Fuller v. Carilion Clinic
Filing
60
MEMORANUM OPINION AND ORDER granting in part and denying in part 49 Motion for Summary Judgment. Signed by Judge Frederick P. Stamp, Jr on 5/21/2019. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Roanoke Division
ROGER S. FULLER, JR.,
Plaintiff,
v.
Civil Action No. 7:17CV564
CARILION CLINIC,
CARILION CHIEF OF POLICE STEVE LUGAR,
and CARILION POLICE CAPT. RON DONELSON,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I.
Background
This civil action arises out of an alleged seizure of an
employee
by
his
employer’s
private
police
department.
The
plaintiff, Roger S. Fuller, Jr. (“Fuller”), filed a complaint in
the United States District Court for the Western District of
Virginia, Roanoke Division, on December 20, 2017.
ECF No. 1.
The
complaint alleged claims arising under 42 U.S.C. § 1983 and pendent
state claims under 28 U.S.C. § 1367.
ECF No. 1.
The defendant,
Carilion Clinic, filed a motion to dismiss the complaint (ECF
No. 3), and the plaintiff then filed an amended complaint.
ECF
No. 10.
In his second amended complaint, plaintiff Fuller asserted
that he was employed by Carilion Clinic as a janitor and that he
was at work when he found three burned, wooden stick matches and a
signed piece of paper near the Carilion Clinic dentistry lab.
ECF
No. 38 at 4.
Further, plaintiff Fuller indicated that he then
notified the receptionist of the wooden stick matches and the
signed piece of paper, and that Carilion Clinic police then arrived
to investigate the incident.
Security
is
Carilion Clinic Police and
Id.
Services
Department
a
private
police
department
maintained by Carilion Clinic and authorized by the Virginia
General Assembly.
Id. at 3.
In his second amended complaint, plaintiff Fuller alleged that
Carilion Clinic police came to plaintiff’s residence the following
morning and staged a “surround and call out,” a swat-style arrest
tactic, before entering the plaintiff’s home and taking him to the
Carilion Clinic police station for questioning. Id. at 5-6. Next,
plaintiff Fuller asserted that Carilion Clinic police coerced the
plaintiff into confessing to lighting the matches.
Id. at 6-7.
Lastly, plaintiff Fuller alleged that the plaintiff was terminated
from his employment at Carilion Clinic after he refused to meet
with Carilion Clinic police without counsel present.
Id. at 8.
Counts I and II of the amended complaint are claims based on the
alleged unreasonable seizure of the plaintiff’s person by Carilion
Clinic police.
imprisonment.
Id. at 8-11.
Id. at 14-17.
Count III is a claim for false
Count IV is a claim for intentional
infliction of emotional distress.
Id. at 18-21.
Defendant Carilion Clinic then filed a motion to dismiss the
amended complaint for failure to state a claim.
ECF No. 12.
The
plaintiff filed a response in opposition to the defendant’s motion
2
to dismiss the amended complaint (ECF No. 16), and the defendant
then filed a reply to the plaintiff’s response in opposition (ECF
No. 17).
This Court then entered a memorandum opinion and order
finding that: (1) any actions by Carilion Clinic police outside of
the real property owned, leased, or controlled by Carilion Clinic
were not authorized by Virginia Code § 9.1-101, and does not
constitute as state action; and (2) assuming without deciding that
Carilion Clinic police is a state actor, the plaintiff presented
enough evidence that Carilion Clinic may be liable under § 1983.
ECF No. 23 at 8-17.
The
plaintiff
then
filed
a
motion
to
join
additional
defendants, Carilion Chief of Police Steve Lugar (“Chief Lugar”)
and Carilion Police Captain Ron Donelson (“Captain Donelson”). ECF
No. 33.
This Court granted that motion.
ECF No. 37.
After completion of discovery, the defendants filed a motion
for summary judgment pursuant to Federal Rule of Civil Procedure
56.
ECF No. 49.
In their memorandum in support of summary
judgment (ECF No. 50), defendants contended that “there is no
evidence that the Chief of Carilion’s police department ‘made a
decision to arrest, interrogate, and imprison the plaintiff and
that such a decision amounted to a constitutional deprivation’.”
Id. at 8. Defendants asserted that summary judgment is appropriate
under
the
Pembaur
superior liability.
“single
Id.
decision”
exception
to
respondeat
Defendants further stated that plaintiff
Fuller was never placed under arrest and the tactics used during
3
the interview were not coercive, referencing their retained law
Id. at 9.
enforcement expert, Carl Wyche.
Defendants indicated
that without a custodial arrest or circumstances involving coercive
interrogation, defendants did not perform a “public function”
giving rise to liability under § 1983.
Similarly, defendants
Id.
contended that since no arrest was made and since plaintiff was
never falsely imprisoned, plaintiff’s state law claims should be
dismissed as a matter of law.
Plaintiff
Fuller
Id.
filed
a
response
defendants’ motion for summary judgment.
in
opposition
ECF No. 51.
to
the
Plaintiff
Fuller stated that Captain Donelson was acting in performance of
his official duties, outside of Carilion Clinic’s jurisdiction,
when going to plaintiff Fuller’s home at the direction of Chief
Lugar.
ECF No. 52 at 7.
Carilion
Clinic
police
In response to defendants’ argument that
did
not
perform
a
“public
function,”
plaintiff Fuller stated that the public function test is not
specific
as
to
what
duties
or
jobs
the
individual
officers
performed, but whether they are exclusively authorized to act in
the first place.
Id. at 10.
According to plaintiff Fuller,
Captain Donelson was dispatched by Chief Lugar to plaintiff’s home
in furtherance of an investigation, which was consistent with the
officer’s authority granted by the Virginia General Assembly to
deter and prevent crime, and to safeguard life and property.
at
11.
Moreover,
plaintiff
Fuller
explained
that
Id.
plaintiff
believed that he was under arrest and did not feel free to refuse
4
to accompany the Carilion Clinic officers to the police station,
reciting facts regarding the time, place, and purpose of the
encounter by Carilion Clinic police, words used, general tone and
demeanor, the presence of multiple officers, and display of a
firearm. Id. at 11-15. Lastly, plaintiff Fuller asserted that the
following decisions, and omissions, by Chief Lugar, or his alleged
delegee, Captain Donelson, as policymakers imputed § 1983 liability
to Carilion Clinic: (1) authorization of plaintiff Fuller’s arrest
and
transport
outside
of
Carilion
Clinic’s
jurisdiction;
(2)
failure to supervise the police interrogation of plaintiff Fuller,
resulting in a deprivation of plaintiff’s civil rights; and (3) a
policy of regulating perceived employee misconduct under the guise
of
police
activity.1
investigation
of
potential
or
possible
criminal
Id. at 15-25.
Defendants filed a reply to plaintiff Fuller’s response in
opposition to their motion for summary judgment.
ECF No. 54.
The
defendants first stated that the Court should decline plaintiff
Fuller’s attempt to revisit this Court’s prior ruling that as a
private police force, Carilion Clinic police cannot be acting under
color of state law off premises.
Id. at 1-2.
Second, defendants
contended that plaintiff Fuller cannot establish a policy on the
1
This Court notes that plaintiff Fuller does not appear to
raise a delegation argument in his response to defendants’ motion
for summary judgment (ECF No. 52) that was raised in his amended
complaint (ECF No. 10), namely, plaintiff’s argument that Captain
Donelson is a delegee and could also act as a policymaker. See ECF
No. 10 at 9. Nevertheless, the Court addresses that argument as
well.
5
part of Chief Lugar, or Captain Donelson, to treat plaintiff in an
unconstitutional manner, eliminating respondeat superior liability
on behalf of Carilion Clinic.
Id. at 2-3.
Third, defendants
contended that Carilion Clinic police were not performing a public
function when at plaintiff Fuller’s home, because this Court has
ruled that § 1983 liability cannot apply to Carilion Clinic’s off
campus activities.
Id. at 3.
Defendants explained that plaintiff
Fuller was told that he was not under arrest and they contended
that a reasonable person would not have believed that the setting
was custodial.
is
no
policy
Id. at 3-4.
at
employment matters.
Carilion
Lastly, defendants stated that there
Clinic
to
use
law
enforcement
in
Id. at 4-5.
II.
Applicable Law
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A fact is
“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
A dispute of material
fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.” Id. If the
nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against the plaintiff.
6
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In reviewing the supported
underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.
See
“The burden then shifts to the
nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945
F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
III.
Discussion
Following this Court’s review of the fully briefed motions,
memoranda, and exhibits submitted by the parties, this Court finds
that, for the reasons set forth below, the defendants’ motion for
summary judgment must be denied in part and granted in part.
A. Carilion Clinic, Chief Lugar, and Captain Donelson are state
actors under 42 U.S.C. § 1983 for actions taken both on and off
premises.
To obtain relief under § 1983, a plaintiff must prove the
following elements: (1) the defendant acted under color of state
law; and (2) while acting under color of state law, the defendant
7
deprived the plaintiff of a federal constitutional or statutory
right.
