbard then asked James whether anyone else was inside the house; James responded that
his son, Kyle, was upstairs in bed because he was home, sick, from school. (Hubbard Dep. 35:5–
16.) The deputies put on bullet proof vests and reentered the home to locate Kyle Epperson. (Id.
35:20–22.)
The deputies went through the home calling out for Kyle, and Kyle responded from
upstairs. At some point (either in the home or later outside), Hubbard relayed to Kyle that the
deputies had encountered his father with a shotgun and they simply wanted to get Kyle out of the
house safely. (Id. 38:3–6.) Kyle complied with the deputies’ instructions and came downstairs
with his hands visible. The deputies asked him to lie on the ground; he complied. Mikels put
him in handcuffs, and Kyle was escorted outside.
After they cleared the house, Kyle wanted to retrieve some personal items from the home.
Hubbard—and possibly others—told Kyle that he needed the Paynes’ permission to retrieve
anything from the house. (Hubbard Dep. 41:18–21; 42:11–43:6.) The deputies assisted Kyle in
carrying “a large computer and some stuff out to his car . . . .” (Id. 41:12–13; see also Kyle
Epperson Dep. 13:7–24, 14:9–20.)
James Epperson was then transported to the Sheriff’s office. The deputies spoke about
charges, “about either getting several warrants on one of [them] getting the warrants all in one
complaint.”

(Hubbard Dep. 45:7–11.)

Ultimately, Hubbard got three warrants on one

complaint; three counts of brandishing a firearm, one for each of the deputies. (Id. 45:12–17.)
James Epperson appeared in court on January 12, 2016, when the Commonwealth
Attorney nolle prossed all charges against him. On her copy of the arrest warrant, she wrote:

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Bank hadn’t completed foreclosure so ∆ [James Epperson] had
legal right to be there [and] police didn’t
[ECF No. 121-24 (emphasis in original).]
Following this ordeal, James Epperson and his family brought suit in this Court on
October 19, 2016, exactly one year after the foreclosure sale. (See Compl. [ECF No. 1].)
Following preliminary rulings and the filing of an Amended Complaint [ECF No. 89], several
motions were filed: Hubbard, Martin, and Mikels filed a Motion for Summary Judgment [ECF
No. 100]; Smith and Coleman filed a Motion for Summary Judgment [ECF No. 110]; Vipperman
filed a Motion to Dismiss [ECF No. 118]; and Plaintiffs filed a Motion for Summary Judgment
[ECF No. 130]. Following thorough briefing on the motions, I heard oral arguments on March 6,
2018. After reviewing of the evidence (where appropriate), relevant law, and arguments of
counsel, the matter is ripe for disposition.
II.

STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual
allegations in the complaint as true.

Id.

The Complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at
555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to
state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765
-8-

(4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations,” a pleading that merely offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Summary judgment is appropriate where there is no genuine dispute of material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); George & Co. LLC
v. Imagination Entertainment Ltd., 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of
material fact exists “[w]here the record taken as a whole could…lead a rational trier of fact to
find for the nonmoving party.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal quotation
marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute cannot be created where there is only a scintilla of evidence favoring
the nonmovant; rather, the Court must look to the quantum of proof applicable to the claim to
determine whether a genuine dispute exists.

Scott v. Harris, 550 U.S. 372, 380 (2007);

Anderson, 477 U.S. at 249−50, 254. A fact is material where it might affect the outcome of the
case in light of the controlling law. Anderson, 477 U.S. at 248. On a motion for summary
judgment, the facts are taken in the light most favorable to the non-moving party insofar as there
is a genuine dispute about those facts. Scott, 550 U.S. at 380. At this stage, however, the
Court’s role is not to weigh the evidence, but simply to determine whether a genuine dispute
exists making it appropriate for the case to proceed to trial. Anderson, 477 U.S. at 249. It has
been noted that “summary judgment is particularly appropriate . . . [w]here the unresolved issues
are primarily legal rather than factual” in nature. Koehn v. Indian Hills Cmty. Coll., 371 F.3d
394, 396 (8th Cir. 2004).

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III.

DISCUSSION
a. Stephanie Brinegar-Vipperman’s Motion to Dismiss 6
In considering Vipperman’s Motion to Dismiss, I am confined to a review only of the

allegations in Plaintiffs’ Amended Complaint. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Upon review of those
allegations, Plaintiffs have failed to state a claim against Vipperman and the counts against her
will be dismissed.
Plaintiffs allege that Vipperman committed a due process and taking violation (Count I)
and a Fourth Amendment violation (Count II). They also assert claims against her in her official
capacity for violations of the Fourth (Count VIII) and Fourteenth (Count IX) Amendments.
Turning to the allegations in the Amended Complaint, the gravamen of Plaintiffs’
allegations against Vipperman are that she “told Sheriff Smith that the Paynes ‘could go to that
property,’ ‘that basically it was her property now, . . . the home was Vickie’s,’ and that law
enforcement ‘could do there with the Paynes while they did what they wanted to do with their
property.’” (Am. Compl. ¶ 29.) Plaintiffs do not allege that Vipperman authorized any of the
alleged constitutional violations. They do not contend that Vipperman authorized: entering the
home; searching the property; searching James Epperson; arresting James Epperson; searching
Kyle Epperson; detaining Kyle Epperson; dispossessing James Epperson of his keys; or
converting the personal property of the Eppersons to the Paynes. All that is alleged is that
Vipperman advised Sheriff Smith that the property was “basically” the Paynes, and that law

