Pasco v. Zimmerman et al

Filing 27

REPLY to Response to Motion re 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. filed by Hank Zimmerman.

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division

ROBERT L. PASCO,
Plaintiff,
Civil Action No.: 5:11CV87
V.

HANK ZIMMERMAN, et als.
Defendants.

REPLY MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS BY DEFENDANT HANK ZIMMERMAN
Defendant Hanlc Zimmerman ("Zimmerman"), by counsel, pursuant to the Scheduling
Order (Docket #18), states as follows for his Brief in Reply to the Memorandum (Docket #25)
filed by the plaintiff in opposition to the Motion to Dismiss (Docket #8).
FACTS
In his Memorandum in Opposition, the plaintiff accuses Defendant Zimmerman of
ignoring the import of many ofthe facts alleged in the Complaint. Docket #25, p. 1. Defendant
Zimmerman is not ignoring any fact or reasonable inference in the Complaint.

Rather,

Defendant Zimmerman asserts that the Court should not accept the plaintiffs legal conclusions
based on the facts alleged in the Complaint. Additionally, Defendant Zimmerman submits that
the Court should not consider any facts added to the Memorandum in Opposition that were not
alleged in the Complaint.
Further, the Court should not allow the plaintiff to massage the facts alleged in the
Complaint in an attempt to change the inference or allegations. Citing T 21, the plaintiff states
f
that "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." Docket #25, p. 3.
However, the plaintiff conveniently omits a critical word from his recitation of the facts alleged.
In T 21 ofthe Complaint, the plaintiff actually states: "Defendant Moore later told Defendant
f
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Zimmerman that he was seizing the computer hard-drives in an effort to use information he
falsely claimed was on them against Plaintiff in an effort to get Plaintiff terminated." Docket #1,
p. 6 (emphasis added).
ARGUMENT
No S 1983 Claim Against Defendant Zimmerman Individually or Officially
A. Relief Sought in Official Capacity Claim Untenable
The plaintiff argues that Defendant Zimmerman should remain as a party in his official
capacity as he seeks injunctive and declaratory relief against Defendant Zimmerman. However,
any claim for injunctive or declaratory relief will not lie against Defendant Zimmerman, but
rather, against the real parties in interest. Defendants Board of Trustees and Library. Defendant
Library is a public entity established by the governing body of Shenandoah County pursuant to
Virginia Code § 42.1-33, et seq. Docket #1, If 9. Defendant Board of Trustees is also a public
entity appointed by the governing body of Shenandoah County pursuant to Virginia Code § 42.135. Docket #1, f 10. This action arises out ofthe termination ofthe plaintiff by Defendant Board
of Trustees.

Defendant Zimmerman was simply the Chairman of the Library's Board of

Trustees. Docket #1,1 7. The plaintiff makes repeated reference to Defendant Zimmerman and
the Board. See, e.g.. Docket 25, p.7. Defendant Zimmerman submits that these allegations are
nonsensical. Defendant Zimmerman is not the plaintiffs supervisor. There is no allegation that
Defendant Zimmerman is an employee of Defendant Library.' Defendant Board of Trustees has
the responsibility for the management and control of Defendant Library. Va. Code § 42.1-35.
Defendant Zimmerman has no independent authority or power. Defendant Zimmerman is not a
policymaker under statutory or case law and has no policymaking authority at all, let alone final
policymaking authority. City of St Louis v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 924
(1988).

Any injunctive and/or declaratory relief would be against Defendants Library and

Board of Trustees as a whole, not against one isolated member.
The plaintiffs attempts to negate the holding in Mainstream Loudoun v. Board of
Trustees of Loudoun County Library, 2 F. Supp. 2d 783, 791 (E.D. Va. 1998) is unfounded.
Rather, Mainstream Loudoun is dispositive in this case.

The facts are very similar.