42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155, 98 S. Ct. 1729, 56 L.Ed.2d 185 (1978) (emphasis added).
“An important inquiry in a § 1983 suit against a private party
is whether there is an allegation of wrongful conduct that can be
attributed to the [s]tate.”
Lugar v. Edmondson Oil Co., 457 U.S.
922, 948, 102 S. Ct. 2744, 73 L.Ed. 482 (1982) (internal quotation
marks omitted). Conduct satisfying the state action requirement of
the Fourteenth Amendment satisfies § 1983’s requirement of action
under color of state law.
Id. at 929.
“Like the state-action
requirement of the Fourteenth Amendment, the under-color-of-statelaw element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U. S. 40, 49, 119 S. Ct. 977, 143
L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002,
102 S. Ct. 2777, 73 L.Ed.2d 534 (1982)) (internal quotation marks
omitted). “[L]iability attaches only to those wrongdoers who carry
a badge of authority of a [s]tate and represent it in some
capacity, whether they act in accordance with their authority or
misuse it.”
National Collegiate Athletic Ass’n v. Tarkanian, 488
U.S. 179, 191, 109 S. Ct. 454, 102 L.Ed.2d 469 (1988) (citing
Monroe v. Pape, 363 U.S. 167, 172, 81 S. Ct. 473, 476, 5 L.Ed.2d
492 (1961)) (internal quotation marks omitted).
“The traditional
definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by
8
virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West v. Adkins, 487 U.S.
42, 49, 108 S. Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85
L.Ed. 1368 (1941)) (internal quotation marks omitted).
In a typical case involving a state action issue, a private
party has taken a decisive step that caused harm to the plaintiff,
and the question is whether the state was sufficiently involved to
treat that conduct as state action, or in other words, whether the
state provided a mantle of authority that enhanced power of the
harm-causing actors.
The United States Supreme Court has created
at least seven distinct tests to assist lower courts in dealing
with state action issues.
See Julie K. Brown, Less is More:
Decluttering the State Action Doctrine, 73 Mo. L. Rev. 561, 565
(2008).
Among the various categories is what is often called the
“public function test.”
Under this test, the government confers
“core,
—
sovereign
power
a
power,
in
other
words,
traditionally the exclusive prerogative of the [s]tate.”
States v. Day, 591 F.3d 679, 686 (4th Cir. 2010).
that
is
United
“In order to
find state power, the function served by the private group must be
that which is traditionally and exclusively reserved to the state;
the mere fact that the public is benefitted by a private action is
insufficient. The Supreme Court has found exclusive state power to
9
be a very narrow category.”
Brown, Less is More: Decluttering the
State Action Doctrine, 73 Mo. L. Rev. 561, 565 (2008).
The Supreme Court has expressly left open the question of
whether and under what circumstances private police officers may be
said to perform a public function for purposes of § 1983.
See
Flagg Bros., 436 U.S. at 163. Moreover, the United States Court of
Appeals for the Fourth Circuit has not directly addressed the issue
presented in this case.
Although plaintiff Fuller cites Austin v.
Paramount Parks, Inc., 195 F.3d 715 (4th Cir. 1999), the Fourth
Circuit expressly stated that the question as to whether the
defendant, an amusement park special police officer, was a state
actor was “a thorny one, but one which [the Court] need not decide
here because [plaintiff’s] clear failure to show that an official
policy or custom of [defendant] was the moving force behind
[plaintiff’s] [ ] arrest.”
Id. at 727.
For purposes of deciding
that case, the Court assumed without holding that defendant was a
state actor, since the Court concluded that defendant did not have
an official policy or custom.
Id.
However, the Fourth Circuit has addressed whether private
security guards could be liable as state actors in Day.
In Day,
the defendants were armed private security guards of an apartment
complex, with the power of arrest pursuant to Virginia Code
§ 9.1-138, et seq.
Day, 591 F.3d at 681.
Ultimately, the Court
found that the private security guards were not state actors.
at 684.
Id.
In that case, the Court first addressed whether there was
10
an agency relationship between the government and the officers.2
Id. at 684-85.
First, the Court addressed the district court’s
view that because Virginia regulates armed security officers and
because they have the power to make certain arrests, Virginia
affirmatively encouraged the challenged conduct of the defendants.
Id.
The Fourth Circuit, contrary to the district court’s finding,
found that, with respect to the first factor, the regulatory scheme
merely permitted the officers to arrest the defendant, and did not
require or encourage an arrest or any other complained-of action.
Id.
Because the first factor to establish an agency relationship
was not met, the Fourth Circuit stated that the defendant’s private
action would not be considered public action.
Circuit
also
addressed
the
public
function
Id.
test
The Fourth
and
whether
Virginia’s conferral of arrest powers on the officers was enough to
render them de facto police.
Id.
Specifically, the Court stated:
even [if] plenary arrest authority alone could transform
a private individual into a state actor, [the defendants]
did not possess the same power to make warrantless
arrests afforded to Virginia police officers . . .
Virginia authorizes an armed security officer ‘to effect
an arrest for an offense occurring . . . in his
presence.’ Va. Code. Ann. § 9.1-146 (emphasis added).
The Commonwealth empowers police officers, by contrast,
to ‘arrest, without a warrant, any person who commits any
crime in the presence of the officer and any person whom
he has reasonable grounds or probable cause to suspect of
having committed a felony not in his presence.’
Id.
§ 19.2-81 (emphasis added).
Indeed, not only is the
2
An agency relationship requires the following elements: (1)
the government knew of or acquiesced in the private individual’s
challenged conduct; and (2) the private individual intended to
assist law enforcement or had some other independent motive. Day,
591 F.3d at 685-86.
11
arrest
power
of
armed
security
officers
more
circumscribed than that of police officers, but it is
also essentially the same as that of any private citizen.
Day, 591 F.3d at 688-89.
The Court assumed without deciding
whether plenary arrest authority would be sufficient to transform
Id. at 688.
a private individual into a state actor.
Moreover,
the Court distinguishes Day from Rodriguez v. Smithfield Packing
Co., 338 F.3d 348, 354-55 (4th Cir. 2003), where the Court had
previously found a private plant security official could be held
liable for his conduct as a state actor.
The Court, stated that
“the private party was operating in his official role as an
auxillary deputy sheriff, served under the direction of and in
concert with the Sheriff’s Department, and was invested with the
full panoply of powers afforded to full-time deputies, including,
but not limited to, the power to arrest.”
Day, 591 F.3d at 688
(internal quotation marks omitted).
Importantly, the Sixth and Seventh Circuit Court of Appeals
have addressed factual circumstances that are analogous to the
facts presented in this civil action.
The Seventh Circuit held
that private police officers licensed to make arrests could be
state actors under the public function test.
Payton v. Rush-
Presbyterian, 184 623, 627-30 (7th Cir. 1999).
The Court found
that the defendants’ status as on-duty special police officers,
licensed by the City of Chicago, enjoyed “virtually the same power
as public police officers.”
Id. at 629.
The defendants in Payton
operated under an ordinance which provided that licensed special
12
police officers “shall possess the powers of the regular police
patrol at the places for which they are respectively appointed or
in the line of duty for which they are engaged.”
Id. at 625
(quoting Chicago City Code § 4-340-100 (1993)).
This broad delegation of power distinguished Payton from an
earlier case, Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir. 1996),
in which the Seventh Circuit had held that a private security guard
endowed with more limited police-type powers was not a state actor.
In Wade, the defendant was permitted to carry a handgun and use
deadly force in self-defense, but could arrest someone only for
“trespass pending the arrival of the police” and could exercise
these powers only in the lobbies of the properties where he worked.
Id. at 906.
The defendant was held not to be a state actor because
“none of the these powers had been exclusively reserved to the
police — citizen’s arrests and the rights to carry handguns and use
them in self-defense are available to individuals outside of the
law enforcement community.”
Payton, 184 F.3d at 629 (citing Wade,
83 F.3d at 906).
Similarly, the Sixth Circuit held that a private police
officer licensed to make arrests could be a state actor as a matter
of law. Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 640 (6th
Cir. 2005).
The Court found that the officer’s capacity as an on-
duty and state licensed private security police officer, including
arrest power, made him liable as a state actor.
Id.
The defendant
in Romanski operated under a statute which vested private security
13
officers with full arrest authority on the entirety of their
employer’s premises.
Id. at 639.
The Sixth Circuit found that the facts in Romanski were
analogous to the facts in Payton.
The Romanski court explained:
it is undisputed that [the defendant] (and some of her
colleagues) were private security police officers
licensed under M.C.L. § 338.1079. This means that [the
defendant’s] qualifications for being so licensed were
vetted by Michigan’s department of state police, [ ] and
that [the defendant] was subject to certain statutes
administered by that department . . . [The defendant]
‘ha[d] the authority to arrest a person without a warrant
as set forth for public peace officers . . .’ M.C.L.
§ 338.1080.
One consequence of [the defendant’s]
possession of this authority . . . at all times relevant
to this case, [is that the defendant] was a state actor
as a matter of law.
