Warner v. Doucette
Filing
19
MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on July 30, 2019. (sfc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
RUTH ANN WARNER,
As guardian of Jonathan James Brewster
Warner, an incapacitated adult,
Plaintiff,
v.
MICHAEL R. DOUCETTE,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
07/30/2019
Civil Action No. 6:18-cv-00064
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION
In this case, plaintiff Ruth Ann Warner, as guardian of Jonathan James Brewster Warner,
alleges that defendant Michael Doucette, violated Mr. Warner’s civil rights. Doucette was the
Commonwealth’s Attorney for the City of Lynchburg at the time of the events alleged in the
complaint; he has since retired. Warner alleges that, after Mr. Warner was involved in an
altercation at the emergency psychiatric unit of Lynchburg General Hospital and was shot by a
hospital security guard, Doucette issued a press release/report and held a press conference
explaining his decision not to bring charges against the shooting officer or against Mr. Warner.
Warner contends that, both in the press release and during the course of the conference, Doucette
divulged Mr. Warner’s “sensitive, private medical history” without his consent and “without any
justification.” (Compl. ¶ 1, Dkt. No. 2.)
The complaint contains two counts, both of which Warner asserts against Doucette in his
individual capacity. (Pl.’s Opp’n Resp. Mot. to Dismiss 10, Dkt. No. 15 (Opp’n).) Count One
asserts a claim for “invasion of privacy” pursuant to 42 U.S.C. § 1983, referencing both the Fourth
and Fourteenth Amendments. Count Two asserts a state-law claim for “invasion of privacy”
premised on Virginia Code § 32.1-127.1:03, which Warner contends creates a right to privacy in the
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 1 of 15 Pageid#: 136
content of health records and which she contends Doucette violated. Count Two alleges that
Doucette acted “willfully or with gross negligence in redisclosing” Mr. Warner’s health records,
although the complaint alleges no facts to support that contention.
Pending before the court is Doucette’s motion to dismiss. (Dkt. No. 8.) After Warner
failed to timely respond to that motion, the court issued a show-cause order, directing that Warner
explain her failure. (Dkt. No. 13.) She then filed her response to the show-cause order, to which
Doucette responded. (Dkt. Nos. 14, 16.)
Warner’s explanation for filing the response late is that counsel’s automatic calendaring
software was not working properly because of an inadvertent failure to update a password on his
computer. While the court questions whether this excuse establishes excusable neglect, it is
unnecessary to resolve that issue.1 Instead, the court simply notes that, even if the court considers
the late-filed response to the motion to dismiss (Dkt. No. 15), plaintiff’s complaint is nonetheless
subject to dismissal for the reasons discussed herein. Accordingly, the court will grant the motion
to dismiss, dismissing Count One with prejudice and Count Two without prejudice, and will dismiss
as moot the order to show cause. The court also will deny Doucette’s request for attorney and
expert fees in this matter.
1
Doucette is correct that Warner failed timely to respond to the complaint, and he cites to a number of cases
where courts have concluded that the type of excuse offered by counsel here do not establish excusable neglect or good
cause for allowing the late-filed reply. (See Def.’s Resp. to Pl.’s Resp. to Order to Show Cause 8–10, Dkt. No. 16.)
He also argues that the case should be dismissed for failure to prosecute. Again, the court instead will address the
merits of the dismissal motion, but one point of clarification is warranted as to the failure-to-prosecute argument.
Specifically, the court believes that Doucette has misinterpreted the court’s prior order concerning Warner’s request for
in forma pauperis status. Doucette states that the order granted the request to proceed without prepaying fees or costs,
but also included language stating that “[i]f the filing fee is not paid within 14 days, the case will be dismissed.” (Id. at
2 (quoting Dkt. No. 3).) He then points out that Warner failed to pay the filing fee. Although the quoted language
appears on that form (and perhaps it is not entirely clear from the form), the box that relates to that language (which is
applicable only if the motion is denied) is not checked. Instead, the court granted the motion to proceed in forma
pauperis. Accordingly, no filing fee was required to be paid.