6

I pause to note that Plaintiffs’ inclusion of over 100 pages of evidence in opposition to the
motion to dismiss is improper. Under 12(b)(6), review is confined to the pleadings only. See Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). Accordingly, I have
reviewed the motion without reference to or consideration of any extrinsic evidence.

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enforcement could be present while the Paynes “did what they wanted to do with their property.”
(Am. Compl. ¶ 29.)
All things being equal, and however misguided Vipperman may have been in answering a
complicated property question from the hip considering how these events played out, the advice
she is alleged to have given was correct. After the foreclosure sale, the property was “basically”
the Paynes. Although the answer to the question is murky, there is no doubt that the Paynes’
interest in the home was greater than the Eppersons at the conclusion of the foreclosure sale.
At that point, the Paynes were entitled, under Virginia law, to make entry to the property
“by such reasonable force as was necessary, short of that which threatened death or serious
bodily harm, to regain possession.” Shorter v. Shelton, 33 S.E.2d 643, 646 (Va. 1945) (citing
Allen v. Gibson, 4 Rand. (25 Va.) 468, 471 (1826)). They certainly were within their rights to go
to the property and ask the Eppersons to vacate. And law enforcement were certainly permitted
to go with the Paynes while they did that. Taking the allegations in the light most favorable to
Plaintiffs, the most that can be said is that Vipperman opined that law enforcement were
permitted to go to the property with the Paynes and play the role of peacekeepers. No one can
reasonably dispute that is an accurate statement.
Plaintiffs’ argument, then, is that Vipperman’s opinion, even if accurate, set in motion the
events that took place. But that far-fetched attenuation is insufficient to state a claim here.
There is no basis in the Amended Complaint to conclude that Vipperman should have known
that her advice would not be heeded, nor any factual allegation that Vipperman did not intend for
her advice to be heeded. Any constitutional violation that occurred cannot be linked to her
advice, but rather to the failure to heed her advice.
Vipperman’s Motion to Dismiss will be granted.

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Counts I and II cannot stand, and

Turning to Counts VIII and IX, the claims against Vipperman in her official capacity,
those claims are barred by the Eleventh Amendment. See Blankenship v. Warren Co., 918 F.
Supp. 970, 974 n.4 (W.D. Va. 1996). In Virginia, a Commonwealth Attorney is a constitutional
officer. Va. Const. art. VII, § 4; Burnett v. Brown, 72 S.E.2d 394, 395 (Va. 1952). The
immunity afforded by the Eleventh Amendment extends, where appropriate, to “arms of the
state” and state employees acting in their official capacities. See Harter v. Vernon, 101 F.3d
334, 337 (4th Cir. 1996). For the reasons I stated previously [see ECF No. 41, pg. 5–7],
Vipperman is immune from suit in her official capacity. Counts VIII and IX must be dismissed
as to Vipperman.
Because the Amended Complaint fails to state a claim against Vipperman upon which
relief can be granted, her Motion to Dismiss is well taken.
b. Hubbard, Martin, and Mikels’s Motion for Summary Judgment
Both Plaintiffs and Defendants Hubbard, Martin, and Mikels have moved for summary
judgment on all counts. I will discuss each count, the relevant law, and the competing motions
for summary judgment. First, however, considering that Hubbard, Martin, and Mikels have
asserted a claim of qualified immunity as a defense to all counts, I will review the basics of
qualified immunity before addressing each count.
Qualified immunity shields officials from civil liability so long as their conduct “does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). Initially, the Supreme Court required lower courts, when
confronting a claim of qualified immunity, to proceed in sequential fashion by first determining
“whether the plaintiff had shown a violation of a constitutional right, and only if so, determine

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whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged
misconduct.” Brown v. Elliott, et al., 876 F.3d 637, 641 (4th Cir. 2017) (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)). The Court mercifully changed course in 2009, holding that a District
Court may “skip ahead to the question whether the law clearly established that the officer’s
conduct was unlawful in the circumstances of the case.” Pearson, 555 U.S. at 232, 236 (quoting
Saucier, 533 U.S. at 201) (internal quotation marks omitted).
To resolve the question whether the right was clearly established at the time of the
defendant’s conduct, the court must ascertain the “circumstances of the case.”

