Pasco v. Zimmerman et al

Filing 21

Brief / Memorandum in Opposition re 4 MOTION to Dismiss, 5 Brief / Memorandum in Support Of Defendant Moore. filed by Robert L. Pasco.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
ROBERT L. PASCO,
Plaintiff,
v.
HANK ZIMMERMAN, et al.,
Defendant.

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CIVIL ACTION NO. 5:11cv00087-MFU

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT MOORE’S
MOTIONS TO DISMISS UNDER RULE 12(b)(6) and 12(b)(1)

The plaintiff Robert L. Pasco (“Pasco”), by counsel, and pursuant to Rules 12(b)(6) and
12(b)(1) of the Federal Rules of Civil Procedure, submits his Memorandum in Opposition to
Defendant Moore’s Motion to Dismiss, and shows the Court as follows:
I.

Introduction and Facts.
The defendant Moore asserts in his Motion to Dismiss that he did not engage in state action

or act under color of state law for purposes of liability under 42 U.S.C. § 1983, and that
accordingly, there are no federal claims against him. He then asserts that he is entitled to a
dismissal of all of the claims, since, with the dismissal of the federal claims, the court lacks subject
matter jurisdiction. Pasco opposes Moore’s Motion because he has adequately alleged that
Defendant Moore, as well as the other Defendants, engaged in state action or acted under color or
pretense of state law, and the Court has subject matter jurisdiction of the federal and the
supplemental state claims. The Complaint includes, among others, the following facts.
Pasco served as the Director of the Shenandoah County Library from January 1, 2002 until
he was terminated unlawfully from his job on October 12, 2010. Defendant Hank Zimmerman was

the Chairman of the Library’s Board of Directors. Zimmerman’s actions complained of in the
Complaint were taken in the course and scope of his position with the Defendant Board of Trustees,
with the Board of Trustees’ actual or apparent authority and/or with Board of Trustees’ knowledge
and acquiescence. Dallas Moore was employed by Defendant Board of Trustees as the technology
director of the Shenandoah County Library. Moore’s actions complained of in the Complaint were
taken in the course and scope of his position with the Defendant Board of Trustees. Complaint, ¶¶
5-8. The Defendant Shenandoah County Library is a public entity under the authority of Virginia
Code Ann. § 42.1-33, et seq., as amended. By Virginia statute, funding for the Library is by a
special levy and constitutes a separate fund. Id. Moreover, the Defendant Board is authorized by
Virginia statute to manage and control the operations of the Library, and further is authorized to
receive donations and bequests for the establishment and maintenance of the Library. Complaint ¶¶
9-10. Pasco was the Library Director for almost nine years, substantially increasing services to the
public. Pasco held a legitimate expectation that he would not be terminated from his employment
absent just cause. Id., ¶¶ 12-13.
Moore was a disciplinary problem at the Library in 2010. He had taken an unnatural interest
in another Library employee, Keith Brown, causing Brown to complain of Moore’s attention.
Moore also had performance deficiencies, including tardiness which had become a habit. Id., ¶¶ 1415. On the morning of October 1, 2010, Moore was late to work and Pasco needed information for
a monthly report. Pasco, who was the head personnel officer of the Library (Complaint, ¶ 31),
reprimanded Moore and engaged in other discussions with him in the performance of his duties.
Id., ¶ 15. A personnel dispute with Moore ensued involving Moore attempting to insinuate himself
into personnel matters involving Brown. Id., ¶ 16.