2
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 2 of 15 Pageid#: 137
I. FACTUAL BACKGROUND
The facts alleged in the complaint are simple and straightforward. Warner was shot by a
security guard at Lynchburg General Hospital after he had come to the hospital for psychiatric
treatment. The shooting and the entire altercation that preceded it were captured on video,
although there is no corresponding audio. Doucette investigated the shooting, working in
conjunction with the Lynchburg Police Department. During the course of that investigation,
Doucette obtained Warner’s health records.
On June 1, 2016,2 “Doucette conducted a press conference and issued a press release to
discuss the results of his investigation and to explain his decision not to charge anyone criminally.”
(Compl. ¶ 11.) During the conference and in the text of the press release, Doucette “revealed and
redisclosed sensitive content from Warner’s health records, discussing with specificity information
taken from Warner’s medical records, including Warner’s psychiatric conditions, history, treatment,
and medication.” (Id. ¶ 12.). The complaint itself does not provide additional details about
exactly what was revealed.
II. DISCUSSION
A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s allegations must “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “requires the plaintiff to
articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him
to relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193
2
Doucette claims that the press conference and related report (what Warner calls the press release) actually
occurred on June 3, 2016. (Def.’s Mem. Supp. Mot. Dismiss 8 n.12, Dkt. No. 9.) The precise date is immaterial to the
court’s decision.
3
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 3 of 15 Pageid#: 138
(4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The plausibility standard requires more than “a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
In determining whether the plaintiff has met this plausibility standard, the court must accept
as true all well-pleaded facts in the complaint and any documents incorporated into or attached to it.
Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further,
it must “draw[] all reasonable factual inferences from those facts in the plaintiff’s favor,” Edwards
v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it “need not accept legal conclusions
couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments,’” Wag More
Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008)).
Because the court concludes that its consideration of Doucette’s sovereign immunity should
be analyzed under Rule 12(b)(1), see infra Section II-D, it also briefly touches upon those
standards. Specifically, in deciding a Rule 12(b)(1) motion, “the district court is to regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Evans v. B.F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991)). It must, however, “view[] the alleged facts in the light most
favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern v. Edwards,
190 F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.”
Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R, 945 F.2d at 768).
B. Consideration of Extrinsic Documents
The parties disagree about whether the court can consider documents that Doucette attached
to his motion to dismiss. Typically, when a defendant moves to dismiss under Rule 12(b)(6), a
4
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 4 of 15 Pageid#: 139
court is “limited to considering the sufficiency of allegations set forth in the complaint and the
‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,
780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 448 (4th Cir. 2011)). It may, however, consider a document attached to a motion to
dismiss when the document is “‘integral to and explicitly relied on in the complaint,’” and when the
document’s authenticity is unchallenged. Zak, 780 F.3d at 606 (quoting Am. Chiropractic Ass’n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)).
In this case, the “press release,” which is actually an eleven-page report titled
“Commonwealth’s Attorney’s Report on the Shooting of Jonathan Warner,” (Def.’s Mot. to Dismiss
Ex. 8, Dkt. No. 9–8 (Report)), is certainly integral to the complaint, as is the hour-long press
conference, the video of which is available at https://wset.com/news/local/lynchburgcommonwealths-attorney-to-announce-hospital-shooting-findings-today (last visited July 26, 2019)
(Press Conf.). The report and the press conference form the basis for Warner’s claims, and she
does not challenge their authenticity. Indeed, Warner appears to agree that the court can consider
those documents: her response notes that any lack of detail in the complaint is remedied by
defendant’s incorporating the written press release/report, which contains the specific statements
made. (Opp’n 8.) Thus, the court concludes that it may consider them in ruling on the motion to
dismiss, especially insofar as they provide additional detail (not provided by the complaint’s
allegations) as to what exactly was revealed about Mr. Warner and his health information.
As to all of the remaining documents, some certainly support some of Doucette’s arguments
for dismissal. For example, defendant has provided a significant amount of information showing
that the information allegedly made public by Doucette had already been made public by Warner’s
counsel and others associated with Mr. Warner, both in public court filings and in other public
statements. Indeed, a number of those documents show that Mr. Warner’s family members or his
5
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 5 of 15 Pageid#: 140
attorney publicly revealed—prior to Doucette’s disclosures—significantly more details about his
health history and conditions than did Doucette. (E.g., Def.’s Mem. Supp. Mot. Dismiss, Ex. 3,
Dkt. No. 9-3 (February 2016 press release by Mr. Warner’s counsel that discloses his specific
diagnosis, in addition to other information; id., Ex. 5, Dkt. No. 9-5 (“Bill of Particulars” filed in a
public case by Warner’s counsel the week before Doucette’s report was issued); see especially id.
