Pasco v. Zimmerman et al

Filing 9

Brief / Memorandum in Support 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.
Defendant.

BRIEF IN SUPPORT OF MOTION TO DISMISS
Defendant Hank Zimmerman ("Zimmerman") by counsel, states as follows for his Brief
in Support of its Motion to Dismiss.
FACTS
The plaintiff filed this action for both compensatory and punitive damages arising from
Defendant Zimmerman's alleged acts and conduct in violation ofthe plaintiffs rights under both
federal and state laws. The Court has jurisdiction in this matter pursuant to 28 U.S.C. §§ 1331
and 1343.
This action arises out of the termination of the plaintiff by Defendant Board of Trustees
of Shenandoah County ("Board of Tmstees"). The plaintiff served as the Director of Defendant
Shenandoah County Library ("Library") from January 1, 2002 until October 12, 2010. Complaint
\ 6. Defendant Library is a public entity established by the goveming body of Shenandoah
County pursuant to Virginia Code § 42.1-33, et seq. Complaint % 9. Defendant Board of
Trustees is also a public entity appointed by the goveming body of Shenandoah County pursuant
to Virginia Code § 42.1-35. Complaint | 10. Defendant Zimmerman was the Chairman ofthe
Library's Board of Trustees, and is sued in both his individual and official capacities. Complaint

On the morning of October 1, 2010, Defendant James Dallas Moore ("Defendant
Moore") came into the plaintiffs office at the Library.
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The plaintiff alleges that Defendant

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Moore physically pushed him back from his computer and seized two extemal computer hard
drives that were on the plaintiffs desk near his computer, on the opposite side ofthe desk from
the doorway thi-ough which Defendant Moore entered the office. Complaint ^17. The plaintiff
alleges that one of the hard drives belonged to the Library and one of the hard drives was his
personal property. Complaint | 19. When Defendant Moore attempted to leave the plaintiffs
office with both of the hard drives, the plaintiff attempted to retrieve the hard drives from
Defendant Moore. Complaint ^ ^ 2 1 , 23. When the plaintiff attempted to retrieve the hard drive
from Defendant Moore, Defendant Moore allegedly threw both ofthe drives to the floor and they
shattered. Complaint ^ 24.

The plaintiff further alleges that Defendant Moore's conduct

destroyed the plaintiffs hard drive, rendering it useless and the files on it irretrievable.
Complaint T 27.
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The plaintiff avers that when Defendant Zimmerman learned ofthe incident, he asked the
plaintiff not to file a criminal complaint against Defendant Moore, and further told the plaintiff to
wait until after the plaintiff had returned from a scheduled conference to make a decision about
Defendant Moore's employment. Complaint | 29. Defendant Moore filed a complaint to law
enforcement against the plaintiff for assault and battery on October 2, 2010. A Sheriffs Deputy
came to the plaintiffs home and advised him of such complaint. Complaint ^ 30. In response,
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the plaintiff alleges that he, as Director of the Library responsible for personnel decisions,
terminated Defendant Moore and then informed Defendant Zimmerman. Complaint T 31. On or
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about October 12, 2010, Defendant Board of Trustees met and voted to terminate the plaintiffs
employment. Complaint T 36. Further, the Board of Trustees reinstated Defendant Moore to his
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job. Complaint T 37.
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The Complaint contains six separate counts against Defendant Zimmerman, individually
and officially, including both federal and state claims. Count One alleges a claim under 42
U.S.C. § 1983, alleging that the defendants' conduct violated clearly established statutory and
constitutional rights of which a reasonable person would have known, including the right to be
free from unlawful searches and seizures, and the right to protection from unlawful takings
without due process under the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution. Complaint T 42. The plaintiff alleges he had both a statutoiy and a constitutional
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right to possession ofthe computer hard drives. Complaint T 41. Further, the plaintiff alleges a
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deprivation of his rights, privileges, or immunities secured for him by the Constitution and other
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laws, and that his actions to protect his rights resulted in the unlawful termination of his job.
Complaint T 43.
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Count Two alleges a state claim of conversion, alleging that the defendants had no right
to seize his property. Complaint T 47.
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Count Three alleges a state violation of Virginia

