Pasco v. Zimmerman et al

Filing 29

REPLY to Response to Motion re 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. filed by Board of Trustees of the Shenandoah County Library.

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..
Defendant.

REPLY MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS BY DEFENDANT BOARD OF TRUSTEES
Defendant Board of Trustees of the Shenandoah County Library ("Board of Trustees"),
by counsel, pursuant to the Scheduling Order (Docket #18), states as follows for hs brief in
Reply to the Memorandum (Docket #23) filed by the plaintiff in opposhion to the Motion to
Dismiss (Docket #12).
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 Board of Trustees' argument relies on 2 essential factors: 1) that Defendant Moore
acted for his own private reasons; and that 2) Defendant Board of Trustees is immune. Docket
#23, p.l. This conclusion is erroneous, as the plaintiff misconstrues and misunderstands the law
and Defendant Board of Trustees' 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 pohcy
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,
A36 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
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has held that an unconstitutional governmental policy could be inferred from a single decision by
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 properiy
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.") (citing Owen v. City of Independence, AAS
U.S. 622, 633, 655, n. 39 (1980) (City Council passed resolution firing plaintiff without a pretermination hearing); and Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Counch
canceled license permitting concert because of dispute over content of performance). "At the
other end of the spectrum, [the Supreme Court has] held that an unjustified shooting by a police
officer cannot, without more, be thought to resuh 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
policy 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) (chations 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 Board of Trustees. There is a complete lack of factual support of any
custom or usage or policy by Defendant Board of Trustees 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
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Moore were not ordered by Defendant Board of Trustees. Nor do the facts alleged support that
Defendant Board of Trustees officially sanctioned Defendant Moore's acts. More importantly,
the challenged action was not taken pursuant to any policy adopted by Defendant Board of
Trustees. 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, 471 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 h 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 Board of Trustees' 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 Board of Trustees. See Tuttle, All at 821 ("The foregoing discussion
ofthe origins of MonelVs 'policy or custom' requirement should make h 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 inapposhe to the facts of this case. Docket #23,
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"" Ch. 1994) are distinguishable from this case on this
critical fact. Both of the 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 municipahties. Here, on the other
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hand, the facts alleged do not support that Defendant Board of Trustees' decision to terminate
him was based on a 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 assault
and battered the other, and then he was fired by Defendant Board of Trustees 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 ahercation 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 requhed by the Supreme Court. In fact,
the plaintiffs injuries occuiTed before Defendant Board of Trustees' decision to terminate him.
The plaintiff puts the cart before the horse and misapplies the law. Hughes v. Halifax County
School Board, 855 F.2d 183, 186 (4* Ch. 1987) ("To establish municipal liability under § 1983,
the plaintiff must be able to show that the execution of a municipal policy or custom infiicts an
injury.").
Here, no wrong can be ascribed to any action or decision of Defendant Board of Trustees.
The plaintiffs legal conclusion that his termination by Defendant Board of Trustees was "an
additional property deprivation attributable to Defendant Board" of Trustees ' is not supported
by the facts or the law. 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* Ch. 1990) (citation omitted). In
fact, in order to have a property interest in continued employment, the plaintiff must have more
than "an abstract need or desire for it, and more than a unilateral 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 "leghimate claim
of entitiement" to the benefit, "created by statute or institutional regulation." Id. (ching Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972).

The plaintiffs bare

conclusions that he held a leghimate expectation that he would not be terminated from his
Docket #23, p.6.
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employment absent just cause are insufficient to pass these requhements. Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949 (2009) ("Threadbare recitals 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 Board of
Trustees. The plaintiff does not allege that he was employed for a specific term. The plaintiff
does not allege that Defendant Board of Trustees 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 of the plaintiff, who was Executive
Director 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 Board of Trustees, 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 wiU' employment creates no property interest."), affd, 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 Board of Trustees^ is not supported by the facts or
the law.
Likewise, the plaintiffs sweeping generalization that Defendant Board of Trustees'
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 assaulted and battered by the plaintiff Docket #1, % 25.
The plaintiff states that he "justifiably" attempted to retrieve the computer hard-drives ftom
Defendant Moore. Docket # 1 , 1 23; Docket #23, p. 3. The plaintiff aUeges that he was injured
when he attempted to retrieve his personal property. Docket #1, If 26. The reasonable inference
being that the plaintiff instigated the physical altercation between him and Defendant Moore.
The plaintiff was Defendant Moore's supervisor, responsible for reprimanding and terminating

• Docket #23, p. 6.
'Id
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ah employees, including Defendant Moore. Docket #1, f 18, 31. The plaintiff fired Defendant
Moore after Defendant Moore accused the plaintiff of committing assault and battery against
him. Docket #1, | | 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 plaintiffs
assertion that Defendant Board of Trustees 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, Tff 15, 25.

The

reasonable inference is that Defendant Board of Trustees 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 assault and battery
should be terminated. Accordingly, Defendant Board of Trustees 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 Circuit 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* Cir. 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
Board of Trustees 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 Board of Trustees violated any federally
protected right.

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For these reasons, it is clear that the Complaint does not allege any facts to support a 42
U.S.C. § 1983 against Defendant Board of Trustees and the lawsuit against Defendant Board of
Trustees should be dismissed.
II.

Defendant Board of Trustees Entitled to Sovereign Immunity on Tort Claims

The plaintiff misconstrues Defendant Board of Trustees' 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 ofthe 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 ftom 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 established principle of sovereignty, in
all civilized nations, that a sovereign State cannot be sued in its OAvn courts . . . without its
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 hs 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, its 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

^ 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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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
(1980), the Virginia Supreme Court determined that the high school teacher was immune from
suit. Id. Lentz does not involve a county. Nor does Lentz stand for the proposition that sovereign
immunity does not protect counties from liability for "gross negligence or intentional
misconduct." Docket #23, 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 Board of Trustees. Accordingly, Defendant Board of Trustees
is immune from tort liability for the acts and omissions of its employee. Defendant Moore.
For these reasons. Defendant Board of Trustees respectfully requests that the Court grant
its Motion to Dismiss.
BOARD OF TRUSTEES OF THE
SHENANDOAH COUNTY LIBRARY
By Counsel

LITTEN & SIPE L.L.P.

By: JqyA^/( AAACA^^-^"--^
Melisa G. Michelsen
J. Jay Litten
Virginia State Bar Nos. 4000land 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, 2012,1 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, Virginia 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.

Counsel for Defendants Hank Zimmerman, Board
of Trustees ofthe Shenandoah County Library,
and Shenandoah County Library.

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