Id. at 638.
Both cases highlight the distinction between private actors
exercising powers traditionally, but not exclusively reserved to
the state, and cases in which a private actor exercises a power
exclusively reserved to the state, such as police power.
See Day,
591 F.3d at 687 (“Where private security guards are endowed by law
with plenary police powers such that they are de facto police
officers, they may qualify as state actors under the public
function test.”) (quoting Romanski, 428 F.3d at 637).
“[W]hen the
state delegates a power traditionally reserved to it alone — the
police power — to private actors in order that they may provide
police services to institutions that need it, a plaintiff’s ability
to claim relief under § 1983 [for abuses of that power] should be
14
unaffected.”
Romanski, 428 F.3d at 635 (internal quotation marks
omitted).
This Court finds that this case falls on the Payton/Rodriguez
side of the line for the following reasons:
Virginia Code § 9.1-101 defines a “private police department,”
such as the one at Carilion Clinic as:
any police department, other than a department that
employs police agents under the provisions of § 56-353,
that employs private police officers operated by an
entity authorized by statute or an act of assembly to
establish a private police department or such entity’s
successor in interest, provided it complies with the
requirements set forth herein. No entity is authorized
to operate a private police department or represent that
it is a private police department unless such entity has
been authorized by statute or an act of assembly or such
entity is the successor in interest of an entity that has
been authorized pursuant to this section, provided it
complies with the requirements set forth herein. The
authority of a private police department shall be limited
to real property owned, leased, or controlled by the
entity and, if approved by the local chief of police or
sheriff, any contiguous property; such authority shall
not supersede the authority, duties, or jurisdiction
vested by law with the local police department or
sheriff’s office including as provided in §§ 15.2-1609
and 15.2-1704. The chief of police or sheriff who is the
chief local law-enforcement officer shall enter into a
memorandum of understanding with the private police
department that addresses the duties and responsibilities
of the private police department and the chief
law-enforcement officer in the conduct of criminal
investigations. Private police departments and private
police officers shall be subject to and comply with the
Constitution of the United States; the Constitution of
Virginia;
the
laws
governing
municipal
police
departments, including the provisions of §§ 9.1-600
[(pertaining to civilian protection in cases of police
misconduct and setting forth minimum standards)],
15.2-1705 [(listing the minimum qualifications for the
chief of police and all police officers of any locality,
all deputy sheriffs and jail officers, and all law
enforcement officers, and waiver requirements)][, 15.21706 (pertaining to required certification through
15
training for all law-enforcement officers, and waiver of
requirements), 15.2-1707 (explaining decertification of
law enforcement officers),] 15.2-1708 [(pertaining to
notice of decertification)], 15.2-1719 [(describing
disposal of unclaimed property in possession of sheriff
or police)], 15.2-1721 [(explicating disposal of
unclaimed firearms or other weapons in possession of
sheriff or police)], and 15.2-1722 [(delineating certain
records to be kept by sheriffs and chiefs of police)];
and any regulations adopted by the Board that the
Department designates as applicable to private police
departments. Any person employed as a private police
officer pursuant to this section shall meet all
requirements, including the minimum compulsory training
requirements, for law-enforcement officers pursuant to
this chapter. A private police officer is not entitled
to benefits under the Line of Duty Act (§ 9.1-400 et
seq.) or under the Virginia Retirement System, is not a
“qualified law enforcement officer” or “qualified retired
law enforcement officer” within the meaning of the
federal Law Enforcement Officers Safety Act, 18 U.S.C.
§ 926B et seq., and shall not be deemed an employee of
the Commonwealth or any locality. An authorized private
police department may use the word “police” to describe
its sworn officers and may join a regional criminal
justice
academy
created
pursuant
to
Article
5
(§ 15.2-1747 et seq.) of Chapter 17 of Title 15.2. Any
private police department in existence on January 1,
2013, that was not otherwise established by statute or an
act of assembly and whose status as a private police
department was recognized by the Department at that time
is hereby validated and may continue to operate as a
private police department as may such entity’s successor
in interest, provided it complies with the requirements
set forth herein.
Va. Code Ann. § 9.1-101 (West 2018).
Carilion Clinic Personnel Directive 3.01 explains:
The authority vested in sworn personnel comes
§ 15.2-17043 of the Code of Virginia and is
from
made
3
Virginia Code § 15.2-1704 provides:
Powers and duties of a police force:
A.
The police force of a locality is hereby invested
with all the power and authority which formerly belonged
16
applicable under § 19.2-12 et seq. of the Code of
Virginia. Police officers shall have the authority to:
a.
Prevent and detect crime.
b.
Apprehend criminals.
c.
Safeguard life and property.
d.
Preserve peace and the enforcement of
state and local laws, regulations, and
ordinances.
e.
Execut[e] [ ] temporary detention orders
and emergency custody orders and any other
powers granted to law enforcement offices in
§ 37.1-808 and § 37.2 809 of the Code of
Virginia.
f.
Serve orders of protection.
g.
Execute all warrants or summons as may be
placed in his hands by any magistrate for the
locality and to make due return thereof.
ECF No. 52-12 at 2-3.
to the office of constable at common law and is
responsible for the prevention and detection of crime,
the apprehension of criminals, the safeguard of life and
property, the preservation of peace and the enforcement
of state and local laws, regulations, and ordinances.
B.
A police officer has no authority in civil matters,
except (i) to execute and serve temporary detention and
emergency custody orders and any other powers granted to
law-enforcement officers in § 16.1-340, 16.1-340.1,
37.2-808, or 37.2-809, (ii) to serve an order of
protection pursuant to §§ 16.1-253.1, 16.1-253.4, and
16.1-279.1, (iii) to execute all warrants or summons as
may be placed in his hands by any magistrate serving the
locality and to make due return thereof, and (iv) to
deliver, serve, execute, and enforce orders of isolation
and quarantine issued pursuant to §§ 32.1-48.09,
32.1-48.012, and 32.1-48.014 and to deliver, serve,
execute, and enforce an emergency custody order issued
pursuant to § 32.1-48.02. A town police officer, after
receiving training under subdivision 8 of § 9.1-102, may,
with the concurrence of the local sheriff, also serve
civil papers, and make return thereof, only when the town
is the plaintiff and the defendant can be found within
the corporate limits of the town.
Va. Code Ann. § 15.2-1704 (West 2010) (emphasis added).
17
This directive, as well as the Virginia Code, separately
address security officers and the relevant provisions that guide
their duties.4
Moreover, in the Memorandum of Understanding, the Roanoke
Police Department and the Carilion Clinic Police and Security
Services Department agreed that Carilion Clinic police may use:
Police Department personnel, equipment and materials when
needed in the investigation of any felony criminal sexual
assault enumerated in § 18.2-67.5:2 subsection B an
§ 18.2-67.5:3 subsection B, Code of Virginia 1950 as
amended, medically unattended death occurring on property
owned or controlled by the institution of higher
education or any death occurring on property owned or
controlled by the institution of higher education or any
death resulting from an incident occurring on such
property. All other investigations will be conducted by
the [Carilion Clinic police] who will function as the
primary investigative entity on all other investigations
occurring on property owned, leased, or controlled by
Carilion Clinic.
ECF No. 52-10 at 1 (emphasis added).
The power that is granted to Carilion Clinic police, including
full arrest power on the premises of Carilion Clinic, is a power
traditionally reserved to the state alone.
Screws v. United
States, 325 U.S. 91, 109-10, 65 S. Ct. 1031, 89 L.Ed. 1495 (1945)
(holding that defendants who were officers of the law and who had
the power to arrest under state law were acting “under color of”
state law).
There are no real constraints on defendants’ use of
that power, so long as they remain on authorized premises, and so
4
The Virginia Code has a separate article that pertains to
private security services businesses, such as Sections 9.1-138,
9.1-139 (C, F), 9.1-141(C)(6), and 9.1-146.
Those were the
provisions addressed in Day.
18
long as their authority does “not supersede the authority, duties,
or jurisdiction vested by law with the local police department or
sheriff’s
office
15.2-1704.”
including
Va.
Code
Ann.
as
provided
§
9.1-101.
in
§§
In
15.2-1609
light
of
and
these
provisions, and considering the fact that defendants Chief Lugar
and Captain Donelson were on-duty during all times relevant to this
action, this Court finds that defendants are state actors for
purposes of § 1983.
In drawing this conclusion, this Court has focused on the
specific powers that defendants have in their capacities as on-duty
private police, especially the power to arrest, which does not
appear to have the limitations that private security are subjected
to, as explained in Day. The power to arrest is “traditionally the
exclusive prerogative of the state.”
Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 353, 95 S. Ct. 449, 42 L.Ed.2d 477
(1974).
Moreover, the fact that defendants did not always remain on
premises at all times relevant to this case does not change the
outcome of whether or not defendants may be liable as state actors.
As indicated in Keller v. District of Columbia, 809 F. Supp. 432,
433 (E.D. Va. 1993), a person can act “under color of” state law
even if the act violates state law.