Computer Crimes Act. Complaint T 51. Count Four alleges a state claim of assault and battery,
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stating that Defendant Moore's touching was in an unlawful manner without authority or
permission, and that Defendant Board of Trustees "ratified, adopted, acquiesced in Defendant
Moore's conduct." Complaint T 55. Count Five alleges a violation of Virginia Constitution
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Article 1 § 11, stating that no person shall be deprived of his life, liberty, or property without due
process of law. Complaint T 62. Count Six alleges a wrongful discharge in violation ofVirginia
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public policy arising out ofVirginia Code §§ 18.2-152.1 thi-ough 18.2-152.15 and §§ 19.2-11.01
through 19.2-11.4, as well as the Virginia Constitution, Article 1, § 11. Complaint T 74.
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ARGUMENT
I.

Standard of Review

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the factual
allegations made in a complaint. E.I DuPont De Nemours and Co. v. Kolon Ind., 688 F. Supp.
2d 443, 449 (E.D. Va. 2009); and Edwards v. City ofGoldsboro, 178 F.3d 231, 243-44 (4* Cir.
1999). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted by the court as true, to 'state a claim to relief that is plausible on its face.'" E.I DuPont
De Nemours, 688 F. Supp. at 449 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).
To be plausible on its face, the facts alleged must be more than a "sheer possibility that a
defendant has acted unlawfully." Id. While the Court must accept as true all factual allegations
contained in the complaint, it is not bound to accept as true the complaint's legal conclusions.
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.").
Moreover, the Court "need not accept as true unwarranted inferences, um-easonable conclusions,
or arguments." Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4* Cir. 2006). A motion to dismiss
will be granted if it appears that the plaintiff would be entitled to no relief under any state of
facts which could be proved to support his claim. Wolford v. Budd Co., 149 F.R.D. 127, 129
(W.D. Va. 1993).

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II.

No § 1983 Claim Against Defendant Zimmerman Individually or Officially

In Count One ofthe Complaint, the plaintiff purports to allege a violation of 42 U.S.C. §
1983, stating: "Because Defendant Moore and the other Defendants had no right to seize
plaintiffs computer hard-drive, because the seizure of Plaintiff s property was um-easonable and
because Plaintiff objected to the seizure. Plaintiff had both a statutory right and a constitutional
right to possession ofthe computer hard-drive." Complaint T 41. In essence, the plaintiff alleges
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an unlawful search and seizure and the right to protection from unlawful taking without due
process of law under the Fourth, Fifth, and Fourteenth Amendments. Complaint T 42. However,
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the plaintiff fails to state an actionable claim against Defendant Zimmerman, in either his official
or individual capacity.
A. Official Capacity Lawsuit against Defendant Zimmerman Must be Dismissed
Whether an individual is sued in an official or personal capacity will determine what
elements a plaintiff must prove. Mc£)o«a/(iv. Dunning, 760 F. Supp 1156, 1160 (E.D. Va. 1991).
When a defendant is sued in his or her official-capacity, as opposed to personally, it is simply
another way of suing the entity of which the officer is an agent. Kentucky v. Graham, 473 U.S.
159, 165-66 (1985) (citations omitted). In Kentucky, the U.S. Supreme Court reiterated that an
official capacity suit "is not a suit against the official personally, for the real party in interest is
the entity", and a plaintiff can only seek to recover on a damages judgment against the
government entity itself, not against the official's personal assets. Id. Thus, in this case, the
claims against Defendant Zimmerman in his official capacity are merely reiterations of the same
claims against the real party in interest, the entity Defendant Board of Trustees.
Further, courts have repeatedly held that there is no need to have an agent defendant in
his official capacity in the lawsuit when the entity is also a defendant. See Will v. Mich. Dept of
State Police, 491 U.S. 58, 70-71 (1989) (state officials sued in their official capacities are not
"persons" within the meaning of § 1983). Moreover, the Westem District ofVirginia recently
held that "to the extent that [the plaintiff] seeks to sue the defendants in their official capacities
for monetary damages pursuant to § 1983, such claims must be dismissed." Brown v. Ray, 695 F.
Supp. 2d 292, 298 (W.D. Va. 2010); see also Couch v. Jabe, 479 F. Supp. 2d 569, 598 (W.D. Va.
2006) (court dismissed the plaintiffs claims insofar as he seeks monetary damages from the
defendants in their official capacities); and Mainstream Loudoun v. Board of Trustees of
Loudoun County Library, 2 F. Supp. 2d 783, 791 (E.D. Va. 1998) (district court concluded that
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individual Library Board Members are unnecessary parties to the action and should be
dismissed).