¶¶ 28, 33, 34, 39, 47–48, and Exhibit D; see also Def.’s Mem. Supp. Mot. Dismiss 4 n.9
(referencing news article that includes statements from Warner’s attorney and family members
concerning his medical history, https://www.newsadvance.com/news/local/family-questionslynchburg-hospital-shooting-son-remains-in-critical-condition/article_2468c242-4183-5641-99f04bfd2b9f0b40.html (last visited July 26, 2019)).) Nonetheless, the court concludes that those
documents are not properly considered on a motion to dismiss because they are neither integral to
the complaint, nor relied upon by the complaint.
Regardless, Warner’s claims fail as a matter of law on other grounds that do not require the
consideration of those documents. Thus, the court will not consider any other information included
in Doucette’s motion when ruling on the motion to dismiss, except the press release/ report and
press conference video.
C. Count One
Doucette’s first argument is that Warner’s 42 U.S.C. § 1983 claim in Count One fails to
state a federal constitutional claim for a violation of privacy. The court agrees. As an initial
matter, the Fourth Circuit has noted that “there is no general constitutional right to privacy; rather,
the ‘right to privacy’ has been limited to matters of reproduction, contraception, abortion, and
marriage.” Edwards v. City of Goldsboro, 178 F.3d 231, 252 (4th Cir. 1999). As in Edwards,
“none of these matters is implicated in the present case.” Id.; see also Newhard v. Borders, 649 F.
6
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 6 of 15 Pageid#: 141
Supp. 2d 440, 449 (W.D. Va. 2009) (noting same and dismissing the plaintiff’s invasion-of-privacy
claim); Phillips v. Bailey, 337 F. Supp. 2d 804, 807 (W.D. Va. 2004) (same).
As another judge of this court has explained, while the Fourth Circuit has recognized that
“[p]ersonal, private information in which an individual has a reasonable expectation of privacy is
protected by one’s constitutional right to privacy.” DM v. Louisa Cty. Dep’t of Human Servs., 194
F. Supp. 3d 504, 508 (W.D. Va. 2016) (quoting Walls v. City of Petersburg, 895 F.2d 188, 192 (4th
Cir. 1990)), the right applies only to narrow categories of information. The DM court, for example,
declined to hold that the plaintiffs, an adopted child and his adoptive parents, had a constitutional
right to privacy in information concerning “the nature and location” of the child’s counseling
sessions, which related to his claims of child sexual abuse and were disclosed to his abuser. Id. at
509. In so ruling, the court noted that “the question is not whether individuals regard [this]
information about themselves as private, for they surely do, but whether the Constitution protects
such information.” Id. (citation omitted). The court also cited a number of other cases in which
lower courts within the Fourth Circuit declined to recognize a constitutional right to privacy in
one’s personal medical information. Id. (collecting authority). Consistent with that authority, the
court does not believe that Mr. Warner has a constitutionally protected privacy interest in the
medical information disclosed by Doucette.
In response, Warner contends that the language relied on by Doucette from Edwards is
dicta. She points the court instead to a Second Circuit case as “easily” holding that a plaintiff “had
a protected privacy right in . . . medical records.” (Opp’n 3 (citing O’Connor v. Pierson, 426 F.3d
187, 202–03 (2d Cir. 2005)).3 O’Connor, however, did not recognize a freestanding claim for
3
Doucette also correctly notes that there can be no privacy right to information available in public records.
Thus, although the court does not base its decision, in whole or in part, on documents outside of the complaint, except
for the report and the press conference, there is ample information likely undermining any claim that, as of the date of
the press conference, Warner had any privacy right in the information Doucette conveyed. See Cunningham v. U.S.