“The term under color of state
law includes not only legitimate exercises of power, but also
[m]isuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
19
of state law . . .”
Id. (internal quotation marks omitted).
“It
is clear that under ‘color’ of law means under ‘pretense’ of law .
. .
Acts of officers who undertake to perform their official
duties are included whether they hew to the line of their authority
or overstep it.”
Screws, 325 U.S. at 110.
As in Keller, this case
raises the issue of whether the defendants’ conduct that occurred
off premises, as alleged in paragraphs 18 to 25 of the amended
complaint, are classified as “personal pursuits” or “oversteps” in
the exercise of their authority.
Keller, 809 F. Supp. at 435.
Plaintiff relies primarily on Keller to support his argument
that the facts that he has alleged in his amended complaint support
liability under § 1983.
See ECF No. 52 at 6-7.
In Keller,
plaintiff and District of Columbia officers were driving in the
same direction in Arlington County, and the officers were operating
marked police department cruisers.
Id. at 433.
After being
stopped, plaintiff was confronted by officers who had drawn and
pointed their weapons at him, handcuffed him, and pushed him on the
trunk
of
his
car.
Id.
at
434.
Denying
dismissal
of
the
plaintiff’s § 1983 action against defendants, the Eastern District
of Virginia held that the officers were acting “under color of”
state law, even though they were acting in a jurisdiction where
they did not have actual authority.
Id. at 435.
The Court in
Keller compared the situation to the facts in Wirth v. Surles, 562
F.2d 319, 321 (4th Cir. 1977), cert. denied, 435 U.S. 933, 98 S.
Ct. 1509, 55 L.Ed.2d 531 (1978), where the Fourth Circuit held that
20
an officer acts under color of law when crossing a state line to
obtain custody of a suspect, and returns the suspect without
extradition to the state where the officer serves, “even when the
Keller, 809 F.
challenged acts constitute an abuse of authority.”
Supp. at 435.
Defendants state that this case is more analogous to Robinson
v. Davis, 447 F.2d 753, claiming the officers in Keller were
performing a function authorized by state law, while in the present
case, the officers were not performing any duty imposed on them by
state law.
ECF No. 54 at 2.
This argument is not persuasive.
Carilion Clinic police have clear authority as granted by statute
and as outlined in the memorandum of understanding.
See Va. Code
Ann. § 15.2-1704; ECF No. 52-12 at 12.
Moreover, although the facts in this case demonstrate that the
officers were wearing badges when going to plaintiff Fuller’s house
and were armed (see ECF Nos. 52-9 at 10; 52-6 at 1), even if there
was an absence of such outward indicia of state authority, a police
officer may still act “under color of” state law.
Supp. at 436.
Keller, 809 F.
Since this Court has determined that the defendants
are state actors for actions taken on premises, this Court now
finds that the defendants may also be liable as state actors for
actions taken off premises as well.
As Keller indicated:
Congress has chosen to deter unconstitutional exercises
of police authority, such as that alleged in the instant
case, by making conduct subject to monetary liability
under § 1983.
When a police officer, in arresting a
person, deprives that person of constitutional rights,
§ 1983 liability cannot be made to depend on whether the
21
officer actually had authority to arrest that individual.
It is the nature of the act that triggers liability, not
the location of the victim.
Id. at 437.
Therefore, this Court grants plaintiff Fuller’s request for
this Court to reconsider its initial finding that any actions by
Carilion Clinic police outside the real property owned, leased, or
controlled by Carilion Clinic were not authorized by Virginia Code
§ 9.1-101 and would not be considered in analyzing plaintiff’s
§ 1983 claim.
Since the counts in the plaintiff’s second amended complaint
name Carilion Clinic, as well as individual defendants Chief Lugar
and Captain Donelson, this Court will now proceed to analyze
Carilion Clinic’s liability, as well as the individual defendants’
liability.
B.
Carilion Clinic is not liable under § 1983.
Plaintiff Fuller has presented three theories as to why the
actions of Chief Lugar and Captain Donelson should be imputed to
Carilion
Clinic.
Specifically,
plaintiff
Fuller
claims
that
Carilion Clinic should be liable due to: (1) Chief Lugar’s, or
Captain
Donelson’s,
decisions
and
omissions
as
policymakers,
specifically by authorizing plaintiff Fuller’s arrest and transport
outside Carilion Clinic’s jurisdiction; (2) Chief Lugar’s failure
to supervise the police interrogation of plaintiff Fuller; and (3)
its established policy of regulating perceived employee misconduct
under the guise of police investigation of potential or possible
22
criminal activity.
ECF No. 52 at 16-25.
Each theory will be
addressed separately in turn.
1. Chief Lugar’s, or Captain Donelson’s, alleged authorization
of plaintiff Fuller’s arrest and transport outside Carilion Clinic
jurisdiction does not establish Carilion Clinic’s liability under
§ 1983 based on the theory that there was an established policy or
custom.
A plaintiff may establish the existence of a policy or custom
in several ways:
(1) through an express policy, such as a written
ordinance or regulation; (2) through the decisions of a
person with final policymaking authority; (3) through an
omission, such as a failure to properly train officers,
that ‘manifest[s] deliberate indifference to the rights
of citizens;’ or (4) through a practice that is so
‘persistent and widespread’ as to constitute a ‘custom or
usage with the force of law.’
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter
v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)).
It is unclear whether plaintiff Fuller rests his theory that
Carilion Clinic should be liable based only on his contention that
Carilion Clinic has a policy or custom due to Chief Lugar’s, or
Captain Donelson’s, decisions as final policymakers.
Plaintiff
Fuller also seems to be making an argument that Carilion Clinic
should be liable based on the theory that a policy or custom is
established due to a practice that is so persistent and widespread
as
to
constitute
a
custom
or
usage
with
the
force
of
law.
Therefore, this Court will analyze plaintiff Fuller’s claims under
both potential bases.
23
a. The decisions of Chief Lugar, or Captain Donelson, do
not establish Carilion Clinic’s liability under § 1983 based on the
theory that they are persons with final policymaking authority.
Liability
may
be
imposed
for
a
single
policymaker under appropriate circumstances.
decision
by
a
Pembaur v. City of
Cincinnati, 475 U.S. 469, 477, 106 S. Ct. 1292, 89 L.Ed.2d 452
(1986).
However, not every decision by an officer leads to
automatic § 1983 liability. Liability incurs where the policymaker
has final authority to establish policy regarding the action that
was ordered.
“The fact that an official — even a policymaking
official — has discretion in the exercise of particular functions
does not, without more, give rise to [entity] liability based on an
exercise of that discretion.”
Specifically,
power
to
Id. at 481.
make
policy
may
be
granted
by
legislative enactment or through delegation by someone who does
possess such authority.
Id. at 482.
“[W]hether an official had
final policymaking authority is a question of state law[,]” and
requires review of “the relevant legal materials, including state
and local positive law, as well as custom or usage having the force
of law.”
Id.; Jett v. Dallas Independent School Dist., 491 U.S.
701, 738, 109 S. Ct. 2702, 105 L.Ed.2d 598 (1989).
Although such principles of § 1983 liability were announced in
circumstances
involving
municipalities
or
other
governmental
bodies, “these principles are equally applicable to a private
corporation acting under color of state law when an employee
exercises final policymaking authority concerning an action that
24
allegedly causes a deprivation of federal rights.”
Austin, 195
F.3d at 729.
As
to
plaintiff
Fuller’s
first
theory,
plaintiff
Fuller
states:
Lugar made a policy decision whereby he authorized Janney
and Donelson to go outside Carilion’s jurisdiction and
perform police duties under color of state law. Lugar
erroneously believes that Carilion police have the
authority to engage suspects, conduct investigations,
interview witnesses, and take persons into custody
outside Carilion’s jurisdiction by a MOU [Memorandum of
Understanding] with the City of Roanoke. As the head of
the Carilion Police Department, Chief Lugar is
undoubtedly a policymaker.
ECF No. 52 at 17.
According to the Memorandum of Understanding, Carilion Clinic
complies with the policies of Carilion Clinic unless those policies
or procedures conflict with the Police Department while engaged in
an investigation that the Police Department is managing or handling
as the primary investigator.
ECF No. 52-10 at 4.
The person
designated as the Chief of Police at Carilion Clinic is also the
Director of Police/Security Services.
ECF No. 52-12 at 4.
The
Chief has the same authority granted to police officers, and is
responsible for the direction of all activities.
Id. at 3-4.
The
Chief “is responsible for the direction of all activities and shall
accomplish this through:” (1) orders (both written and oral),
policies,
directives,
guidelines,
guidance,
and
personal
leadership. Id. Although “[t]he Chief of Police may designate, or
at
his
discretion,
allow
supervisory
25
personnel
to
designate
temporary replacements to fulfill their duties during absences,”
captains “shall report to the Chief of Police.”
