Pasco v. Zimmerman et al

Filing 28

REPLY to Response to Motion re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. filed by Shenandoah County Library.

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

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

HANK ZIMMERMAN, et als..
Defendant.

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
BY DEFENDANT SHENANDOAH COUNTY LIBRARY
Defendant Shenandoah County Library ("Library"), by counsel, pursuant to the
Scheduling Order (Docket #18), states as follows for hs brief in Reply to the Memorandum
(Docket #24) filed by the plaintiff in opposition to the Motion to Dismiss (Docket #10).
I.

42 U.S.C. § 1983 Claim Fails to State an Unconstitutional Policy or Custom

In his Memorandum in Opposition to the Motion to Dismiss, the plaintiff contends that
Defendant Library's argument relies on 2 essential factors: 1) that Defendant Moore acted for his
own private reasons; and that 2) Defendant Library is immune. Docket #24, p. 1. This conclusion
is erroneous, as the plaintiff misconstrues and misunderstands the law and Defendant Library's
argument.
The law is clear that a local governmental entity, such as a county (or a county library in
this case), may only be held liable under 42 U.S.C. § 1983 when the local government's policy
or custom, "whether made by hs lawmakers or by those who edicts or acts may fairly be said to
represent official policy," causes the injury. Monell v. New York City Dept. of Social Services,
436 U.S. 658, 694 (1978); see also Spell v. McDaniel, 824 F.2d 1380, 1385 (4"^ Ch. 1987)
(municipalities cannot be held liable under a theory of respondeat superior for the constitutional
violations of their employees acting within the scope of their employment). The Supreme Court
has held that an unconstitutional governmental policy could be inferred from a single decision by
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the officials responsible for making policy in that area ofthe government's business. Pembaur v.
City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298 (1986) ("No one has ever doubted,
for instance, that a municipality may be liable under § 1983 for a single decision by hs properly
constituted legislative body - whether or not that body had taken similar action in the past or
intended to do so in the future - because even a single decision by such a body unquestionably
constitutes an act of official government policy.") (ching Owen v. City of Independence, 445
U.S. 622, 633, 655, n. 39 (1980) (City CouncU passed resolution firing plaintiff without a pretermination hearing); and Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Council
canceled license permitting concert because of dispute over content of performance). "At the
other end ofthe spectrum, [the Supreme Court has] held that an unjustified shooting by a police
officer cannot, without more, be thought to result from official policy." City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 108 S. Ct. 915 (1988) (citing Oklahoma City v. Tuttle, All U.S.
808, 821, 823-24, 105 S. Ct. 2427, 2436 (1985) (plurality opinion) ("Proof of a single incident of
unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing, unconstitutional municipal policy,
which policy can be attributed to a municipal policymaker."). In Praprotnik, the Supreme Court
expanded on these certain circumstances, holding that a municipality may be held liable under §
1983 for a single constitutional violation: 1) for acts that the municipality "'has officially
sanctioned or ordered'"; and 2) by municipal officials who have '"final policymaking
authority'"; 3) which is a question of state law; and 4) when the '"challenged action was taken
pursuant to a policy adopted by the official or officials responsible under state law for making
pohcy in that area ofthe city's business.'" Praprotnik, 485 at 123, 108 S. Ct. at 924 (quoting
Pembaur, 475 U.S. at 480, 482-83 & n. 12, 106 S. Ct. at 1298, 1299-1300 & n. 12) (emphasis in
original) (citations omitted).
Here, the plaintiff does not meet the Supreme Court's requirements of municipal liability
for a single constitutional violation. The Complaint does not allege an unconstitutional policy or
custom by Defendant Library There is a complete lack of factual support of any custom or usage
or policy by Defendant Library to retaliate against employees who protect their property or
enforce their legal rights. Rather, the challenged unconstitutional action was done by Defendant
Moore. It is undisputed that the acts allegedly committed by Defendant Moore were not ordered
by Defendant Library.

Nor do the facts alleged support that Defendant Library officially
2

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sanctioned Defendant Moore's acts. More importantly, the challenged action was not taken
pursuant to any policy adopted by Defendant Library.