Like in Mainstream Loudoun, Defendant Zimmerman is an unnecessary party

because Defendant Zimmerman is sued only as a surrogate for the Board of Trustees, and a
judgment against Defendant Zimmerman cannot be expected to provide the plaintiff with
complete relief for the requested declaratory, equitable, or monetary relief demanded.
Mainstream Loudoun, 2 F. Supp. 2d at 791. Therefore, all ofthe claims against Defendant
Zimmerman in his official capacity must be dismissed.
B. Personal Capacity Lawsuit against Defendant Zimmerman Should Also be Dismissed
On the other hand, suits against agents of the local government agency in their personal
capacity seek to impose personal liability on the agent for actions he takes under color of state
law. Kentucky, A13 U.S. at 165. Thus, to impose personal liability in a § 1983 action, the
plaintiff must show that the official, acting under color of state law, caused the deprivation of a
federal right. Id. at 166 (citing Monroe v. Tape, 365 U.S. 167 (1961)).
In this case, the plaintiff cannot recover against Defendant Zimmerman personally, as
there are no allegations or acts committed by Defendant Zimmerman that caused any deprivation
of a federal right suffered by the plaintiff Lawsuits against agents in their personal capacities
cannot proceed "absent proof of some degree of personal involvement in the alleged deprivation
of rights." McDonald, 760 F. Supp at 1160 (citing Vinnedge v. Gibbs, 550 F.2d 926, 928-29 (4*
Cir. 1977); and Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md.), aff'd 451 F.2d 1011 (4*
Cir. 1971)). The plaintiff makes sweeping conclusions that "the other Defendants" had no right
to seize his hard drive (Complaint T 41), and that the "Defendants'conduct" violated clearly
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established statutory and constitutional rights (Complaint T 42), and that "Defendants, through
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state action, subjected Plaintiff to the deprivation of his rights, privileges, or immunities secured
by the Constitution or other laws." Complaint T 43. However, the plaintiff fails to state any
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actions by Defendant Zimmerman that caused the unlawful search and seizure by Defendant
Moore. Defendant Zimmerman was not alleged to have even been present at the Library at the
time ofthe alleged illegal search and seizure by Defendant Moore. Defendant Zimmerman took
no part in and was not present during the interaction between Defendant Moore and the plaintiff
See Complaint T 28 ("Defendant Zimmerman came to the office later on the moming of October
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1, 2010."). The Complaint is completely devoid of any alleged facts giving rise to a § 1983
claim against Defendant Zimmerman personally. See Craddock v. Hicks, 314 F. Supp. 2d 648,
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654 (N.D. Miss. 2003) (The district court found no basis for individual liability against defendant
Chief White, who did not participate in the plaintiffs arrest in any way).
For these reasons, the lawsuit against Defendant Zimmerman, both in his individual and
personal capacity, should be dismissed.
III.