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Moore wanted Pasco fired from Pasco’s Director position, which made Pasco Moore’s
supervisor. Moore assaulted and battered Pasco later on the morning of October 1, 2010 in order
to seize two computer hard-drives from Pasco’s office. Id., ¶¶ 21; 16-20. One of the hard-drives
belonged to Pasco, and the other contained confidential data relating to employees. Id., ¶ 18.
Moore was going to take the computer hard drives to the Shenandoah County Administrator to
accomplish his plan of getting Pasco fired. Id., ¶ 21. He was going to use information he falsely
claimed was on the hard-drives to assist with his plan. Id. A reasonable inference is that Moore
purportedly had such information because of his position as technology director. Moore
informed Defendant Zimmerman of this plan to go to the County Administrator in order to get
Pasco fired using information he claimed was on the hard-drives. Id. Pasco let Moore know that
he was seizing Pasco’s property, and Pasco then attempted to retrieve his property and the
Library’s property from Moore. Id., ¶ 23. Instead of relinquishing the property, Moore threw
both hard-drives to the ground, shattering them and destroying Pasco’s hard-drive so that the
files on it were useless and irretrievable. Id., 24-27.
Moore also shared with Zimmerman that Moore was going to file a criminal assault and
battery charge against Pasco, but Zimmerman did not share this information with Pasco. Instead,
Zimmerman asked Pasco agree to try to mediate the situation between him and Moore. Pasco
agreed, until he was confronted the next day by a Sheriff’s deputy who advised Pasco of Moore’s
criminal complaint against him based on assault and battery. Id., ¶ 30. Because of Moore’s
behavior, Pasco’s concern that Moore may harm Pasco and others, and Moore’s false statements
to law enforcement, as well as to Zimmerman, Pasco terminated Moore’s employment in
accordance with his authority as the Library Director. Id., ¶¶ 30-31. Moore filed a grievance
with no content other than to seek reinstatement, but he did not appear on October 7, 2010, the
date scheduled, to present his position and accordingly Pasco denied the grievance as he was
authorized to do. Id., ¶¶ 32-33. Another version of Moore’s grievance was not shown to Pasco.
Id., ¶ 32.
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Even before Moore’s scheduled October 7, 2010 grievance hearing, Zimmerman obtained
commitments from other members of the Boart of Trustees to terminate Pasco’s employment,
with full knowledge that Moore had assaulted and battered Pasco and of the illegal seizure and
destruction of Pasco’s and the Library’s property. Id., ¶ 35. Zimmerman’s plan reached fruition
on October 7, 2010 when the Board met at the home of a member and voted to terminate Pasco
from his public employment. Id., ¶ 36. Moore was then reinstated to his job. The Defendants
Zimmerman, Board of Trustees and Shenandoah County Library adopted, ratified and
acquiesced in Defendant Moore’s illegal behavior as the acts of all Defendants. Id., ¶ 37.
The Complaint sets forth other facts which may be relevant to the Motion to Dismiss.
II.

Rule 12(b)(6) Standard
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2).
That Rule does not require “detailed factual allegations.” See, Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). Moreover, there is no heightened pleading requirement for §1983 claims such as
are brought in this Complaint. Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 166 (1993). In Leatherman Chief Justice Rehnquist, writing
for a unanimous Court, stated that the Fifth Circuit’s heightened-pleading requirement in local
government failure to train cases was “impossible to square” with the notice pleading standard of
Rule 8(a) of the Federal Rules of Civil Procedure.
The role of a 12(b)(6) motion is to test plausibility when determining whether a
plaintiff has stated a claim for which relief may be granted. Rule 12(b)(6) simply gives a
district judge a tool to screen out implausible cases. To survive a Rule 12(b)(6) motion, a
complaint “need only give the defendant fair notice of what the claim is and the grounds
upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010).
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The plausibility requirement is met where the facts in support of a pleading allow
the Court to reasonably infer that the Defendant is liable for the conduct of which the
plaintiff complains. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). That standard is not
a probability requirement, but merely asks something more than a mere possibility. See
also, Jacobsen v. Bank of Am., N.A., 2010 U.S. Dist. LEXIS 131760, **1-2 (W.D. Va.
2010)(Moon, J.).
Thus, Rule 12(b)(6) simply calls for enough allegations to raise a plausible claim and a
reasonable expectation that discovery will reveal evidence supporting the elements of the
claim. Speaker v. United States HHS CDC, 623 F.3d 1371, 1380 (11th Cir. 2010); see also,
Conrad v. Farmers and Merchants Bank, 762 F. Supp. 2d 843, 846, n. 5 (W.D. Va. 2011) (the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim of relief
that is plausible on its face.’”).
III.

Pasco Adequately Alleged Facts Establishing a Federal Claim Against Defendant
Moore Who Was Engaged in State Action or Acting Under Color or Pretense of
State Law

Congress “intended to give a broad remedy for violations of federally protected civil
rights” when it enacted 42 U.S.C. § 1983. Monell v. New York City Dept. of Soc. Serv., 436 U.S.
658, 685 (1978). “If an individual is possessed with state authority and purports to act under that
authority, his action is state action. It is irrelevant that he might have taken the same action had
he acted in a purely private capacity or that the particular action which he took was not
authorized by state law.” Griffin v. Maryland, 378 U.S. 130, 135 (1964). In fact, a defendant
acts under color of law for purposes of 42 U.S.C. § 1983 when he abuses the position given to
him by the governmental entity. United States v. Classic, 313 U.S. 299 (1941).