Id. at 232

(quoting Saucier, 533 U.S. at 201). “At summary judgment, in the qualified immunity context as
in others, courts must view the evidence in the light most favorable to the party opposing
summary judgment.” Brown, 876 F.3d at 641 (citing Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014)). In so viewing the evidence, a court must “credit[] the plaintiff’s evidence and draw[] all
reasonable inferences in the plaintiff’s favor.” Id. at 641–42.
“A court must then ask whether the official’s conduct under these ‘circumstances’
violated ‘clearly established law.’” Id. at 642 (citing Plumhoff v. Rickard, 134 S. Ct. 2102, 2023
(2014)). “Clearly established law” is not defined “at a high level of generality,” because the
“dispositive question is ‘whether the violative nature of particular conduct is clearly
established.” Luna, 136 S. Ct. at 308 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
A constitutional right is “clearly established” when “its contours [are] sufficiently clear that a
reasonable officer would understand that what he is doing violates that right.” Hope v. Pelzer,
536 U.S. 730, 739 (2002). “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. at 202 (citing Wilson v.

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Layne, 526 U.S. 603, 615 (1999)). If the right is not “clearly established,” the officer is entitled
to immunity. See Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012).
1. Count I: Due Process/Takings Violation
Count I makes two complimentary claims: that Defendants Hubbard, Martin, and Mikels
(“the deputies”) effected a taking of their home without due process, and that the deputies
effected a taking of their personal property without due process.
In order to succeed on a Due Process/Takings claim under the Fourth and Fourteenth
Amendments, Plaintiffs “must show that [they] had a property interest, that the state deprived
[them] of that interest, and that the procedures employed were constitutionally inadequate.”
Coleman v. Calvert Cnty., No. GJH-15-920, 2016 WL 5335477, at *7 (D. Md. Sept. 22, 2016)
(citing Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009).
In assessing a procedural due process claim, “[u]nless there has been a ‘deprivation’ [of a
protected liberty or property interest] by ‘state action,’ the question of what process is required
. . . is irrelevant, for the constitutional right to ‘due process’ is simply not implicated.” Iota Xi
Chapter of Sigma Chi Fraternity, 566 F.3d at 146 (quoting Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 167, 172 (4th Cir. 1988)). “In order for the plaintiffs to succeed on their
procedural due process claim, they are obliged to show (1) a cognizable ‘liberty’ or ‘property’
interest; (2) the deprivation of that interest by ‘some form of state action’; and (3) that the
procedures employed were constitutionally inadequate.” Id. (quoting Stone, 855 F.2d at 172).
Turning to the facts established in discovery, Defendant Hubbard, Martin, and Mikels are
entitled to qualified immunity for entering the property for one simple reason: they asked the
right question of their superior, Lieutenant Coleman. As Hubbard testified:
I do recall asking Lieutenant Coleman if we had papers on the
house and he said that it was taken care of. He had talked to the
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Sheriff, they had talked to the Commonwealth Attorney, and we
were good to go in. . . . According to Lieutenant Coleman, we were
supposed to go in.
(Hubbard Dep. 9:3–7; 18–21.) The radio transcripts show that Coleman told Martin that the
Sheriff had spoken with the Commonwealth Attorney and “they have every right to go in.”
[ECF No. 121-13.] And Coleman himself testified that he told Hubbard and Mikels at the fire
station that, based on what the Sheriff told him, the deputies “had permission to go in.”
(Coleman Dep. 27:23–28:10.
Those facts make it clear that Hubbard, Martin, and Mikels reasonably believed that they
had lawful permission to enter the property and the home. It is reasonable for deputies to accept
the word of their superiors that the appropriate legal steps have been taken. Here, Deputy
Hubbard even went so far as to ask Coleman directly whether they had “papers” on the house.
Under these circumstances, a reasonable officer would have believed that entering the property
was lawful.
Qualified immunity is meant to shield officials from liability for making “bad guesses in
gray areas,” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), and this situation so
qualifies. It was reasonable for the deputies to accept the word of their supervisor that the
necessary “papers” had been issued, and they were not clearly wrong in relying on that
information. Had the writ of possession been entered, there is no doubt that the deputies would
have been within their rights to enter the home and ensure the Paynes had access to the property.
The false information they were given by their supervisor, without any evidence in the Record to
suggest the deputies had reason to question Lt. Coleman, shields them from liability for their
mistake.