7
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 7 of 15 Pageid#: 142
“invasion of privacy.”4 Although it noted that an individual has a protected privacy right in his
own medical information, the O’Connor court considered that right in the context of a substantive
due process claim. Specifically, it considered whether a school board violated a teacher’s
substantive due process rights by conditioning his return to work on his being examined by a
physician of the board’s choosing and his authorizing the release of his medical records to that
physician and to the board. 426 F.3d at 201–02.
In her complaint, Warner identifies the Fourth and Fourteenth Amendments as the bases for
her claim. Other than identifying those Amendments, however, neither Warner’s complaint nor her
response to the motion to dismiss even attempt to explain how the allegations state a claim for a
violation of her Fourth or Fourteenth Amendment rights. The court concludes that she fails to state
a claim under either.
First of all, the allegations here do not implicate the Fourth Amendment. Warner does not
allege, nor could she, that Doucette obtained Mr. Warner’s medical records through an
unreasonable search or seizure. They were obtained pursuant to a lawful police investigation into a
shooting in which he was a victim. Warner does not even argue that Doucette’s redisclosure of
them constitutes a search or seizure, let alone explain how.
As to the Fourteenth Amendment and a possible substantive due process claim, the
O’Connor court noted the high bar for a substantive due process claim based on executive action, as
opposed to legislation: “To prevail when challenging executive action that infringes a protected
right, a plaintiff must show not just that the action was literally arbitrary but that it was ‘arbitrary in
the constitutional sense.’” 426 F.3d at 203 (quoting Collins v. City of Harker Heights, 503 U.S.
Veterans Affairs, No. 7:08-cv-00485, 2008 WL 3926452, at *2 (W.D. Va. Aug. 26, 2008) (explaining that any “right to
privacy does not extend to information that is freely available in public records”).
4
Warner does not cite to any other authority to support a freestanding claim for invasion of privacy.
8
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 8 of 15 Pageid#: 143
115, 128 (1992)). Moreover, “mere irrationality is not enough”; instead, “‘only the most egregious
official conduct’” that “‘shocks the conscience’ will subject the government to liability for a
substantive due process violation based on executive action.” Id. (quoting Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998)).
Even characterized as a substantive due process claim, the facts alleged by Warner wholly
fail to meet that high bar. Her allegations concerning Doucette’s conduct fall far short of “mere
irrationality,” let alone conscience-shocking, egregious conduct. This is true based on the general
and conclusory allegations in the complaint, but is even more evident when the court examines the
report and the press conference to see the actual information Doucette disclosed. The complaint
offers general descriptions about “sensitive, private medical history” that Doucette allegedly
released as part of his announcement of his charging decision. (Compl. ¶ 1.) It also accuses
Doucette of “discussing with specificity information taken from [Mr. Warner’s] medical records,
including [his] psychiatric conditions, history, treatment and medication.” (Compl. ¶ 12.) The
press release/report and press conference video paint a different picture.
In fact, Doucette did not reveal any specific diagnosis Warner may have had, identify any
medications he was taking, or otherwise reveal specific medical information. Indeed, Doucette
expressly declined to provide that information during the press conference, referencing instead
simply that Mr. Warner had “significant psychological” issues. (See Press Conf. at 55:18-55:34.)
The extent of the “disclosure” in the report regarding Mr. Warner’s mental health was that
“Warner has suffered for some time with significant psychological disorders that require medication
to keep under control. On the night he went to the hospital, Warner had not been taking his
medication for several days.” (Report 4.) The report also describes, as conveyed by Warner’s
brother at the time he came to the hospital, his behavior in the preceding two weeks, which
consisted of a single sentence. Notably, the entirety of this information is contained in two
9
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 9 of 15 Pageid#: 144
paragraphs of an eleven-page report. The report also references that Doucette believed that Mr.
Warner is “now paralyzed from the T7 vertebrae down, and attributes that information to “medical
reports, press releases from [Warner’s counsel, also counsel in this lawsuit], and media reports.”
(Report 8.) That was the extent of the information conveyed. And it is also worth noting that the
mere location of the shooting—the secured psychiatric emergency center (PEC) at the hospital—
was indisputably public knowledge at the time of Doucette’s press conference. That alone conveys
that Warner was a patient there for purposes of emergency psychiatric treatment. As is now clear,
then, Doucette’s statements revealed very little information from Warner’s records and used broad,
non-specific language in describing it.