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“[S]tate employment is generally sufficient to render the defendant a state actor. . .”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 935-936 n. 18 (1982). For purposes of Defendant
Moore’s motion to dismiss, then, the allegation of Defendant Moore’s public employment is
sufficient to establish that his acts are those of the public entity and under color or pretense of
state law.
While it is true, as Defendant Moore notes, that § 1983 excludes merely private conduct
(citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)), the conduct alleged in the
case at bar is not “merely private.” Moreover, there is no simple line drawn between the state
and private conduct. See Brentwood Acad. V. Tennessee Secondary Sch. Athletics Assn., 531
U.S. 288, 295 (2001). The Fourth Circuit has addressed the issue of private versus state action
for purposes of § 1983 liability in Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), where it
reversed the grant of summary judgment by the District Court on the issue of whether the
defendants had acted under color of state law. The Court stated:
Section 1983 therefore includes within its scope apparently private actions which
have a "sufficiently close nexus" with the State to be "fairly treated as that of the
State itself." Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477,
95 S. Ct. 449 (1974). "There is no specific formula for defining state action"
under this standard. Hicks v. Southern Maryland Health Sys. Agency, 737 F.2d
399, 402 n.3 (4th Cir. 1984) (quoting Howerton v. Gabica, 708 F.2d 380, 383 (9th
Cir. 1983)). Rather, the question of what is fairly attributable to the State "is a
matter of normative judgment, and the criteria lack rigid simplicity." Brentwood
Academy, 531 U.S. at 295.

Id. at 523. In Rossignol, the Court found acts of sheriff’s deputies to be state action when, while
off duty, wearing plainclothes and driving their personal vehicles, they bought up all of a
publishing company’s newspapers in an attempt to suppress criticism of the sheriff and other
governmental officials. Id. The Court looked to the totality of the circumstances and noted that
the defendants’ motivation was to retaliate against those who questioned their fitness for public
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office and the conduct of their official duties. The following quote from Rossignol underscores
its applicability to the case at bar.
Ultimately, defendants were driven by a desire to retaliate against Rossignol’s
past criticism of their fitness for office and to censor future criticism along the
same lines. This link between the seizure’s purpose and defendants’ official roles
helps demonstrate that defendants’ actions bore a “sufficiently close nexus” with
the States to be “fairly treated as that of the State itself.” Jackson v. Metro.
Edison Co., 419 U.S. at 351.
Rossignol v. Voorhaar, 316 F.3d at 525. In this case, the link is direct between Defendant
Moore’s purpose in the unlawful seizure (having Pasco terminated, which was communicated
directly by Moore to Zimmerman, and sanctioned by Zimmerman and ultimately the other
Defendants), and the Defendants’ official roles. In Rossignol, the Fourth Circuit also noted other
matters that “reinforced” its conviction that defendants acted under color of state law, including
the fact that the Sheriff sanctioned the off-duty deputies’ conduct in seizing the newspapers.
This is exactly what the other defendants, including Zimmerman, the Board of Trustees and the
Library, did in the case before this court. Through their actions, they gave “significant
encouragement” to Defendant Moore, and adopted and ratified his illegal conduct as their own,
knowing that he had assaulted and battered Pasco, and had seized and destroyed Pasco’s property
and damaged the Library’s property. Complaint at ¶ 35. See Mentavlos v. Anderson, 249 F.3d
301, 311 (4th Cir. 2001). The adoption and ratification of Moore’s conduct is clear from his
reinstatement and the termination of Pasco’s employment.
Defendant Moore’s conduct occurred at work and during the regular work-day. The
initial dispute related directly to the performance of Defendant Moore’s work as the Library’s
information technology director. His public employment was involved directly. He further was
engaged in conduct relating to directly to Pasco’s employment. All of the conduct surrounded
and related to the public employment of both men and to the operation of the Library. Moreover,
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the information Moore purportedly sought and intended on using against Pasco through the
seizure of the hard-drives was information Zimmerman and the Board of Trustees reasonably
would have expected Moore to have known given his position as technology director. Since
Pasco had a legitimate expectation that he would not be terminated from his job absent just
cause, but he was terminated without just cause nonetheless, it is reasonable to infer that the
Defendants Zimmerman, Board and Library adopted Defendant Moore’s conduct as their own,
and ratified it.
Additionally, Pasco was authorized to make personnel decisions and to respond to
grievances in relation to Moore’s employment. He did so. None of the allegations of the
Complaint support the Defendant Moore’s contention that, as a matter of law, Moore’s conduct
in seizing Pasco’s property in violation of the Fourth, Fifth and Fourteenth Amendments was
merely private. In another context, the Fourth Circuit has recognized state action even in a
situation in which a law enforcement officer acted after hours, out of uniform and driving his
own vehicle in Revene v. Charles County Com’rs., 882 F.2d 870 (4th Cir. 1989).
The Defendant Moore cites Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)
for the proposition that “acts committed by a police officer . . . while on duty and in uniform are
not under color of state law unless they are in some way ‘related to the performance of police
duties.’” First, the conduct of which Pasco complains related directly to the performance of
Defendant Moore’s duties. Moore simply misused his authority, and as noted above, the
Supreme Court has held such misuse of authority does not invalidate the state action. See Griffin
v. Maryland, 378 U.S. 130 (1964).
Second, Johnson v. Hackett, 284 F. Supp. 933 (E.D. Pa. 1968) does not support the
position taken by Defendant Moore because the conduct involved in that case was clearly