Defendant Moore did not act in

furtherance of, or because of, or pursuant to any policy or custom of the Library. The facts
alleged compare more closely with Tuttle, supra. In Tuttle, the plaintiff proved only a single
instance of unconstitutional action by a non-policymaking employee ofthe city. Tuttle, All U.S.
at 816-17. She argued that the city had caused the constitutional deprivation by adopting a
"policy" of inadequate training. Id. at 821. The Supreme Court rejected this argument and
reversed the judgment against the city, stating that the trial court's instruction to the jury that it
could infer from a single, unusually excessive use of force that h was attributable to grossly
inadequate training, and that the municipality could be held liable on this basis was error. Id. at
821-823. Both the plurality and the opinion concurring in the judgment found the plaintiffs
submission insufficient because she failed to establish that the unconstitutional act was taken
pursuant to a municipal policy. Id, at 822-824 (plurality opinion), 829-830 (BRENNAN, J.,
concurring in part and concurring in judgment).
Thus, even assuming that Defendant Library's decision to terminate the plaintiff was a
"policy" or "custom" within the meaning of Monell, the plaintiff still has not alleged sufficient
and proper facts to constitute a violation under § 1983. The key element that the plaintiff fails to
recognize is that the policy or custom must cause the alleged injury. The plaintiffs alleged
injuries were caused by Defendant Moore, not by an unconstitutional policy or custom or act by
Defendant Library. See Tuttle, All at 821 ("The foregoing discussion ofthe origins of MonelVs
'policy or custom' requirement should make it clear that, at least, that requirement was intended
to prevent the imposition of municipal liability under circumstances where no wrong could be
ascribed to municipal decisionmakers."). The cases cited by the plaintiff in his Memorandum in
Opposition are inapposite to the facts of this case. Docket #24, pp. 6-7. Scearce v. Halifax
County, 1995 U.S. Dist. LEXIS 9216 (W.D. Va. 1995) and Hall v. Marion School Dist No. 2, 31
F.3d 183 (4* Cir. 1994) are distinguishable from this case on this critical fact. Both ofthe
plaintiffs in Scearce and Hall alleged that they were terminated in violation of their right of free
speech protected by the First Amendment. As such, the respective decisions to terminate the
plaintiffs may give rise to a § 1983 claim as the alleged basis for the termination hself
constituted unconstitutional conduct by the municipalities. Here, on the other hand, the facts
alleged do not support that Defendant Library's decision to terminate him was based on a
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constitutionally protected right or privilege. Rather, the plaintiff alleges that his subordinate
employee (Defendant Moore) violated his Fourth and Fifth Amendment rights against illegal
search and seizure, that he and Defendant Moore each allege that the other assauh and battered
the other, and then he was fired by Defendant Library after he fired Defendant Moore for
reporting him to the police for assauh and battery. The plaintiff does not allege, like in the cases
ched by the plaintiff, that he was terminated for exercising a federally protected right. Getting
into a physical altercation with a subordinate is not a federally protected right. The plaintiffs
alleged injuries resuhed from the alleged Fourth and Fifth Amendment violations, which were
not caused by the termination, as required by the Supreme Court. In fact, the plaintiffs injuries
occurred before Defendant Library' decision to terminate him. The plaintiff puts the cart before
the horse and misapphes the law. Hughes v. Halifax County School Board, 855 F.2d 183, 186
(4* Cir. 1987) ("To establish municipal liability under § 1983, the plaintiff must be able to show
that the execution of a municipal policy or custom inflicts an injury.").
Here, no wrong can be ascribed to any action or decision of Defendant Library. The
plaintiffs legal conclusion that his termination by Defendant Library was "an additional property
deprivation attributable to Defendant Board" of Trustees ' is not supported by the facts or the
law. Defendant Library 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* Ch. 1990) (chation omitted). In fact, in order to have a property interest in
continued employment, the plaintiff must have more than "an abstract need or deshe for h, and
more than a umlateral expectation of h." James v. Powell, 765 F. Supp. 314 (E.D. Va. 1991)
(discussing protected property interests in benefits such as continued employment or promotion).
Rather, the plaintiff must have a "legitimate claim of entitiement" to the benefit, "created by
statute or institutional regulation." Id. (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.
Ct. 2701, 2709 (1972). 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 these
requirements. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) ("Threadbare