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The deputies are not entitled to qualified immunity for the taking of Plaintiffs’ personal
property, however, but they are entitled to summary judgment. Even though the deputies had no
reason whatsoever to think the Paynes were entitled to all of Plaintiffs’ personal property, and
even though they grossly overstepped their authority in handing Plaintiffs’ personal property
over to the Paynes, Plaintiffs cannot recover under § 1983.
“Section 1983 was intended to protect only federal rights guaranteed by federal law, and
not tort claims for which there are adequate remedies under state law.” Wright v. Collins, 766
F.2d 841, 849 (4th Cir. 1985) (citing Tucker v. Duncan, 499 F.2d 963, 965 n.1 (4th Cir. 1974)).
Section 1983 “is not a federal remedy for ordinary state tort claims, for it can vindicate only
federal constitutional rights determined under federal substantive law.” Tucker, 499 F.2d at 965
n.1. For the unlawful taking of their personal property, Plaintiffs possess “a post-deprivation
remedy under Virginia law, the Virginia Tort Claims Act.” Barbour v. Wheeler, No. 7:10-cv00089, 2010 WL 1816625, at *1 (W.D. Va. Apr. 30, 2010); see also Foley v. Santiago, No. 976013, 1997 WL 294475, at *1 (4th Cir. June 3, 1997) (per curiam) (unpublished). A state law
conversion claim is an adequate remedy at state law that is sufficient to sound the death knell to
Plaintiffs’ procedural due process claim for the taking of their personal property. Accord Vicory
v. Walton, 721 F.2d 1062, 1063–66 (6th Cir.), cert. denied 105 S. Ct. 125 (1984)); Dockery v.
Tucker, No. 2006 WL 5893295, at *10 (E.D.N.Y. Sept. 6, 2006). Therefore, Plaintiffs “cannot
prevail with a constitutional claim under § 1983 . . . based on the alleged property loss in this
case.” Barbour, 2010 WL 1816625, at *1. The deputies are entitled to summary judgment on
Count I.

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2. Count II: Violation of the Fourth Amendment
The deputies again assert qualified immunity as a shield to liability for the allegedly
unlawful search of the property and seizures of both James and Kyle Epperson.
The Fourth Amendment “protects two types of expectations, one involving ‘searches,’
the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed. A ‘seizure’ of property occurs where there is some meaningful
interference with an individual’s possessory interest in that property.’”

United States v.

Jacobsen, 466 U.S. 109, 113 (1984).
The deputies argue that, because Plaintiffs’ had no legally cognizable property interest in
the property, there can be no Fourth Amendment violation. This is wrong. “[P]roperty rights are
not the sole measure of Fourth Amendment violations.” Soldal v. Cook Cnty., Ill., 506 U.S. 56,
63 (1992). “[T]he ‘principal’ object of the [Fourth] Amendment is the protection of privacy
rather than property and ‘this shift in emphasis from property to privacy has come about through
a subtle interplay of substantive and procedural reform.” Id. (quoting Warden, Md. Penitentiary
v. Hayden, 387 U.S. 294, 304 (1967).
This conclusion is more obvious when compared to the Fourth Amendment’s protections
in a criminal context.

When the Fourth Amendment is implicated, a warrant, exigent

circumstances, or consent is required before police may enter a home. Imagine that Plaintiffs
were suspected of selling drugs from the property. Would the deputies have sought a warrant to
search the property even though the foreclosure sale occurred the day before? Of course they
would have, because they would have recognized that, despite the foreclosure, Plaintiffs still had
a reasonable expectation of privacy at that address. Because they did, the Fourth Amendment
barred a warrantless intrusion into the property.

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Nevertheless, for the reasons stated above, the deputies are entitled to qualified immunity
for the entrance into and search of the home. They reasonably relied on the information relayed
to them by their supervisor, and thus they are not liable for the wrongful entry into Plaintiffs’
home.
Turning to the seizures of James and Kyle Epperson, the same qualified immunity
analysis controls. “[A] person is ‘seized’ only when, by means of physical force or a show of
authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544,
553 (1980). “The Fourth Amendment’s requirement that searches and seizures be founded upon
an objective justification, governs all seizures of the person, ‘including seizures that involve only
a brief detention short of traditional arrest.” United States v. Brignoni-Price, 422 U.S. 873,
(1975) (citing Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16–19
(1968)). There is no doubt whatsoever that both James and Kyle Epperson were seized by the
deputies.
Looking at the facts in the light most favorable to Plaintiffs, the deputies reasonably
believed that eviction proceedings had concluded against Plaintiffs and that they remained on the
property in derogation of the law. Based Coleman’s statements to the deputies, they reasonably
(but falsely) believed James and Kyle Epperson to be trespassers. When they encountered James
Epperson, he was in possession of a firearm on property a reasonable officer would have
believed he had no right to be on. Accordingly, and for their own safety, they seized him. Under
these facts, I must conclude that a reasonable officer would not have known any such seizure to
be improper, and accordingly the deputies are entitled to qualified immunity for seizing James
Epperson.