No Alleged State Claims Against Defendant Zimmerman

Counts Two, Three, and Four of the Complaint allege state tort claims for conversion,
assault and battery, and violation of Virginia Computer Crimes Act, Virginia Code § 18.2152.12. Defendant Zimmerman, either in his personal or official capacity, is not liable for the
alleged actions of Defendant Moore. See Carter v. City of Danville, 164 F.3d 215, 221 (4* Cir.
1999) (plaintiffs state tort claims of assauh, battery, and false imprisonment against the Chief of
Police were dismissed as no indication that Chief participated in or authorized raid on the
plaintiffs home or her inteiTogation).

First, under Virginia law, "a person is liable for

conversion for the wrongful exercise or assumption of authority over another's goods, depriving
the owner of their possession, or any act of dominion wrongfully asserted over property in denial
of, or inconsistent with, the owner's rights." E.I DuPont De Nemours and Co. v. Kolon Ind., 688
F. Supp. 2d 443, 454 (E.D. Va. 2009) (quoting Simmons v. Miller, 261 Va. 561, 582 (2001)).
The plaintiff has failed to state how Defendant Zimmerman deprived the plaintiff of possession
of his property or asserted any act of dominion over the plaintiffs property in denial or
inconsistent with his rights.
The Complaint alleges that only Defendant Moore seized the hard drive. Defendant
Moore did not in fact leave the plaintiffs office with the hard drive. Nor did Defendant Moore
maintain possession of the hard drive. While Defendant Moore allegedly attempted to leave the
plaintiffs office with the intention of seizing the hard drives, Defendant Moore threw both ofthe
drives to the floor and they shattered. Complaint TT 20, 21, and 24. Nothing else in the
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Complaint sets forth any additional facts supporting a claim for conversion against Defendant
Zimmerman. All of the facts alleged by the plaintiff focus solely on the actions of Defendant
Moore. There are no facts or actions alleged supporting that Defendant Zimmerman wrongfully
exercised or assumed authority over the plaintiffs goods or deprived the plaintiff of possession

' Further, the actions allegedly committed by Defendant Moore were not taken against the plaintiff under color of
state law, do not constitute state action, and do not give rise to a federal claim under §1983, as the allegations detail
a personal dispute between the plaintiff and Defendant Moore. See Memorandum in Suppoit of Motion to Dismiss
filed by Defendant Moore.
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of his property, or any act by Defendant Zimmerman wherein he wrongfully asserted dominion
over the plaintiffs property in denial of, or inconsistent with, the plaintiffs rights. The plaintiff
merely makes a blanket assertion that the "Defendants had no right to seize Plaintiffs property"
(Complaint T 46); however, the facts alleged only show that Defendant Moore, not Defendant
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Zimmerman, allegedly illegally seized the plaintiffs property. Thus, the plaintiffs conversion
claim fails against Defendant Zimmerman.
There are no allegations or facts showing that Defendant Zimmerman actually
participated in the seizure of the hard drive, the physical altercation between the plaintiff and
Defendant Moore, the grabbing of the hard drive, or the alleged shattering of the hard drive.
Indeed, Defendant Zimmerman was not alleged to even be at the Library at the time of any of
these events. Likewise, there are no facts supporting that Defendant Zimmerman authorized
Defendant Moore to go into the plaintiffs office and grab and break his hard drive. As such,
there are no grounds for liability, either directly or indirectly, by Defendant Zimmerman, either
in his official capacity or on a personal basis, for the alleged actions of Defendant Moore.
Second, the plaintiff incorrectly applies the provisions of the Virginia Computer Crimes
Act. The plaintiff simply alleges that the defendants have violated Virginia Code §§ 18.2-152.1
through 18.2-152.15; however, application of the facts alleged in the Complaint to the Act
demonstrates that, in fact, the majority of those Code provisions are not triggered. At best, the
plaintiff arguably may have alleged sufficient facts to infer a violation ofVirginia Code § 18.2152.4(A)(3) in that computer data may have been allegedly ahered, disabled, or erased when
Defendant Moore threw the plaintiffs hard drive to the floor. However, none ofthe allegations
show that Defendant Zimmerman violated the Act in any way at any time. There is no allegation
that Defendant Zimmerman altered, disabled, or erased the plaintiffs computer data.