This
Court
believes
that
the
plaintiff
Id. at 4.
has
set
forth
sufficient evidence for this Court to find that Chief Lugar
possesses final authority with respect to issuing and utilizing
various mechanisms to preserve and maintain a secure environment at
Carilion Clinic.
However, Captain Donelson is not granted such
authority and is not a final policymaker.
The plaintiff has not
presented sufficient evidence that Chief Lugar delegated such
authority.
Moreover, “[w]hen a[n] [ ] official’s discretionary
action
subject
is
to
review
by
the
[entity’s]
authorized
policymakers, they have retained the authority to measure the
official’s conduct for conformance with their policies.”
Riddick
v. School Bd. of City of Portsmouth, 238 F.3d 518, 523 (4th Cir.
2000) (internal quotation marks omitted).
whether there is “final policy making.
is not just policy making . . .
can make policy . . .
The important issue is
The key here is final.
It
In other words, it is not just who
[I]t is ultimately in the scheme of things
who has the final say-so.”
Id.
Because Captain Donelson does not
possess such “final policy making authority,” his actions or
omissions could not constitute official policy.
The next issue is whether plaintiff Fuller has demonstrated
that Chief Lugar possesses final authority with respect to the
action ordered, namely, to engage suspects, conduct investigations,
interview
witnesses,
and
take
26
persons
into
custody
outside
Carilion’s jurisdiction.
Chief Lugar arguably does not possess
final authority to order Carilion Clinic police to act outside of
their
jurisdiction
since
prohibits such action.
Virginia
Code
§
9.1-101
expressly
Justice White’s concurring opinion in
Pembaur indicated that just because an official has final decision
making authority, does not mean that those decisions could be
considered policy.
Pembaur, 475 U.S. at 486.
Justice White
explained that the authority to make decisions must be exercised in
light of state law.
Id.
“Where the controlling law places limits
on [ ] authority, [an official] cannot be said to have the
authority to make contrary policy.
Id.
But, as explained in
Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses,
Volume 1A § 7.15[B], pg. 7-112, n.549:
Justice White’s position [ ] overlooked the possibility
that there may exist a de facto municipal practice or
custom that is inconsistent with the letter of local law.
See City of St. Louis v. Praprotnik, 485 U.S. 112, 127,
130-31 (1988).
Moreover, because [ ] officials have
authority
to
act
only
in
accordance
with
the
Constitution, Justice White’s reasoning, followed to its
extreme, could lead to the conclusion that an
unconstitutional [entity] decision by a [ ] decision
maker can never represent [ ] policy and could never
provide a basis for imposing [entity] liability. This
would effectively overturn the holding in Monell that
[covered] entities are subject to § 1983 liability for
deprivations of federal rights resulting from the
enforcement of [entity] policy. Fortunately, no other
Justice has ever adopted Justice White’s position in
Pembaur. In addition, Justice White failed to refer to
his Pembaur concurrence in the Court’s subsequent
municipal liability decisions, City of Canton v. Harris,
489 U.S. 378 (1989), and City of St. Louis v. Praprotnik,
485 U.S. 112 (1988), perhaps indicating that he retreated
from the position he took in Pembaur.
27
Schwartz, Section 1983 Litigation: Claims and Defenses, Volume 1A
§ 7.15[B], pg. 7-112, n.549 (emphasis added).
However, the Supreme Court has unambiguously stated that
§ 1983 does not have a “gaping hole . . . that needs to be filled
with the vague concept of de facto final policymaking authority
. . .
[A]d hoc searches for officials possessing such de facto
authority would serve primarily to foster needless unpredictability
in the application of § 1983.
Praprotnik, 485 U.S. at 131
(internal quotation marks omitted).
Therefore, the critical question presented is whether Chief
Lugar established policy or exercised discretion in enforcing
existing policy.
Applying this distinction is difficult since it
raises the issue of whether an official’s exercise of discretion
that
departs
from
established
policy,
or
state
law
in
this
instance, is a mere improper exercise of discretion, or an act
constituting the establishment of a policy.
Chief Lugar’s decision to permit Investigator Janney and
Captain Donelson to go to plaintiff Fuller’s house and ask whether
he would come to the Carilion Clinic police station could be an
exercise of the final decision making authority granted to Chief
Lugar by statute and in the Memorandum of Understanding to set
guidelines, and practices for other police to maintain peace.
However, ultimately, this Court does not need to resolve this issue
because, as further explained in Part III(B)(1)(c), plaintiff
Fuller has failed to meet the causation element of his claim.
28
b. The decisions of Chief Lugar, or Captain Donelson, do
not establish Carilion Clinic § 1983 liability based on the theory
that permitting Carilion Clinic police to work off premises is so
‘persistent and widespread’ as to constitute a ‘custom or usage
with the force of law’.
In some cases, an entity may have a formal rule, such as
remaining on certain premises, that is being ignored to the point
that a custom or practice is in conflict with it.
situations,
the
custom
or
practice
represents
In such
the
policy.
Scwhartz, Section 1983 Litigation: Claims and Defenses, Volume 1A,
§ 7.16, pg. 7-147.
As stated in Monell v. Department of Soc. Servs., 436 U.S.
658, 691, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978):
Congress included customs and usages [in § 1983] because
of the persistent and widespread discriminatory practices
of state officials . . .
Although not authorized by
written law, such practices could well be so permanent
and well settled as to constitute ‘custom or usage’ with
the force of law.
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.
Ct. 1598, 26 L.Ed.2d 142 (1970)). This theory of liability is well
settled.
“[T]here must be ‘numerous particular instances’ of
unconstitutional
practice.”
conduct
in
order
to
establish
a
custom
or
Lytle v. Doyle, 326 F.3d 463, 470 (4th Cir. 2003).
Here, plaintiff Fuller asserted that it was a regular practice
or custom for Chief Lugar to permit investigations and arrest
outside of Carilion Clinic premises.
First, plaintiff Fuller has
not shown the “sort of widespread and permanent practice necessary
to establish a custom” (id. at 473). Second, Chief Lugar’s alleged
decision
to
allow
Carilion
Clinic
29
police
off
premises
is
a
potential violation of Virginia law,5 and does not in and of itself
demonstrate the sort of conduct addressed by § 1983, deprivations
due to violations of federal constitutional or statutory rights.
See Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L.Ed.2d 433
(1979); Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L.Ed.2d 405
(1976).
Therefore, plaintiff Fuller cannot use this theory to
establish § 1983 liability upon Carilion Clinic.
c. Plaintiff has failed to demonstrate that the policy
or custom has a close causal relationship to the violation of
plaintiff’s federal rights, here unreasonable seizure under the
Fourth Amendment of the United States Constitution.
Plaintiff Fuller must also demonstrate that a single decision,
or
custom
or
usage,
has
a
close
causal
relationship
to
the
violation of plaintiff’s federal rights, here, unreasonable seizure
under the Fourth Amendment of the United States Constitution. “The
causation element is applied with especial rigor when the [ ]
policy or practice is itself not unconstitutional, for example,
when the [ ] liability claim is based upon inadequate training,
supervision, and deficiencies in hiring.”
Schwartz, Section 1983
Litigation: Claims and Defenses, Volume 1A, § 7.12[B], pg. 7-71.
Although whether a plaintiff has established the required
causal link is normally a question of fact to be determined by a
jury based on the particular circumstances (see id. at 6-12), the
Fourth Circuit Court of Appeals has stated that, “whether the
5
This Court abstains from ruling as to whether such a policy
constitutes a violation under Virginia law; however, the Court will
assume that such a policy is a violation for purposes of addressing
this issue.
30
evidence is sufficient to create a jury issue is solely a question
of law to be determined by the [C]ourt.”
Estate of Cuffee ex rel.
Cuffee v. Newhart, 498 F. App’x 233, 236 (4th Cir. 2012) (citing
Charleston Area med. Ctr., Inc. v. Blue Cross & Blue Shield Mut. of
Ohio, Inc., 6 F.3d 243, 247 (4th Cir. 1993)).
Plaintiff
Fuller
must
specifically
demonstrate
that
enforcement of the policy or practice, regardless of the theory
utilized,
was
closely
related
to
the
violation
of
plaintiff
Fuller’s federally protected right — here, the Fourth Amendment’s
protection against unreasonable seizures of persons.
“Supreme
Court decisions have described the requisite causation as ‘moving
force,’ ‘direct causal link,’ ‘closely related,’ and ‘actually
caused.’”
Id.
The Fourth Circuit has provided some clarification
on proving causation, stating:
a plaintiff cannot rely upon scattershot accusations of
unrelated constitutional violations to prove either . . .
indiffere[nce] to the risk of [plaintiff’s] specific
injury or that it was the moving force behind
[plaintiff’s] deprivation. Instead, a “plaintiff must
demonstrate that a[n] [entity] decision reflects
deliberate indifference to the risk that a violation of
a particular constitutional or statutory right will
follow the decision.” . . . Thus, [ ] liability will
attach only for those policies or customs having a
“specific deficiency or deficiencies . . . such as to
make the specific violation almost bound to happen,
sooner or later, rather than merely likely to happen in
the long run.” . . . The challenged policy or custom
cannot merely be the abstract one of violating citizens’
constitutional rights.