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private. The defendant officers offered to fight a group of black individuals, and stated that they
would return later that evening. The officers also used racially derogatory statements towards
the black individuals. The Johnson court understandably held that these acts were not “under
‘pretense’ of law.” The Johnson court went on to say, however, that “[i]f the officer was enabled
to do what he did because of the authority of his office, even if what he did constituted an abuse
of that authority, either by the excessiveness of his conduct or because the act was not actually,
although apparently, authorized, the act is under ‘color of law.’” Id. at 937.
Here, Moore intended to seize the computer hard-drives for the County based on what he
contended was contained on them. Compl. at ¶ 21. That was something he would be expected to
know in his capacity as technology director. Moore seized the hard-drives based upon his
pretense of authority to do so and thereby adversely affected Pasco’s employment. His
combination with Zimmerman about the situation also indicates that the conduct was under color
or pretense of state law. This conduct was adopted and ratified as the conduct of the other
Defendants. Plaintiff Pasco ended up being terminated, and Defendant Moore was reinstated to
his job because of it.
Finally, Defendant Moore argues that “[t]here is no allegation that Moore was literally or
figuratively “clothed in state power” at the time of his act.” The cases do not require this. For
example, the Supreme Court has stated that its cases have insisted that the conduct causing the
deprivation “be fairly attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982), which requires in part that the party charged with the deprivation must fairly be said to
be a state actor. “This may be because he is a state official, because he has acted together with or
has obtained significant aid from state officials, or because his conduct is otherwise chargeable
to the State.” Id. Defendant Moore fits all of these requirements. To the extent there is some

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additional requirement to be “clothed in state power,” the reasonable inferences from the
allegations of the complaint are sufficient, due to the other Defendants’ responses to their
knowledge of Defendant Moore’s conduct, and their subsequent adoption and ratification of such
conduct as their own through the termination of Pasco and reinstatement of Moore.
Because Pasco sufficiently alleges that Defendant Moore’s liability to Pasco under 42
U.S.C. § 1983 through state action or under color or pretense of state law, Defendant Moore’s
motion also should be denied insofar as it seeks dismissal of the supplemental state law claims
on the grounds of lack of subject matter jurisdiction.

CONCLUSION
Based on the foregoing, Plaintiff Robert L. Pasco respectfully requests that the court deny
the Defendant Moore’s Motion to Dismiss in its entirety.

ROBERT L. PASCO
By: s/Timothy E. Cupp
Timothy E. Cupp (VSB #23017)
Cupp & Cupp, P.C.
1951 Evelyn Byrd Avenue, Suite D
Harrisonburg, Virginia 22801
[e-mail]
[phone]
[phone] (facsimile)
Counsel for Plaintiff

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CERTIFICATE
I hereby certify that on January 17, 2012, I electronically filed the foregoing Plaintiff’s
Memorandum in Opposition to Defendant Moore’s Motions to Dismiss with the Clerk of the
Court using the CM/ECF system, which will send notification of such filing to the following
counsel for Defendants:
Julia B. Judkins (VSB No. 22597)
[e-mail]
Bancroft, McGavin, Horvath & Judkins, PC
3920 University Drive
Fairfax, Virginia 22030
[phone]
[phone] (fax)
Counsel for Defendant Moore

Melisa G. Michelsen (VSB No. 40001)
J. Jay Litten (VSB No. 24567)
Litten & Sipe, LLP
410 Neff Avenue
Harrisonburg, Virginia 22801
[phone]
[phone] (fax)
Counsel for Defendants Zimmerman, Board of Trustees and Library

s/Timothy E. Cupp

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