In

Mainstream Loudoun, the plaintiffs, an association and 10 individuals, sued the Loudoun County
' Virginia Code § 42.1-35 states in pertinent part tliat members or trastees "shall be appointed by the governing
body, chosen from the citizens at large", and that "one board member or trustee may be a member of or an employee
ofthe local governing body."
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Library, the Board of Trustees ofthe Library, and 5 ofthe 9 Board of Trustee members, both in
personal and official capacities, alleging a 42 U.S.C. § 1983 action. Judge Brinkema, citing
Monell V. New York City Dept. of Social Services, 436 U.S. 658 (1978), dismissed the individual
Library Board Members, stating that "plaintiffs' smt against the Library Board itself, if
successful, will provide plaintiffs with full relief against enforcement of the Policy" at issue, and
that "plaintiffs' suit against the five Board members who voted to adopt the Policy is impractical
as a means to enjoin the Library Board from enforcing the Policy." Mainstream Loudoun, 2 F.
Supp. 2d at 790-791.
Likewise, here, enjoining Defendant Zimmerman is ineffective.

Under Virginia law.

Defendant Board of Trustees is the final policymaker with regard to the employment and
discharge ofthe plaintiff Va. Code § 42.1-35. Any prospective relief sought by the plaintiff
against Defendant Zimmerman cannot be expected to provide the plaintiff with complete relief
for any declaratory or eqmtable relief demanded. Instead, that relief, if appropriate at all, will be
found against Defendants Library and Board of Trustees. Therefore, all of the claims against
Defendant Zimmerman in his official capacity should be dismissed.
B. Personal Capacity Lawsuit against Defendant Zimmerman Should Also be Dismissed
The allegations against Defendant Zimmerman in his personal capacity also fail. The
Complaint makes clear that Defendant Zimmerman's actions were taken in his capacity as a
member of Defendant Board of Trustees. Docket #1,1| 7. The plaintiff accepts that Defendant
Zimmerman did not search or seize the plaintiffs personal property, and thus, could not have
violated the plaintiffs Fourth or Fifth Amendment rights. Docket #25, p. 7. However, the
plaintiff attempts to argue that Defendant Zimmerman "adopted Moore's actions as his own in
facilitating the further deprivation alleged and the taking of Pasco's property thi-ough termination
of this employment." Id. This allegation is not supported by the facts alleged, reasonable
inferences, or the law.
First, the facts do not support the legal conclusion that Defendant Zimmerman adopted
Defendant Moore's actions as his own. Other than the plaintiffs bare statement, there are no
facts to support that Defendant Zimmerman adopted Defendant Moore's actions as his own. The
Complaint states that Defendant Moore alleged that he was assaulted and battered by the
plaintiff Docket #1, ^ 25. The plaintiff states that he "justifiably" attempted to retrieve the
computer hard-drives from Defendant Moore. Docket #1,1 23; Docket #25, p. 3. The plaintiff
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alleges that he was injured when he attempted to retrieve his personal property. Docket #1, T 26.
f
The reasonable inference being that the plaintiff instigated the physical ahercation between him
and Defendant Moore.

The plaintiff was Defendant Moore's supervisor, responsible for

reprimanding and terminating all employees, including Defendant Moore. Docket #1, T 18, 31.
f
The plaintiff fired Defendant Moore after Defendant Moore accused the plaintiff of committing
assauh and battery against him. Docket #1, ^jt 30, 31. The reasonable inference is that the
plaintiff did in fact assauh and batter Defendant Moore when he attempted to retrieve his
computer hard drives. The incident between the plaintiff and Defendant Moore occun-ed on
October 1, 2010, and the plaintiff was terminated 12 days later on October 12, 2010. Docket #1,
fl 15, 25. The reasonable inference is that Defendant Zimmerman did not make any rash or
quick decisions, investigated this matter, spoke with the parties involved and any witnesses, and
ultimately determined that a supervisor who gets into a physical altercation with a subordinate
and then fires that subordinate should be terminated.