Carter, 164 F.3d 215 (4th Cir. 1999) (emphasis added).
On the record before this Court, plaintiff Fuller’s federal
claim
is
that
Carilion
Clinic
31
police
subjected
him
to
an
unreasonable seizure.
The bulk of plaintiff Fuller’s arguments
pertain to how Carilion Clinic should be held liable based on a
policy or custom of allowing police off-premises, and are not
relevant to plaintiff’s alleged federal constitutional deprivation.
According to the deposition transcript from Chief Lugar, Chief
Lugar asked Investigator Janney to “go in and ask [plaintiff
Fuller] if he would be willing to come [to Carilion Clinic] and
talk to [Carilion Clinic police].”
ECF No. 52-5 at 6.
Moreover,
Chief Lugar also stated that Carilion Clinic police do not need
“[a]uthority to just talk to someone [or] [t]o request them to come
and talk to [Carilion Clinic police] . . .
If [Carilion Clinic
police] arrest, [they] have to have legal authority to do so and
[there are] jurisdictional issues. But interaction and just going,
talking to someone, there is no such thing as an authority or right
or jurisdiction[al] authority to be there.”
Id. at 8.
Even if
considered a policy or custom under § 1983 jurisprudence, which
this Court does not believe to be the case, Chief Lugar’s alleged
decision to allow Carilion Clinic police to ask whether plaintiff
could come to the Carilion Clinic police station does not establish
a link to the allegedly unlawful seizure that occurred at plaintiff
Fuller’s home.
2. Chief Lugar’s alleged failure to supervise the police
interrogation of plaintiff Fuller does not establish Carilion
Clinic’s liability under § 1983 based on the theory that there was
an established policy or custom.
Plaintiff Fuller states:
32
Chief Lugar had enough knowledge of Fuller’s documented
mental disability and anxiety that he either knew or
should have known that Fuller would likely have a
reasonable belief that he was being arrested and taken
into custody. Lugar took no precautions to make sure
that Fuller understood his constitutional rights, or that
Fuller was accompanied by a family member or had counsel
present.
Lugar did not advise or warn Janney or
Donnelson to approach Fuller in a non-confrontational
manner. Lugar did not have any portion of the police
interview at Carilion recorded. Chief Lugar knew of a
fire in the rehab on the evening of September 14th, but
did nothing about it until more than 12 hours later after
he came to work. He then ignored virtually every factual
assertion in Crotts’ report . . . Instead Chief Lugar
claims it was his understanding that there was an urgent
situation with a homeless person on the loose setting
fires within Carilion Clinic and he did not know that
Fuller suffered from anxiety and Asperger’s syndrome, but
that Fuller was simply a witness.
Chief Lugar’s
assessment not only strains credulity, but having been
provided with the factual information by Officer Crotts
and overseeing the investigation of the incident he is
charged with the responsibility for insuring that the one
and only witness/suspect has his constitutional rights
protected. As a hands on Chief who likes to stay abreast
of investigations, Chief Lugar failed to follow accepted
standards of law enforcement as well as the Carilion
Police Personnel Directives 3.01 or 4.13. Lugar also
failed to advise Janney and Donelson of the standards
that should have been followed, and such failure
constitutes an omission to enforce established police
standards.
As a result of Chief Lugar’s omissions,
Fuller was deprived of his civil rights.
ECF No. 52 at 18-19.
Plaintiff Fuller alleges claims not only against Chief Lugar,
but also against Carilion Clinic itself.
“The questions of
[entity] liability and a supervisory official’s liability are
separate
and
distinct
questions.”
Schwartz,
Section
1983
Litigation: Claims and Defenses, Volume 1A, § 7.19[B], pg. 7-232.
For
supervisor
liability,
the
main
question
is
whether
the
supervisor’s own conduct subjects the plaintiff to a deprivation of
33
a federally protected right.
Id.
On the other hand, entity
liability, depends on whether there was enforcement of a policy,
practice, or decision of a policymaker that causes a deprivation of
plaintiff’s federally protected right.
Id.
“A claim asserted
against a supervisory official in both her individual and official
capacities can serve as the basis for imposing both personal
liability
against
official-capacity
policymaker.”
the
supervisor
claim)
if
the
and
[entity]
supervisor
is
liability
a[n]
(the
[entity]
Id. at 7-232.1-7-233.
This Court will first address Carilion Clinic’s liability
under a failure to supervise theory and will assess Chief Lugar’s
potential liability under such a theory in Section III(C)(1) of
this memorandum opinion.
The Fourth Circuit has recognized that a policy can be
inferred from omissions.
(4th Cir. 1983).
omissions
are
Wellington v. Daniels, 717 F.2d 932, 935
However, the court clearly stated that “such
actionable
only
if
they
constitute
‘tacit
authorization’ of or ‘deliberate indifference’ to constitutional
injuries.”
Id.
Most relevant to this particular theory of
failure to supervise, the Fourth Circuit has recognized that “a[n]
[entity] policy of authorizing or condoning police misconduct can
be inferred where the [entity] has been grossly negligent in the
supervision and training of its police force.”
The court then
proceeded to explain that liability based on failure to supervise
may be incurred “only in those situations in which there is a
34
history of widespread abuse . . .
A single act or isolated
incidents
to
are
normally
insufficient
establish
inaction upon which to predicate § 1983 liability.”
supervisory
Once
Id.
plaintiff has shown that there is a policy, then the plaintiff must
demonstrate a direct causal link “where the policy commands the
injury of which the plaintiff complains.”
Id.
Since Chief Lugar is responsible for the implementation of
Carilion Clinic police department practices and procedures, his
alleged acts and omissions likely reflect entity policy.
In the
instant case, the alleged entity policy stems from Chief Lugar’s
alleged failure to: (1) take precautions to assure that plaintiff
Fuller
understood
his
constitutional
rights;
(2)
assure
that
plaintiff Fuller was accompanied by a family member or had counsel
present;
(3)
advise
or
warn
Investigator
Janney
or
Captain
Donnelson to approach Fuller in a non-confrontational manner; (4)
record any portion of the police interview at Carilion Clinic; (5)
follow accepted standards of law enforcement as well as the
Carilion Clinic Police Personnel Directives 3.01 or 4.13; and (6)
advise Investigator Janney and Captain Donelson of the standards
that should have been followed.
Plaintiff Fuller asserted that
such failures constitute omissions to enforce established police
standards.
The evidence does not demonstrate that Chief Lugar knew that
plaintiff Fuller did not want to go with Investigator Janney and
Captain Donelson to the Carilion Clinic meeting room (see ECF No.
35
52-5 at 10), or that Chief Lugar knew that the meeting was not
recorded (see ECF No. 52-5 at 10).
However, plaintiff Fuller has
only pointed to this single incident on which to predicate Carilion
Clinic’s liability based on a theory of failure to supervise.
Viewing the evidence in light most favorable to plaintiff Fuller,
there is simply insufficient evidence to support a finding that
Carilion Clinic has a history of widespread abuse.
Moreover, the
plaintiff
evidence
has
failed
to
provide
sufficient
of
encouragement by Chief Lugar to perpetuate such alleged misconduct.
Therefore, Chief Lugar's alleged failure to supervise the
police
interrogation
of
plaintiff
Fuller
does
not
establish
Carilion Clinic’s liability under § 1983 based on the theory that
there was an established policy or custom.
3. Carilion Clinic’s alleged policy of regulating perceived
employee misconduct under police investigations does not establish
Carilion Clinic’s liability under § 1983 based on the theory that
there was an established policy or custom.
In support of this theory, plaintiff Fuller asserted that:
while Carilion’s human resources department may not
specifically direct the police department to conduct an
investigation, there is clearly a custom or practice
whereby the police makes investigative material, obtained
under color of law, available to human resources
personnel for use in their employment decisions. Judging
from Chief Lugar’s testimony, human resources doesn’t
have to ask for the police investigative material, it is
automatically given.
ECF No. 52 at 22.
Plaintiff Fuller asserted that it was a regular practice or
custom for the Police Department to conduct investigations on
behalf of the Human Resources Department.
36
This Court extends and
will apply the rules iterated in Section III(B)(1)(b) of this
memorandum opinion.
Even if that were true, that is perhaps a
violation of Virginia law6 or Carilion Clinic policy, and does not
in and of itself demonstrate the sort of conduct addressed by
§ 1983 — deprivations due to violations of federal constitutional
or statutory rights.
the
“sort
of
Plaintiff Fuller has also not demonstrated
widespread
establish a custom.”
and
permanent
practice
necessary
to
Randall, 302 F.3d at 206.
Moreover, as a matter of causation, plaintiff Fuller has
failed to provide sufficient evidence for this Court to find that
Carilion Clinic’s policy or custom of allegedly allowing Carilion
Clinic police to investigate issues that are to be addressed by the
Human Resources Department was the cause of plaintiff Fuller’s
deprivation of constitutional rights.