The

plaintiffs bare allegation that the defendants have violated the Act, without any actual facts to
support such conclusions, is legally insufficient to state a claim for relief against Defendant
Zimmerman for conversion.
Count Four alleges a claim of assauh and battery based solely on the actions of
Defendant Moore. Complaint T 54. Moreover, the plaintiff specifically states that the unlawful
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touching by Defendant Moore "did not arise out of his employment, although such conduct
occun-ed during the course of his employment." Complaint T 54. Rather, the plaintiff makes an
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allegation without any factual support that Defendant Zimmerman "ratified, adopted and
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acquiesced in Defendant Moore's conducf (Complaint T 55), which is legally insufficient to
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state a claim for relief against Defendant Zimmerman for assault and battery.
Therefore, Counts Two, Three, and Four should be dismissed as against Defendant
Zimmerman, both individually and in his official capacity.
VI.

Defendant Zimmerman Did Not Violate Virginia Constitution

Count Five of the Complaint states a general averment that the Defendants deprived the
plaintiff of his property without due process of law (Complaint T 62), but alleges no facts
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specific or attributable to Defendant Zimmerman. All of the facts and allegations center on the
actions of Defendant Moore in seizing and destroying the plaintiffs hard drive. There are no
unconstitutional acts alleged by Defendant Zimmerman; thus. Count Five of the Complaint
should be dismissed against Defendant Zimmerman.
VII.

Defendant Zimmerman Not Liable for Alleged Wrongful Termination

Count Six of the Complaint alleges that the plaintiffs employer. Defendant Board of
Trustees, wrongfully terminated him in violation of Virginia public policy, based on alleged
violations ofthe Crime Victim and Witness Rights Act, Virginia Code §§ 19.2-11.01 through
19.2-11.4, Virginia Computer Crimes Act Virginia Code §§ 18.2-152.1 through 18.2-152.15, and
the Virginia Constitution, Article 1, § 11. In essence, the plaintiff asserts a public policy
exception to his at-will employment. However, the plaintiff fails to state a valid claim against
Defendant Zimmerman, either in his individual or official capacity, for wrongful termination.
Defendant Zimmerman, at the time the plaintiff was terminated, was the Chairman ofthe
Board of Trustees. Defendant Board of Trustees was established pursuant to Virginia Code §
42.1-35 to manage and control Defendant Library.

The plaintiff alleges that Defendant

Zimmerman had obtained commitments from the other members ofthe Board of Trustees before
October 7, 2010, to terminate the plaintiffs employment. Complaint T 35. However, Defendant
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Zimmerman's actions, even if taken as true, do not create any liability on his part for Defendant
Board of Trustees' decision to terminate the plaintiff.
The Western District of Virginia has recently addressed a similar issue in VanBuren v.
Virginia Highlands Orthopaedic Spine, 728 F. Supp. 2d 791 (W.D. Va. 2010). In VanBuren, the
plaintiff alleged that she was terminated in retaliation of her complaints of sexual harassment and
hostile work environment, constituting a vw-ongfiil discharge in violation of Virginia public
policy. VanBuren 728 F. Supp. 2d at 792. The plaintiff filed suit against both her employer,
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Virginia Highlands Orthopaedic Spine Center, LLC, and her supervisor, Stephen A. Grubb, M.D.
Id. at 793. Defendant Dr. Grubb filed a motion to dismiss under Rule 12(b)(6), claiming that, as
her supervisor, he had no liability for VanBuren's wrongful termination. The court agreed,
stating that "when the employee-employer relationship has been wrongfully terminated, liability
to the wronged employee can only rest with the other party in that the [sic] relationship, the
employer." Id. at 794. The district court further reasoned that the "impetus for permitting a
wrongful discharge 'Bowman' claim was, from the outset, to protect the vulnerable employee,
not to sanction or punish any individual wrongdoer." Id. at 797 (citing BoM'man v. State Bank of
Keysville, 229 Va. 534, 539-40 (1985)).