Doucette’s conveying that information in the context of explaining his charging decision to
the public is not irrational, as required to state a substantive due process violation. Regardless of
whether he is entitled to absolute immunity for his actions,5 the decision itself by Doucette as to
whether to charge anyone was clearly a prosecutorial function. Safar v. Tingle, 859 F.3d 241, 249
(4th Cir. 2017) (explaining that the “prosecutor’s fundamental judgment of ‘whether and when to
prosecute’” is entitled to absolute immunity). And although Warner characterizes the press
conference as a “political” act (apparently intending a negative implication), a prosecutor’s
explaining his charging decisions to the public is not irrational, unprofessional, or unreasonable.
Indeed, as Judge Wilkinson recognized in his concurring opinion in Nero v. Mosby, 890 F.3d 106
(4th Cir.), cert. denied, 139 S. Ct. 490 (2018), in which the plaintiffs asserted defamation claims
against a prosecutor based on comments she made during a press conference, such public statements
serve an important function:
[The defendant prosecutor] is an elected official . . . . As any of us
would expect of our political leaders, [she] responded to a crisis. And
as all of us should demand from our political leaders, [she] explained
5
See infra note 6.
10
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 10 of 15 Pageid#: 145
her actions to the public. At a press conference, she read from a
charging document, praised investigators, and explained the basis of
the prosecution. To say that an elected official exposes herself to
liability by discharging her democratic duty to justify the decisions
she was elected to make is to elevate tort law above our most
cherished constitutional ideals.
Id. at 131–32 (4th Cir.) (Wilkinson, J., concurring), cert. denied, 139 S. Ct. 490, (2018). See also
Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993) (declining to confer absolute immunity for a
press conference, but recognizing that “[s]tatements to the press may be an integral part of a
prosecutor’s job . . . and they may serve a vital public function”).
Moreover, it can hardly be disputed that the cursory information Doucette presented
regarding Mr. Warner likely was necessary to a full understanding of his decision. Doucette’s
opinion that the guard should not be charged was based on all of the preceding events, which would
have made little sense without noting that Mr. Warner was suffering from psychological illness at
the time. Likewise, although the focus of the report was certainly on the decision not to charge the
security guard, the report also addressed Doucette’s decision not to charge Mr. Warner with assault.
As part of that discussion, certainly, Mr. Warner’s mental health played a key role. Thus,
discussing his mental status, at least in general terms, was directly relevant to the decisions made in
the report.
In short, Doucette’s conduct does not even approach “the most egregious government
action” necessary to support a substantive due process claim. Cty. of Sacramento, 523 U.S. at 846.
Accordingly, the court concludes that Warner has failed to state a claim in Count One, and it will
dismiss that claim with prejudice.6
6
In light of the court’s ruling, it does not reach the other grounds for dismissal asserted by Doucette, which
include assertions of both absolute and qualified immunity. It notes, however, that it is not entirely clear that absolute
immunity would apply in this context. Whether or not Doucette was functioning as a prosecutor is, perhaps, open to
debate. See Imbler v. Pachtman, 424 U.S. 409, 430–31(1976) (directing courts to apply absolute prosecutorial
immunity only when the defendant was functioning as a prosecutor in performing the acts giving rise to the claim).
While the Imbler test is by nature fact-specific, there are cases holding that the actions of prosecutors during press
conferences were not protected by absolute immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 277–78 (1993) (holding
11
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 11 of 15 Pageid#: 146
D. Count Two
Turning to Warner’s state-law invasion of privacy claim, the court questions at the outset
whether the statute relied upon by Warner provides for a private right of action. The Supreme
Court of Virginia, albeit in an unpublished decision, has ruled that it does not. Shumate v. City of
Martinsville, No. 151285, 2016 WL 5327477, at *2 (Sept. 22, 2016). Thus, even assuming that
Doucette was covered by the statute and violated it, both of which are propositions challenged by
him, it would not give Warner a cause of action. To the extent Warner is instead asserting some
type of common law claim for invasion of privacy, “no such cause of action exists under Virginia
law.” Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 612 (E.D. Va. 2005); see Booker v. Dominion
Virginia Power, No. CIV.A. 3:09CV759, 2010 WL 1848474, at *4 (E.D. Va. May 7, 2010) (holding
same). There is a statutory claim in Virginia, but it cannot be based on “public disclosure of true,
embarrassing private facts about the plaintiff,” only on misappropriation of the plaintiff’s name or
likeness for commercial purposes. Booker, 2010 WL 1848474, at *4. The claim here is not a
misappropriation claim and thus cannot be brought under Virginia’s invasion-of-privacy statute.