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The wrongful seizure of Kyle Epperson, regrettably, suffers the same fate. Based on
what they had been told by Lt. Coleman, the deputies reasonably believed that Kyle was a
trespasser, and the deputies are shielded from liability of that mistake under the doctrine of
qualified immunity.
For these reasons, the deputies are entitled to summary judgment on Count II.
3. Count V: Trespass to Realty
For the reasons they are entitled to qualified immunity on Counts I and II, the deputies
are entitled to the state law equivalent immunity for the common law claim of trespass. See
DeChene v. Smallwood, 226 Va. 475 (1984). DeChene stands for the proposition that an officer
is entitled to qualified immunity under Virginia law when he shows that (i) he believed in good
faith that his actions were lawful, and (ii) that his belief was reasonable. Veney v. Ojeda, 321 F.
Supp. 2d 733, 747 (E.D. Va. 2004) (citing DeChene, 226 Va. at 479). As discussed, it was
reasonable for the deputies to rely on the information provided by their superiors. In the absence
of any evidence to suggest that there was a reason to doubt Coleman’s statements, the deputies
are entitled to summary judgment on Count V.
4. Count VI: Conversion
Conversion “is any wrongful exercise or assumption of authority, personally or by
procurement, over another’s goods, depriving him of their possession.” Universal C.I.T. Credit
Corp. v. Kaplan, 92 S.E.2d 359, 365–66 (Va. 1956) (internal citation and quotation omitted).
“Any distinct act of dominion wrongfully exerted over the property of another, and in denial of
his rights, or inconsistent therewith, may be treated as a conversion and it is not necessary that
the wrongdoer apply the property to his own use. And when such conversion is proved, the

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plaintiff is entitled to recover, irrespective of good or bad faith, care or negligence, knowledge or
ignorance.” Id. (internal citation and quotation omitted).
There is no doubt that a conversion of Plaintiffs’ cars and other personal property
occurred. The record is unclear, however, as to which of the deputies is responsible. James
Epperson testified that “[a] guy took” his keys from his pocket and gave them to Vickie Payne.
He is unsure who. (James Epperson Dep. 38:19–39:9.) James Epperson was clear, however, that
it was not Deputy Martin. (Id. 39:6–7.) Whoever took the keys from James Epperson is liable
for converting the personal property from Plaintiffs’ to the Paynes.
Likewise, whichever deputy told Kyle Epperson that he “could not collect anything
without asking the current people that owned the house if [he] could have it or not,” (Kyle
Epperson Dep. 12:6–9) is liable for conversion. Whoever made that statement wrongfully
exerted dominion over the contents of the home and in denial of Plaintiffs’ rights. Such actions,
when coupled with his role as a law enforcement officer, amounted to a conversion.
Summary judgment is not appropriate, however, because the record is unclear as to which
of the named defendant deputies, if any, undertook these wrongful acts. There is nothing in the
record to suggest a concert of action such that all are liable as one. Likewise, the record offers
no evidence to support a claim of immunity under DeChene. The testimony is clear that no one
discussed what to do with any personal property in the home. Thus, the deputies cannot rely on
the direction of their superiors to justify their actions. They had absolutely no basis to believe
that the “papers,” a presumed writ of possession, had anything to do with the personal property
inside the home, let alone Plaintiffs’ automobiles.

A jury will need to determine who is

responsible for the conversion of Plaintiffs’ personal property. Summary judgment will be
denied to Plaintiffs and the deputies on Count VI.

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5. Count VII: Malicious Prosecution
To support a claim of malicious prosecution, a plaintiff must show: (1) the initiation or
maintenance of proceedings by the defendant against the plaintiff; (2) termination of that
proceeding favorable to the plaintiff; and (3) lack of probable cause to support that proceeding.
Brooks v. City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996)).
Based on the uncontested facts in the record, the deputies are entitled to summary
judgment on Count VII. As discussed above, they reasonably believed that Plaintiffs were
trespassers. Accordingly, when they saw James Epperson with a shotgun, they had probable
cause to arrest and charge him with brandishing a firearm under Virginia law. 7 Because there
was probable cause to support that proceeding, even though all charges were dropped, Plaintiffs
cannot prevail on this claim and the deputies are entitled to summary judgment.
6. Conclusion as to the deputies
For all the reasons stated above, the deputies are entitled to summary judgment on Counts
I, II, V, and VII. Neither the deputies nor Plaintiffs are entitled to summary judgment on Count
VI, and that claim will proceed to trial.
c. Smith and Coleman’s Motion for Summary Judgment
Both Plaintiffs and Defendants Smith and Coleman have moved for summary judgment
on all counts. I will discuss each count, the relevant law, and the competing motions for
summary judgment.
7

Virginia Code § 18.2-282 makes it a crime to “point, hold or brandish” a firearm “in such a
manner as to reasonably induce fear in the mind of another . . . .” See Kelsoe v. Commonwealth, 308
S.E.2d 104, 104 (Va. 1983) (per curiam). Although James Epperson may not have been able to see
through the garage door, and although his maladies and medication may have slowed his reaction time in
responding to the deputies’ commands to put the weapon down, there still existed probable cause for his
arrest based on what the deputies perceived. See Smith v. Monday, 848 F.3d 248, 253 (4th Cir. 2017)
(“The probable-cause inquiry turns on two factors: ‘the suspect’s conduct as known to the officer, and the
contours of the offense thought to be committed by that conduct.’” (quoting Graham v. Gagnon, 831 F.3d
176, 184 (4th Cir. 2016) (emphasis added)).