In Carter, 164 F.3d at
218-19, the Fourth Circuit found that the plaintiff’s evidence of
previous incidents of “excessive force and the discouragement of
citizen complaints, ranges far afield of [the plaintiff’s] own
alleged constitutional injuries [and] is insufficiently precise to
establish . . . a [ ] policy or custom that could have caused [the
plaintiff’s specific injuries.”
Similarly, plaintiff Fuller’s
evidence of prior instances of the alleged involvement of Carilion
Clinic police in civil matters does not establish “a direct causal
6
This Court will abstain from ruling as to whether such a
policy would be a violation under Virginia law; however, the Court
will assume that such a policy is a violation for purposes of
addressing this issue.
37
link[,]” to plaintiff’s alleged deprivation.
City of Canton, 489
U.S. at 385.
C. Chief Lugar is not liable under § 1983 as a supervisor, or
otherwise. However, Captain Donelson may be liable under § 1983.
This Court now turns to an analysis of the liability of
defendants Chief Lugar and Captain Donelson.
1. Chief Lugar is not liable as a supervisory official, or
otherwise.
“[L]ike any other official sued under § 1983, supervisory
officials may be found liable on the basis of their own personal
involvement in the wrongful conduct, or for setting the wheels of
the unconstitutional conduct in motion.”
Schwartz, Section 1983
Litigation: Claims and Defenses, Volume 1A, § 7.19[C], pg. 7-249.
A supervisor may not be held liable under § 1983 based on the
theory of respondeat superior.
Id. at 7-231.
The Fourth Circuit
has held that in order to establish supervisory liability, the
following factors must be established:
(1) supervisor had actual or constructive knowledge that
subordinate was engaged in conduct posing pervasive and
unreasonable risk of constitutional injury suffered by
plaintiff;
(2)
supervisor’s
response
constituted
deliberate indifference to or tacit authorization of the
unconstitutional practices; and (3) an affirmative link
between
supervisor’s
inaction
and
plaintiff’s
constitutional injury.
Id. at 7-249 (emphasis added) (referencing Randall v. Prince
Georges County, 302 F.3d 188, 206 (4th Cir. 2002)); see also
Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014).
In
Randall, the Fourth Circuit further elaborated as to what each
prong requires stating that, under the first factor, “the conduct
38
engaged in by the supervisor’s subordinates must be ‘pervasive,’
meaning that the ‘conduct is widespread, or at least has been used
on several different occasions.’” Randall, 302 F.3d at 206 (citing
Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994)); see also Schwartz,
Section
1983
Litigation:
Claims
and
Defenses,
Volume
1A,
§ 7.19[C], pg. 7-249 (“The ‘courts have appropriately required
proof
of
multiple
instances
of
misconduct
before
permitting
supervisory liability to attach.’”) (quoting Randall, 302 F.3d at
206).
As to the second prong, a plaintiff must provide more
evidence than “a single incident or isolated incidents . . . for a
supervisor cannot be expected . . . to guard against the deliberate
criminal acts of his properly trained employees when he has no
basis upon which to anticipate the misconduct.”
Id. (quoting
Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)) (internal
quotation marks omitted).
A plaintiff may demonstrate deliberate
indifference “by showing a supervisor’s continued inaction in the
face of documented widespread abuses.”
Id. (internal quotation
marks omitted).
Plaintiff Fuller stated that Chief Lugar was aware of a fire
on September 14, 2017, but that Chief Lugar did not take action
until the next morning.
ECF No. 52 at 12.
In Chief Lugar’s
deposition transcript, Chief Lugar stated “[m]y understanding when
the report came in . . . [was] that a homeless individual had
entered our facility and a fire had been started, and that facility
is a locked facility.”
Id.
Moreover, plaintiff stated that Chief
39
Lugar read Officer Crotts’ report that included plaintiff Fuller’s
mental disabilities; however, plaintiff indicated that Chief Lugar
claimed he did not know the effects of Asperger’s syndrome. Id. at
15-16.
Plaintiff
contended
that
Chief
Lugar
then
met
with
Investigator Janney to assess what the next steps should be, and
that he then directed Investigator Janney to go off site.
at 16.
Chief
Id.
Citing the deposition transcript, plaintiff stated that
Lugar
expected
Fuller’s home.
Investigator
Id. at 7, 16.
Janney
to
go
to
plaintiff
Captain Donelson, who went with
Investigator Janney to plaintiff Fuller’s home, stated that it was
his understanding that Investigator Janney got approval from Chief
Lugar to go to plaintiff Fuller’s home, stating that Chief Lugar
likes “to stay abreast of everything we’re doing, especially
investigations wise.”
Id. at 16-17.
Plaintiff Fuller also stated
that Chief Lugar then saw Investigator Janney and Captain Donelson
come in with a person he believed to be plaintiff Fuller.
Id.
at 14. Based on these events, plaintiff Fuller asserted that Chief
Lugar authorized Fuller’s arrest and transport outside Carilion
Clinic’s jurisdiction.
contended
that
Chief
Id. at 16.
Lugar
failed
Moreover, plaintiff Fuller
to
supervise
the
police
interrogation by failing: (1) to take precautions; (2) to advise
Investigator
Janney
or
Captain
Donelson
on
how
to
approach
plaintiff Fuller or standards that should be followed; (3) to
assure the interview at the meeting room was recorded; and (4) to
follow accepted standards of law enforcement as well as Carilion
40
Clinic Police Personnel Directives 3.01 or 4.13.
Id. at 18-19.
Lastly, with respect to plaintiff Fuller’s claims regarding how
Carilion Clinic police investigate employment issues, plaintiff
Fuller indicated that Chief Lugar admitted that there was no
evidence of intent for plaintiff Fuller to commit a crime.
at 19.
Id.
However, plaintiff stated that Chief Lugar indicated that
he was not directed to investigate the burned match incident from
an employee misconduct perspective, and that Carilion Clinic police
do not investigate civil matters and do not operate as an arm of
the Human Resources Department.
Id. at 21-22.
Plaintiff Fuller
asserted that after Chief Lugar decided there was no crime, he
turned it to the Human Resources Department.
Id.
Viewing the evidence in light most favorable to the plaintiff,
this Court finds that the plaintiff’s contentions have no merit.
First, the plaintiff has not provided any evidence that these
actions and omissions present a “pervasive and unreasonable risk of
constitutional injury suffered by plaintiff.”
at 206.
Randall, 302 F.3d
Even so, the plaintiff has not provided even the minimal
amount of proof of “several different occasions,” where Chief Lugar
has taken or omitted such actions or omissions, and that there were
violations as a result.
Therefore, the plaintiff has failed to
meet the first prong under Randall’s test.
Id.
As to the second prong, the plaintiff has failed to provide
sufficient evidence of alleged abuses of authority by officers.
Moreover, the plaintiff has failed to provide any reason why Chief
41
Lugar could or should expect Captain Donelson and Investigator
Janney to have allegedly violated plaintiff Fuller’s constitutional
rights by asking Captain Donelson and Investigator Janney to go to
plaintiff Fuller’s house to inquire as to whether plaintiff would
come to the Carilion Clinic police station.
After the Supreme Court’s decision in Ashcroft v. Iqbal,
§ 1983 liability against a supervisory official [can only
be brought] on the basis of the supervisor’s own
unconstitutional conduct, [o]r [sic] at least, conduct
that set the unconstitutional wheels in motion.
The
liability of a supervisor should focus on [the
supervisor’s] culpability and on causation, i.e., whether
the supervisor’s conduct was a proximate cause of the
violation of the plaintiff’s constitutional rights.
Although culpability and causation may be analyzed
separately, they are closely related because the mo[r]e
[sic] egregious the supervisor’s conduct, the easier it
is to conclude that the supervisor’s conduct was a
proximate cause of the violation of plaintiff’s federally
protected rights.
Schwartz, Section 1983 Litigation: Claims and Defenses, Volume 1A,
§ 7.19[D], pg. 7-269.
All of the actions alleged by plaintiff
Fuller that could be the cause of plaintiff Fuller’s potential
deprivation
were
actions
Investigator Janney.
inaction
were
not
attributed
to
Captain
Donelson
and
Moreover, any of Chief Lugar’s actions or
unconstitutional
“unconstitutional wheels in motion.”
or
conduct
Id.
that
set
the
The plaintiff has
therefore failed in establishing the requisite causation.
2.
Captain Donelson may be liable under § 1983.
In his amended complaint, plaintiff Fuller asserted that
Captain Donelson violated his constitutional right guaranteed by
42
the Fourth Amendment of the United States Constitution from the
unreasonable seizure of his person.7
ECF No. 10 at 8.
A § 1983 claim requires proof of three elements: “(1) the
deprivation of a right secured by the Constitution or a federal
statute; (2) by a person; (3) acting under color of state law.”
Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
State
officials sued in their official capacities are not persons for
purposes
of
§
1983;
however,
state
officials
sued
in
their
individual capacities are persons and not absolutely immune from
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
suit.
(1989); Hafer v. Melo, 502 U.S. 21, 31 (1991).