Docket #24, p,6.
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rechals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.").
Here, the plaintiff does not allege any facts detailing any state law rules, or
understandings, or statute, or regulation, or even policy to support his conclusory statements.
The plaintiff does not allege that he had an employment contract with Defendant Library. The
plaintiff does not allege that he was employed for a specific term. The plaintiff does not allege
that Defendant Library had an internal policy of only terminating him (or any employee) for
good cause. Long term employment does not create an expectation of continued employment.
See McBride v. City of Roanoke Redevelopment and Housing Authority, 871 F. Supp. 885, 890
(W.D. Va. 1994) (Termination ofthe plaintiff, who was Executive Dhector of Authority for 28
years, did not deprive him of a protected property interest.)

As such, the only reasonable

inference is that the plaintiff served at the will and pleasure of Defendant Library, and thus, can
have no legitimate expectation of continued employment. Skeeter v. City of Norfolk, 681 F.
Supp. 1149, 1155 (E.D. Va. 1987) ("Under Virginia law, 'at whl' employment creates no
property interest."), aff'd, 898 F.2d 147 (4* Ch. 1990). Thus, the plaintiffs assertion that his
discharge without just cause is an additional property deprivation attributable to Defendant
Library ^ is not supported by the facts or the law.
Likewise, the plaintiffs sweeping generalization that Defendant Library's liability is
supported by "the ratification and adoption of Moore's conduct, and the use of that conduct and
Pasco's response to h against Pasco"^ is unwarranted. The Complaint is devoid of any actual
facts supporting ratification of unconstitutional conduct. The Complaint states that Defendant
Moore alleged that he was assauhed and battered by the plaintiff Docket #1, t 25. The plaintiff
states that he "justifiably" attempted to retrieve the computer hard-drives from Defendant Moore.
Docket #1,123; Docket #24, p. 3. The plaintiff alleges that he was injured when he attempted to
retiieve his personal property. Docket #1,126. 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, If 18, 31. The plaintiff fired Defendant Moore after
Defendant Moore accused the plaintiff of committing assauh and battery against him. Docket #1,

^ Docket #24, p. 6.
'Id
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I I 30, 31. The reasonable inference is that the plaintiff did in fact assault and batter Defendant
Moore when he attempted to retrieve his computer hard drives. The plaintiffs assertion that
Defendant Library used the plaintiffs response to Defendant Moore's actions against him does
not equate to ratification of Defendant Moore's conduct, but demonstrates that the plaintiff was
terminated based on his own actions and role in the incident. The incident between the plaintiff
and Defendant Moore occurred on October 1, 2010, and the plaintiff was terminated 12 days
later on October 12, 2010. Docket #1, | t 15, 25. The reasonable inference is that Defendant
Library 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
ahercation with a subordinate and then fires that subordinate after the subordinate accuses his
supervisor of assauh and battery should be terminated.

Accordingly, Defendant Library

terminated the plaintiff
In discussing whether a School Board ratified a subordinate's decision, the Fourth
Circuh stated that a plaintiff must show that the School Board "not only ratified the decision but
the basis for it and thus 'made a calculated choice to follow the course of action deemed
unconstitutional.'" Green v. Fairfax County School Board, 832 F. Supp. 1032, 1043 (E.D. Va.
1993) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 726 (4* Ch. 1990) (In denying
municipal liability based on one single act, the Fourth Circuh dismissed the § 1983 action against
the City, as the plaintiff ched nothing more than unsupported allegations that the City adhered to
a policy condoning illegal searches and seizures); and (citing Williams v. Ellington, 936 F.2d
881, 884-85 (6* Ch. 1991) (single isolated decision by school board to ratify warrantiess strip
search made pursuant to lawful policy was insufficient to establish § 1983 liability)). The same
reasoning is applicable here. The plaintiff has not stated any facts to support that Defendant
Library decision to terminate him was based on any unconstitutional conduct. Rather, taken as a
whole, the Complaint shows that the plaintiffs own actions were the basis for his termination
and no actions taken by Defendant Library violated any federally protected right.
For these reasons, it is clear that the Complaint does not allege any facts to support a 42
U.S.C. § 1983 against Defendant Library and the lawsmt against Defendant Library should be
dismissed.
II.