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1. Count I: Due Process/Takings Violation
Neither Sheriff Smith nor Lieutenant Coleman is entitled to summary judgment as to the
due process violation in regards to Plaintiffs’ home.
“In order for the plaintiffs to succeed on their procedural due process claim, they are
obliged to show (1) a cognizable ‘liberty’ or ‘property’ interest; (2) the deprivation of that
interest by ‘some form of state action’; and (3) that the procedures employed were
constitutionally inadequate.” Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d
138, 145 (4th Cir. 2009) (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th
Cir. 1988)).
The evidence here is that, after speaking with the Commonwealth Attorney and being
advised that the deputies could go with the Paynes while they did what they wanted to do with
their property, either Smith or Coleman went outside her advice and told the deputies they had
authority to enter the home. Accordingly, when either Smith or Coleman changed the advice
given by the Commonwealth Attorney, and taking the facts in the light most favorable to
Plaintiffs, they set in motion the unlawful taking of property in which Plaintiffs’ had a
cognizable property interest.
Smith and Coleman attempt to avoid this conclusion by arguing that Plaintiffs had no
protected property interest, and thus were not entitled to any due process prior to the forcible
removal from their home. But that argument misunderstands the evidence. When viewed in the
light most favorable to Plaintiffs, James Epperson spoke with Vickie Payne and was given, at a
minimum, an additional 24 hours in the home. According to James, he and Vickie agreed to
speak the next day to arrange a time for her to come by, walk through the house, and get the
keys. At that point, and assuming the law Smith and Coleman argue applies, Vickie Payne as

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sole owner of the property gave Plaintiffs permission to stay until, at the earliest, the next
afternoon. Before that period expired, either Smith or Coleman began filtering down instructions
to extinguish Plaintiffs’ remaining property rights without due process. Accord Minnesota v.
Olson, 495 U.S. 91, 96–97 (1990) (holding that overnight guests have a legitimate expectation of
privacy in their quarters).
A jury will need to decide who altered the advice of the Commonwealth Attorney, and
why. 8 If the alteration was purposeful, Plaintiffs will be entitled to recover against the original
transgressor. If, on the other hand, the alteration happened by reasonable mistake, Smith and
Coleman will be entitled to prevail. The evidence is unclear at this stage, and thus the matter is
not appropriate for summary judgment.
As to the takings claim in regard to Plaintiffs’ personal property, the record is devoid of
any action by Smith or Coleman that led to the taking. Because the issue was never discussed by
or with Smith or Coleman, and because neither Smith nor Coleman played any role in the
decision to take actions which dispossessed Plaintiffs of their personal property, Smith and
Coleman are entitled to summary judgment insofar as Count I states a claims for an unlawful
taking, without due process, of Plaintiffs’ personal belongings.
2. Count II: Violation of the Fourth Amendment
Like their motion for summary judgment on Count I, Smith and Coleman’s liability for a
violation of the Fourth Amendment rises and falls on who altered the Commonwealth Attorney’s
advice, and why. In examining a Fourth Amendment claim, a court must first determine whether
a party “had a reasonable expectation of privacy in the area searched or the item seized.” United
States v. Rusher, 966 F.2d 868, 873-74 (4th Cir. 1992). A warrantless search or seizure violates
8

Deputy Foley testified that Sheriff Smith told him to “gain access to the house.” (Foley Dep.
12:17–20.) Lt. Coleman testified that Smith told him that they “could go with [the Paynes] and make sure
there was nobody else on the property.” (Coleman Dep. 15:9–13.)

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“the Fourth Amendment only if [the defendant] manifested a subjective expectation of privacy
. . . that society accepts as objectively reasonable.” California v. Greenwood, 486 U.S. 35, 39
(1988). “[A] search or seizure carried out on a suspect’s premises without a warrant is per se
unreasonable, unless the police can show that it falls within one of a carefully defined set of
exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 474 (1971).
Here, regardless of whether the law recognized that Plaintiffs’ retained some legal
interest in the property following the foreclosure sale, they certainly had a reasonable expectation
of privacy in their home that society would deem reasonable. 9 When either Smith or Coleman
filtered down instructions to enter the home without legal justification, they set in motion a
violation of the Fourth Amendment.
Smith and Coleman counter that the Paynes permission to enter the home absolves them
from any liability. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). But taking the
facts in the light most favorable to Plaintiffs, Vickie Payne permitted Plaintiffs to stay until at
least midday on October 20. At that point Plaintiffs were, at a minimum, overnight guests
protected by the Fourth Amendment. See Olson, 495 U.S. at 96–97. Under the facts, then,
Smith and Coleman took the word of a stranger that they could enter a home they had no idea if
she owned. By directing the officers to enter the home, either Smith or Coleman violated the
Fourth Amendment. A jury will have to determine who made the fateful determination, and
whether it was a purposeful act or a reasonable misunderstanding. Their Motion for Summary
Judgment will be denied as to Count II.
3. Count III: Supervisory Liability
“The principle is firmly entrenched [in the law of § 1983] that supervisory officials may
be held liable in certain circumstances for the constitutional injuries inflicted by their
9

See infra § III.b.2 (discussing a criminal law hypothetical on these facts).