These reasons, too, appear to provide a basis for dismissal of Count Two.
Doucette did not raise either of these defenses, however. Instead, he advances a number of
other grounds for dismissal. At least one of them—the defense of sovereign immunity—bars
Warmer’s claim in its entirety, and so the court will not address the remainder.7 A state’s
that a prosecutor’s statements to the media were not entitled to absolute immunity, but were protected by qualified
immunity, and explaining that there was no historical precedent for granting “common-law immunity for a prosecutor’s
out-of-court statements to the press”); see also Ostrzenski v. Seigel, 177 F.3d 245, 250 (4th Cir. 1999) (“[A]bsolute
immunity is unavailable when a prosecutor conducts a press conference or when he fabricates evidence concerning an
unsolved crime.”) (quoting Buckley, 509 U.S. at 272–78)).
7
As with the federal claim, Doucette asserts the defense of absolute immunity, an issue the court does not
reach here. See supra note 6. Doucette also contends that the Virginia statute relied upon does not provide a basis for a
claim against him because he is not a “health care entity, or other person working in a health care setting,” as referenced
in Virginia Code 32.1-127.1:03. Relatedly, Doucette contends that “disclosure by a prosecutor in accordance with the
public duties of his office to explain his determinations as to whether to press criminal charges is not ‘beyond the
purpose for which such disclosure was made.’” Again, because this claim is clearly subject to dismissal on the grounds
of sovereign immunity, the court does not reach this ground, either.
12
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 12 of 15 Pageid#: 147
immunity from suit also can extend to individual state actors or employees named in their individual
capacities in state-law claims. Messina v. Burden, 321 S.E.2d 657, 661–62 (Va. 1984). In general
terms, sovereign immunity will shield state employees from liability for acts of simple, but not
gross, negligence, where the acts are discretionary and not ministerial. Colby v. Boyden, 400
S.E.2d 184, 186–87 (Va. 1991). Moreover, although Virginia has waived its immunity with regard
to certain types of claims under the Virginia Tort Claims Act, it has also made clear that “the
individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other
public officers, their agents and employees from tort claims for damages is hereby preserved to the
extent and degree that such persons presently are immunized.” Va. Code § 8.01-195.3.
Warner does not argue that Doucette was engaged in ministerial acts, and the court
concludes that the issuance of his report and the press conference to explain his decision not to
charge the guard or Mr. Warner clearly were discretionary acts.8 Thus, the only question is
whether Warner has alleged facts to show gross negligence by Doucette. It is true that Warner’s
complaint sets forth conclusory language attempting to paint Doucette’s actions so as to avoid
sovereign immunity. (See, e.g., Compl ¶ 22 (alleging that Doucette “acted willfully or with gross
negligence in redisclosing the content of Warner’s health records”); id. ¶ 21 (describing Doucette’s
actions as “without any legal justification”). It is also true that he asserts Doucette acted
“intentionally,” although he does not allege any intentional tort.
But in ruling on a motion to dismiss, the court looks to well-pleaded facts, not conclusions
of law. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) (affirming dismissal of
8
In determining whether immunity extends to Doucette for the claims here, the court is guided by the factors
set forth in James v. Jane, 282 S.E.2d 864 (Va. 1980), which asks the court to evaluate “(1) [t]he function the employee
was performing; (2) [t]he state’s interest and involvement in that function; (3) [w]hether the act performed by the
employee involved the use of judgment and discretion; and (4) [t]he degree of control and direction exercised by the
state over the employee.” Pike v. Hagaman, 787 S.E.2d 89, 92 (Va. 2016). Neither party has addressed these factors,
but the court has independently considered them.