Accordingly, Defendant Zimmerman

voted, along with other members of Defendant Board of Trustees, to terminate the plaintiff
Defendant Zimmerman did not adopt any unlawful conduct by Defendant Moore as his own
actions, and there are no facts alleged in the Complaint to support such a conclusion. Moreover,
the plaintiffs attempt to co-opt Defendant Moore's conduct onto Defendant Zimmerman as his
own conttadicts the reqmrements for imposing personal liability in § 1983 cases. Courts have
repeatedly held that lawsmts against agents in theh personal capachies cannot proceed "absent
proof of some degree of personal involvement in the alleged deprivation of rights." McDonald v.
Dunning, 760 F. Supp 1156, 1160 (E.D. Va. 1991) (citations omitted). Here, there is simply no
action or participation by Defendant Zimmerman to justify personal liability under § 1983.
Second, the termination of the plaintiff by Defendant Board of Trustees did not deprive
the plaintiff of a protected property interest in violation of his right to procedural due process
under the Fourteenth Amendment.

In order for a plaintiff to possess a property interest in

continued employment, "state law rules and understandings must provide a 'sufficient
expectancy of continued employment.'" Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4* Cir.
1990) (citing Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077 (1976)). The plaintiffs
bare conclusions that he held a legitimate expectation that he would not be terminated from his
employment absent just cause are insufficient to pass the requirements of Ashcroft v. Iqbal, 556
U.S. 662 129 S. Ct. 1937, 1949 (2009) ("Threadbare recitals ofthe elements of a cause of action,
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supported by mere conclusory statements, do not suffice."). As such. Defendant Zimmerman
voting, or even encouraging other board members, to terminate the plaintiff did not violate any
ofthe plaintiffs rights or privileges protected by the Fourteenth Amendment.
Third, none of the acts by Defendant Zimmerman alleged in the Complaint constitute
federally unlawful or unconstitutional conduct. The alleged acts by Defendant Zimmerman
include:
•

Knowing that Defendant Moore had made or was about to make a complaint to law
enforcement against the plaintiff for assauh and battery, but did not advise the plaintiff of
that fact (Docket #1,128);

•

Asking the plaintiff not to file a criminal complaint against Defendant Moore (Docket #1,
129);

•

Asking the plaintiff to wah until he returned from a scheduled conference to make a
decision about Defendant Moore's employment (Id.);

•

Asking the plaintiff to resign (Docket #1, K 34);

•

Obtaining commitments from other members of the Board of Trustees to terminate
Pasco's employment, despite knowing that Defendant Moore had assaulted and battered
the plaintiff and that Defendant Moore had illegally seized and destioyed the plaintiffs
personal property as well as the Library's property (Docket #1,135).

None of these acts allegedly committed by Defendant Zimmerman deprived the plaintiff of a
protected federal right, privilege, or immunity under the Constitution, and the plaintiff fails to state a
claim upon which relief may be granted pursuant to 42 U.S.C. § 1983 against Defendant Zimmerman
personally.
For these reasons, h is clear that the Complaint does not allege any facts to support a 42
U.S.C. § 1983 against Defendant Zimmerman, and the lawsmt against Defendant Zimmerman, both
in his official and personal capacity, should be dismissed.
HANK ZIMMERMAN
By Counsel

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LiTTEN & S I P E

L.L.P

By: J/^Ao&^^yC 1>^'C4>/'^^
Melisa G. Michelsen
J. Jay Litten
Virginia State Bar Nos. 40001and 24567
410 Neff Avenue
Harrisonburg, Virginia 22801-3434
Telephone [phone]
Facsimile [phone]
Counsel for Defendants Hank Zimmerman, Board of Trustees ofthe
Shenandoah County Library, and Shenandoah County Library.

CERTIFICATE
I certify that on the 26* day of January, 2012,1 electronically filed the foregoing Reply
Memorandum in Support of Motion to Dismiss with the Clerk of the Court using the CM/ECF
system, which will send notification of such filing to Timothy E. Cupp, Esq., Cupp & Cupp,
P.C,

1951-D Evelyn Byrd Avenue, P.O. Box 589, Harrisonburg, Vhginia 22803,

[e-mail], Counsel for Plaintiff; and to Julia B. Judkins, Esq., Bancroft, McGavin,
Horvath,

&

Judkins,

P.C,

3920

University

Drive,

Fairfax,

Vhginia

22030,

[e-mail], Counsel for Defendant James Dallas Moore.

l4tl'^C'<'<L-^ A^' <^^u-^^
Counsel for Defendants Hank Zimmerman, Board
of Trustees ofthe Shenandoah County Library,
and Shenandoah County Library.

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