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subordinates.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Liability, however, is not
premised upon a theory of respondeat superior, but upon “a recognition that supervisory
indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the
constitutional injuries they inflict on those committed to their care.” Slakan v. Porter, 737 F.2d
368, 372–73 (4th Cir. 1984). In order to state a claim for supervisory liability under § 1983,
Plaintiffs must show:
(1) that the supervisor had actual or constructive knowledge that
his subordinate was engaged in conduct that posed “a pervasive
and unreasonable risk” of constitutional injury to citizens like the
plaintiff; (2) that the supervisor’s response to that knowledge was
so inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices,”; and (3) that there
was an “affirmative causal link” between the supervisor’s inaction
and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994).
To establish the first element—knowledge—a plaintiff must show “(1) the supervisor’s
knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive
and unreasonable risk of constitutional injury to the plaintiff.” Shaw, 13 F.3d at 799. In turn, in
order to establish a “pervasive” or “unreasonable” risk of harm, a plaintiff must present
“evidence that the conduct is widespread, or at least has been used on several different occasions
and the conduct engaged in by the subordinate poses an unreasonable risk of harm of
constitutional injury.”

Id.

To establish the second element—“deliberate indifference”—a

plaintiff must show “a supervisor’s ‘continued inaction in the face of documented widespread
abuses.’” Id. (quoting Slakan, 737 F.2d at 373). The Fourth Circuit has counseled that this is a
“heavy burden:”
Ordinarily, [a plaintiff] cannot satisfy his burden of proof by
pointing to a single incident or isolated incidents, for a supervisor
cannot be expected to promulgate rules and procedures covering
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every conceivable occurrence within the area of his
responsibilities. Nor can he reasonably be expected to guard
against the deliberate criminal acts of his properly trained
employees when he has no basis upon which to anticipate the
misconduct. A supervisor’s continued inaction in the face of
documented widespread abuses, however, provides an independent
basis for finding he either was deliberately indifferent or
acquiesced in the constitutionally offensive conduct of his
subordinates.
Slakan, 737 F.2d at 373 (internal citations omitted).

The third element—causation—is

established “when the plaintiff demonstrates an ‘affirmative causal link’ between the
supervisor’s inaction and the harm suffered by the plaintiff.” Shaw, 13 F.3d at 799 (quoting
Slakan, 737 F.2d at 376). “[T]he causal link may be supplied by tort principle that holds a person
liable for the natural consequences of his actions.” Wellington v. Daniels, 717 F.2d 932, 936
(4th Cir.1983).
Despite a very questionable chain of events, Smith and Coleman are entitled to summary
judgment on this count. Plaintiffs have failed to offer the necessary evidence of a “pervasive
risk” or “deliberate indifference,” because they have failed to offer evidence that any such
conduct has ever occurred before. If this is the first time such abuses have occurred, Plaintiffs
recourse is their claims under Counts I and II. Due to a lack of evidence to support this claim,
Plaintiffs’ claim of supervisory liability under § 1983 must fail.
4. Count V: Trespass against Smith
Sheriff Smith is not entitled to summary judgment on the claim of trespass. Again, a jury
must determine who altered the Commonwealth Attorney’s advice and permitted the officers to
enter the property without the necessary legal justification. If it was Smith, then he may be liable
for the foreseeable trespass committed by the deputies. The jury will decide.