Defendant Library Entitled to Sovereign Immunity on Tort Claims

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The plaintiff misconstrues Defendant Library's argument and the case law regarding
sovereign immunity. The initial critical factor in sovereign immunity is who the defendant is,
the Commonwealth or an employee of the Commonwealth. The cases cited by the plaintiff all
deal with employees of the Commonwealth'*, who only enjoy immunity under certain
circumstances.

On the other hand, under the doctrine of sovereign immunity, the

Commonwealth and its political subdivisions, such as counties, are immune from liability for
damages and lawsuits to restrain governmental action or to compel such action. Gray v. Virginia
Sec'y ofTransp., 276 Va. 93, 101-102 (2008) ('"ft is an estabhshed principle of sovereignty, in
all civilized nations, that a sovereign State cannot be sued in its own courts . . . without hs
consent and permission.'") (quoting Board of Public Works v. Gannt, 16 Va. 455, 461 (1882));
and Afzall v. Commonwealth, 273 Va. 226, 231 (2007) ("Sovereign immunity may also bar a
declaratory judgment proceeding against the Commonwealth."). As such, the Commonwealth
and counties are immune from tort liability for the acts and omissions of its agents and
employees, unless an express statutory or constitutional provision waives that immunity. Rector
& Visitors ofthe Univ. ofVa. v. Carter, 267 Va, 242, 244-46 (2004) (Court held that given the
Virginia Tort Claims Act lack of an express waiver of the common law sovereign immunity
afforded the Commonwealth's agencies, UVA retains its sovereign immunity from the medical
malpractice claim brought by plaintiff); Mann v. County Board of Arlington County, 199 Va.
169, 174-75 (1957) ("Arlington County being a political subdivision ofthe State, hs freedom
from liability for this tort [negligent construction, maintenance and operation ofthe sidewalk and
adjoining parking lot] may be likened to the immunity that is inherent in the State.").
Similarly, the plaintiffs rehance on Lentz v. Morris, 236 Va. 78 (1988) is misplaced and
his citation is incorrect. Again, the defendant at issue in Lentz was a high school teacher, an
employee of an immune governmental entity. Lentz, 236 Va. at 82. In Lentz, the Supreme Court
of Virginia discussed its holding in Messina v. Burden, 228 Va. 301 (1984), which distinguished
the county, which shares the immunity of the State, with an employee of a county, who is
entitled to the benefits of sovereign immunity where his activities clearly involve the exercise of
judgment and discretion. Id. After applying the test developed in James v. Jane, 221 Va, 43

'' Shvern v. Derosiers, 2000 U,S, App, LEXIS 29688 (4* Cir. 2000) (George Mason University employees); Tomlln
V. McKenzie, 251 Va, 478 (1996) (social worker seeking immunity under Va, Code § 63,1-248,3); Fox v. Deese, 234
Va, 412 (1987) (City of Richmond employees); Elder v. Holland, 208 Va, 15 (1967) (state police captain); and
Coppage V. Mann, 906 F, Supp, 1025 (E,D, Va, 1995) (state prison employees),
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(1980), the Vhginia Supreme Court determined that the high school teacher was immune from
suh. Id. Lentz does not involve a county. Nor does Lentz stand for the proposhion that sovereign
immunity does not protect counties from liability for "gross negligence or intentional
misconduct." Docket #24, p. 8. In Lentz, the Virginia Supreme Court simply states that the facts
alleged against the high school teacher do not support a charge of either gross negligence or
intentional misconduct, which has no application or persuasion in this case. Id.
In the case at bar, there is no express statutory or constitutional provision waiving
sovereign immunity of Defendant Library. Accordingly, Defendant Library is immune from tort
liability for the acts and omissions of hs employee. Defendant Moore.
For these reasons. Defendant Library respectfully requests that the Court grant hs Motion
to Dismiss.
SHENANDOAH COUNTY LIBRARY
By Counsel

LITTEN & SIPE L.L.P.
By : /%,S^^y^

^'Ity^'C/iio^^^i^

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.

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CERTIFICATE
I certify that on the 26"" day of January, 2012, I 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,

Virginia

22030,

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

//}ttA^.^A iu^c/uA-^^
Counsel for Defendants Hank Zimmerman, Board
of Trustees ofthe Shenandoah County Library,
and Shenandoah County Library.

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