Finding no policy reason to hold a supervisor

individually liable for the vw-ongful discharge,^ the district court granted Dr. Grubb's motion to
dismiss the plaintiffs claim against him personally. Id. at 798, 800. The same reasoning applies
to the facts of this case. Indeed, here. Defendant Zimmerman is neither a supervisor nor an
individual wrongdoer.

Moreover, there is no basis in law for liability against Defendant

Zimmerman individually. All of his alleged actions were performed in his position as Chairman
of the Board of Tmstees. The plaintiff can recover, if he can recover at all, only against his
employer. Defendant Board of Trustees.
For these reasons. Count Six of the Complaint should be dismissed against Defendant
Zimmerman, both in his individual and official capacities.
Punitive Damages Not Recoverable Against Defendant Zimmerman
The plaintiff has failed to allege facts sufficient to support a claim for punitive damages.
Virginia courts generally disfavor punitive damages. Simbeck, Inc. v. Dodd Sisk Whitlock Corp.,
257 Va. 53, 58 (1999). A claim of punitive damages must be supported by "factual allegations
sufficient to establish that the defendant's conduct was willful or wanton." Green v. Ingram, 269
Va. 281, 291-92 (1995) (citing Huffman v. Love, 245 Va. 311, 314 (1993)); and Booth v.
Robertson, 236 Va. 269, 273 (1988)).

In this case, the Complaint contains no facts, merely

unsupported conclusions and allegations, of willful and wanton conduct, conscious and/or
reckless disregard for the plaintiffs rights, and malice and ill-will and spite; therefore, such
claims are insufficient as a matter of law to support an award for punitive damages.

^ The district court also found that permitting non-employer liability would overly broaden public policy exception,
in contradiction to consistent holdings ofthe Virginia Supreme Court that this doctrine is to be narrowly construed.
Id. at 798.
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CONCLUSION
The Complaint fails to state a claim upon which relief can be granted against Defendant
Ziinmerman, either in his official or personal capacity. First, the plaintiffs 42 U.S.C. § 1983
claim is insufficient as a matter of law. Defendant Zimmerman must be dismissed in his official
capacity, as the true and proper party is the entity for whom Defendant Zimmerman represents,
the Board of Trustees, who is already a defendant.

Thus, the claim against Defendant

Zimmerman in his official capacity is redundant and unnecessary and must be dismissed.
Second, as there are no allegations of personal action or involvement by Defendant Zimmerman
in the alleged unlawful search and seizure by Defendant Moore, the plaintiff has failed to state a
proper claim against Defendant Zimmerman in his personal capacity.

The alleged state tort

claims and violation of the Virginia Constitution arise out of actions putatively committed by
Defendant Moore, not Defendant Zimmerman; and therefore, should be dismissed. Finally,
under Count Six, the plaintiffs claim for wrongful termination is without merit against
Defendant Zimmerman, as the plaintiff can recover only against his employer. Defendant Board
of Trustees, not Defendant Zimmerman.
Wherefore, Defendant Zimmerman, by counsel, respectfully requests that based on all of
the reasons set forth in this Memorandum in Support of the Motion to Dismiss, and for the
reasons to be argued at the hearing of this matter, the Court grant Defendant Zimmerman's
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismiss
this matter with prejudice in its entirety as against him, both individually and personally, and for
any further relief deemed necessary and proper.
HANK ZIMMERMAN
By Counsel

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LITTEN & SIPE L.L.P.

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 22"^ day of December, 2011, 1 electronically filed the foregoing
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.

Y\

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