13
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 13 of 15 Pageid#: 148
claims and noting that words like “deliberate indifference,” “malicious,” outrageous” and “wanton,”
all of which were used to describe the officers’ conduct, were “conclusory legal terms” that did not
“insulate [the] complaint from dismissal”). Indeed, courts often dismiss on the grounds of
sovereign immunity, even as to claims of gross negligence, when the factual allegations in the
complaint fail plausibly to allege conduct constituting gross negligence. E.g., Simpson v. Virginia,
No. 1:16-cv-162, 2016 WL 3923887, at *9–10 (E.D. Va. Sept. 30, 2016); Hales v. City of Newport
News, No. 4:11-cv-28, 2011 WL 4621182, at *8 (E.D. Va. Sept. 30, 2011); Roach v. Botetourt Cty.
School Bd., 757 F. Supp. 2d 591, 597–98 (W.D. Va. 2010); Muse v. Schleiden, 349 F. Supp. 2d 990,
1000–01 (E.D. Va. 2004); Hedrick v. Roberts, 183 F. Supp. 2d 814, 824 (E.D. Va. 2001).
In this case, the facts reveal nothing close to a level of gross negligence, if they allege
negligence at all. In Virginia, “gross negligence” requires a showing of “indifference to such other
and an utter disregard of prudence that amounts to a complete neglect of the safety of another
person” such that it would “shock fair-minded persons.” Hamilton v. Boddie-Noell Enters., Inc.,
88 F. Supp. 3d 588, 592 (W.D. Va. 2015). Warner’s allegations do not satisfy this high bar.
As noted in discussing Count One, Doucette revealed only broad medical information about
Mr. Warner, and that information (that Mr. Warner had psychological conditions and had not been
taking his medication) was an important part of, and directly related to, his decision not to charge
the guard or Warner. Nothing in his report or his comments at the press conference suggest that he
was intentionally trying to divulge sensitive or confidential information or that he was acting with
an utter disregard of prudence. To the contrary, he declined to provide more detailed information
at the press conference (including the medication Mr. Warner was to receive and his diagnosis or
diagnoses), and he explained that part of his reason for not providing that information was to respect
Mr. Warner’s privacy. (Press Conf. at 55:18–55:34.) At worst, then, the factual allegations reflect
that he erred in divulging some general information, but the information he conveyed was important
14
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 14 of 15 Pageid#: 149
to his charging decisions and nothing about his conveyance of that information reflects conduct
constituting gross negligence. Accordingly, Doucette is entitled to immunity from this claim, and
Count Two will be dismissed without prejudice for lack of subject-matter jurisdiction.9
E. Defendant’s Request for Fees
As part of his motion to dismiss, Doucette has requested an award of his attorneys’ fees and
expert fees pursuant to 42 U.S.C. § 1988(b) and (c). (Mot. Dismiss 1, Dkt. No. 8.) These
provisions allow the court to award attorneys’ fees and expert fees to the prevailing party with
regard to a Section 1983 claim. As the Fourth Circuit has explained, “[w]hen the prevailing party
is the defendant, the attorneys fees should be awarded if the court finds ‘that the plaintiff’s action
was frivolous, unreasonable or without foundation, even though not brought in subjective bad
faith.’” DeBauche v. Trani, 191 F.3d 499, 510 (4th Cir. 1999) (quoting Hughes v. Rowe, 449 U.S. 5,
14 (1980)). Doucette’s request was not briefed in his supporting memorandum and was arguably
waived. In any event, the court has considered the request and will deny it.
III. CONCLUSION
For the reasons stated above, the court will grant defendant’s motion to dismiss the
complaint, dismissing Count One with prejudice and Count Two without prejudice, but will not
award defendant any fees under 42 U.S.C. § 1988. An appropriate order will follow.
Entered: July 30, 2019.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
9
Although it was previously undecided, the Fourth Circuit has recently clarified that sovereign immunity is a
jurisdictional bar and a motion to dismiss on that ground should be analyzed under Rule 12(b)(1). Cunningham v. Gen.
Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (“[S]overeign immunity deprives federal courts of
jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for
lack of subject-matter jurisdiction.”).
15
Case 6:18-cv-00064-EKD Document 19 Filed 07/30/19 Page 15 of 15 Pageid#: 150
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?