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5. Count VI: Conversion against Smith
The claim of conversion cannot lie against Sheriff Smith. The record is clear that Smith
did not opine on what to do with any personal property found on the premises, and no one sought
his guidance or permission before dispossession Plaintiffs’ of their belongings. Because Smith
was not involved in the conversion or the decision-making process leading up to the conversion,
he is entitled to summary judgment on Count VI.
6. Count VIII and IX: Violation of the Fourth and Fourteenth Amendments
against Sheriff Smith in his official capacity
Turning to Counts VIII and IX, the claims against Smith in his official capacity, those
claims are barred by the Eleventh Amendment.
Although the language of the Eleventh Amendment expressly refers to suits by citizens of
another state, the United States Supreme Court “‘has drawn on principles of sovereign immunity
to construe the Amendment to establish that an unconsenting State is immune from suits brought
in federal court by her own citizens as well as by citizens of another state.’” Lee-Thomas v.
Prince George’s Cnty. Pub. Sch., 666 F.3d 244, 248 (4th Cir. 2012) (quoting Port Auth. TransHudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)). As such, the “ultimate guarantee of the
Eleventh Amendment is that non-consenting states may not be sued by private individuals in
federal court.” Bd. of Trustees of Univ. Ala. v. Garrett, 531 U.S. 356, 363 (2001); see also Fed.
Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002) (quoting Puerto Rico
Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)) (“[T]he
doctrine’s central purpose is to ‘accord the States the respect owed them as joint sovereigns.’”).
The Eleventh Amendment has also been interpreted to extend immunity to “‘state agents and
state instrumentalities.’” Lee-Thomas, 666 F.3d at 248 (quoting Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 429 (1997)); see also Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219
- 27 -

(4th Cir. 2001). As Sheriff, Smith is considered an arm of the state entitled to the protections
afforded by the Eleventh Amendment. See Blankenship v. Warren Co., 918 F. Supp. 970, 974
n.4 (W.D. Va. 1996) (“The Virginia Constitution creates five state officers which are charged
with performing quintessential functions of state government: Commonwealth’s Attorney,
Treasurer, Commissioner of Revenue, Sheriff, and Clerk of the Court . . . [T]hese officers are . . .
state actors and . . . are entitled to immunity pursuant to the Eleventh Amendment.”).
The Eleventh Amendment’s bar to suit, however, is not absolute. There are three
recognized exceptions. First, Congress may abrogate state sovereign immunity. See Garrett,
531 U.S. at 363 (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 79 (2000)). Second, a state
can waive its Eleventh Amendment immunity. See Lapides v. Bd. of Regents of Univ. Sys. of
Ga., 535 U.S. 613, 618 (2002). Third, a plaintiff can seek relief under the principles set forth in
Ex Parte Young. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (citing Ex Parte
Young, 209 U.S. 123 (1908)).
It is clear from the record, however, that none of the exceptions to the Eleventh
Amendment’s protections apply. Congress has not abrogated the states’ immunity for suits
under § 1983, see Quern v. Jordan, 440 U.S. 332, 338 (1979), Plaintiffs make no argument or
showing that Virginia has waived its immunity, cf. Jacobs v. College of William & Mary, 495 F.
Supp. 183, 190 (E.D. Va. 1980), and Plaintiffs are not seeking the relief contemplated in Ex
Parte Young. Therefore, Smith is entitled to summary judgment on Counts VIII and IX.
IV.

CONCLUSION
The facts of this case confirm why law enforcement officers should not blindly accept

what a stranger tells them. Vickie Payne’s story to Sheriff Smith, while correct, omitted vital
details. Sheriff Smith and Commonwealth Attorney Vipperman should have done more research

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before taking action. (See, e.g., Hubbard Dep. 49:10–16.) Despite this, Vipperman’s advice was
technically correct, although obviously misguided. Because her advice was legally sound and
she had no other role is this fiasco, her Motion to Dismiss will be granted.
The deputies who went into the home on October 20—Deputies Hubbard, Martin, and
Mikels—asked the right question of their superior; they were unfortunately given the wrong
answer. But their reliance on that answer was not objectively unreasonable. Accordingly, they
are entitled to summary judgment on those counts challenging their entry onto the property and
into the home. Likewise, when they encountered James and Kyle Epperson in the home, their
actions were objectively reasonably under these circumstances. They are entitled to summary
judgment on those counts challenging the search of the property and the seizures of James and
Kyle Epperson.
The deputies’ decision to dole out Plaintiffs’ personal property, however, was plainly
wrong and violated both common law (conversion) and the Constitution (Fifth and Fourteenth
Amendments).

Under the applicable law, Plaintiffs cannot recover for the constitutional

violation because an adequate state remedy exists, so their conversion claim will proceed to trial.
Either Sheriff Smith or Lt. Coleman altered the advice given by the Commonwealth
Attorney and instructed deputies under their command to enter a home in derogation of
Plaintiffs’ rights. A jury must determine who made that fateful decision and why. Summary
judgment is not appropriate at this stage. I am also unable to conclude, at this stage, that Smith
and Coleman are entitled to judgment as a matter of law on Plaintiffs’ Fourth Amendment claim.
Plaintiffs have failed to carry their burden to show Smith and Coleman are liable under a
supervisory liability theory of § 1983, so summary judgment will be granted to Smith and

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Coleman on Count III. Plaintiffs have also failed to connect Smith to the decision to take
Plaintiffs’ personal property, and so he is entitled to summary judgment on the conversion claim.
Finally, the Eleventh Amendment bars suits against Sheriff Smith in his official capacity.
He is entitled to summary judgment on Counts VIII and IX.
The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to all counsel of record.
Entered this 31st day of May, 2018.

s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE

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