However, a state
actor sued in his or her individual capacity may be entitled to
qualified immunity, which “shields [state] officials from liability
for civil damages, provided that their conduct does not violate
clearly established statutory or constitutional rights within the
knowledge of a reasonable person.” Meyers v. Balt. Cnty., Md., No.
11-2192, WL 2013 388125, at *4 (4th Cir. Feb. 1, 2013).
This Court will decline to consider whether Captain Donelson
is entitled to qualified immunity since the defendant has waived
such a defense.
See Noel v. Artson, 297 F. App’x 216, 217 (4th
Cir. 2008) (holding that defendants failed to properly raise their
7
Plaintiff Fuller’s § 1983 claim is silent as to capacity.
The Fourth Circuit has indicated that a court should “look to the
substance of the plaintiff’s claim, the relief sought and the
course of proceedings to determine the nature of a § 1983 suit when
plaintiff fails to allege capacity.”
Plaster v. Brown, No.
6:05CV00006, 2005 WL 3021961, *3 (W.D. Va. Nov. 8, 2005)
(referencing Biggs v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995)).
43
defense of qualified immunity before the district court where
defendants mentioned the immunity defense briefly in their answer,
and only “surfaced” such arguments in plaintiff’s reply brief in
opposition to defendants’ motion for summary judgment, even where
defendants stated that the reason they did not discuss the defense
earlier
was
due
to
their
belief
that
plaintiffs’
underlying
constitutional claims lacked merit).
Moreover, in Cantrell v. Frame, No. 2:18-cv-01106, 2019 WL
1234335, *2 (S.D. W. Va. Mar. 18, 2019), the Court indicated:
The Fourth Circuit has stated that the defense of
qualified immunity should be ‘raised . . . distinct from
the question of whether a constitutional violation
occurred.’ Buffington v. Baltimore Cty., Md., 913 F.2d
113, 122 (4th Cir. 1990), cert. denied, 499 U.S. 906
(1991).
Indeed, the Fourth Circuit has been strict in declining
to sua sponte consider qualified immunity when not
properly presented to the district court: ‘Our cases have
been consistent on one thing: that to be preserved for
appeal, the defense of qualified immunity must be raised
in a timely fashion before the district court.’ Noel v.
Artson, 297 F. App’x 216, 218 (4th Cir. 2008); see e.g.,
id. at 219 (declining to consider appeal of district
court’s sua sponte denial of qualified immunity when the
defendants did not raise the issue until their reply to
the plaintiff’s opposition to the summary judgment
motion); Sales v. Grant, 224 F.3 d 293, 296 (4th Cir.
2000) (finding that when the defendants ‘technically pled
their qualified immunity defense in their answers to the
initial complaint[,]’ but failed to therein elaborate or
otherwise present it in their motion to dismiss or for
summary judgment, ‘we have no trouble concluding that the
defendants waived their right to press seriously their
claim of qualified immunity[.]’); and see Suarez, 125
F.3d at 226 (declining to consider the merits of
qualified immunity when ‘the defense was not squarely
before the district court.’).
44
a.
The
Captain Donelson seized plaintiff Fuller.
Fourth
Amendment
of
the
United
States
Constitution
protects “[t]he right of the people to be secure in their persons,
. . . against unreasonable searches and seizures . . .”
U.S.
Const. amend. IV.
A seizure occurs when an officer by means of physical force or
show of authority has in some way restrained the liberty of a
citizen, and the person submits.
Terry v. Ohio, 392 U.S. 1, 19, 88
S. Ct. 1868, 20 L.Ed.2d 889, 44 O.O.2d 383 (1968); California v.
Hodari D., 499 U.S. 621, 625 111 S. Ct. 1547, 113 L.Ed.2d 690, 59
USLW 4335 (1991).
A show of authority can be verbal or nonverbal,
but the plaintiff must show that the government has terminated
freedom through means intentionally applied.
Brower v. County of
Inyo, 489 U.S. 593, 594, 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989).
In determining whether a seizure occurred, the test is whether the
state actor’s conduct would have communicated to a reasonable
person that he or she is at liberty to decline the state actor’s
request or to otherwise terminate the encounter.
Florida v.
Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L.Ed. 389, 59 USLW
4708 (1991).
presence
of
The court may look to the following factors, the
which
might
suggest
that
a
given
police-citizen
exchange constitutes a seizure: (1) the threatening presence of
several officers; (2) display of a weapon by an officer; (3)
physical touching of the person; or (4) the use of language or tone
of voice indicating that compliance with the officer’s request
45
might be compelled. United States v. Mendenhall, 446 U.S. 544, 554
100 S. Ct. 1870, 64 L.Ed.2d 497 (1980).
A state actor does not
need to inform the person of their right to refuse in order to
establish that a reasonable person would have felt free to leave.
United States v. Drayton, 536 U.S. 194, 203, 122 S. Ct. 2105, 153
L.Ed.2d
242
(2002).
“Fourth
Amendment
predominantly an objective inquiry . . .
whether
the
circumstances,
challenged] action.”
viewed
reasonableness
is
[The Court] ask[s]
objectively,
justify
[the
Ashcroft v. al-Kidd, 563 U.S. 731, 734, 131
S. Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks
omitted).
First, the plaintiff’s deposition indicates that Investigator
Janney “kind of pushe[d] the door in–open . . . he kind of pushe[d]
through the glass part and kind of step[ped] onto . . . the tile
area with a mat [vestibule].”
ECF No. 52-1 at 14.
Plaintiff
Fuller stated that the “knocking on the front door, ringing the
doorbell, and also the knocking on
. . . the glass sliding door on
the side of the house . . . constituted storming of the residence.”
ECF No. 52-1 at 17.
Plaintiff Fuller stated that he heard an
officer, who he believed to be Investigator Janney, yell his name
to come to the door.
Id.
Plaintiff Fuller then stated that
Investigator Janney told plaintiff that plaintiff “need[ed] to come
with [Investigator Janney and Captain Donelson] right now or
[plaintiff was] going to be charged with felony arson,” and that
plaintiff was not allowed to make a phone call.
46
ECF No. 52-1
at 14.
In the deposition transcript, plaintiff Fuller stated that
this request was made while Investigator Janney was “raising his
voice, very intensified, had a tone about it, and he was also
touching . . . his gun at this time and he did it five times
exactly.” Id. The plaintiff has submitted an affidavit written by
Julie McGlothlin, stating that she lives in close proximity to
plaintiff and that she saw two men, presumably Captain Donelson and
Investigator Janney, with guns that were “clearly” visible.
No. 52-6 at 1.
ECF
Plaintiff Fuller indicated that when he attempted
to contact his father, Captain Donelson stated “keep your phone
away while Janney is talking.” On the other hand, plaintiff Fuller
indicated that after changing into new clothes, Investigator Janney
asked whether plaintiff was coming. ECF No. 52-1 at 15. Plaintiff
Fuller
admitted
that
the
officers
never
touched
him,
never
handcuffed him, and that he was put in the front seat of the car.
Id.
Moreover, Captain Donelson’s deposition indicates that he and
Investigator Janney “were both dressed in plain clothes, both had
on polo shirts and slacks . . .
on [their] belt[s].”
[Their] badge[s] [were] displayed
ECF No. 52-9 at 10.
In his deposition
transcript, plaintiff Fuller stated that once he was in the meeting
room, “Janney spoke up and said, so tell me the truth . . . and he
said, I can tell that you are lying and you have Asberger’s and
that makes you stupid and that makes you make things up.”
52-1 at 18.
47
ECF No.
Captain
Donelson
testified
that
Investigator
Janney
was
“knocking normally because it took Mr. Fuller probably between
three and five minutes before he ever answered the door.”
Id.
According to Captain Donelson, both he and Investigator Janney
arrived in a “plain white Chevrolet Impala . . . [with] a light up
at the top visor, [that] [ ] can’t really [be] see[n] [ ] unless
you are looking for it.”
Id.
According to Captain Donelson,
“Janney asked Mr. Fuller if he was the one who made the report
about the attempted arson.
He said that he was.
So Janney asked
him if he would be willing to come down to the police department
and work with [them] . . . as part of [their] investigation of
trying to figure out who was trying to set fire to the building.”
ECF No. 52-9 at 10-11.
According to Captain Donelson, plaintiff
Fuller “was very enthusiastic about helping . . .
He was more than
willing to come with [them] and give a statement.”
Id. at 11.
Captain Donelson then stated that at the meeting room, “[t]he first
thing that Officer Janney did was make sure that Mr. Fuller
understood that he was there voluntarily, that he wasn’t under
arrest, that he was free to leave at any time, he didn’t have to
cooperate with [the officers] at all if he didn’t want to.
Fuller advised that he understood that . . .”
Mr.
Id. at 13.
Plaintiff Fuller has also submitted an expert witness report
from Philip P. Hayden (“Mr. Hayden”).
ECF No. 52-11.
Mr. Hayden
made it clear in that report that “[i]n reaching [his] opinions,
[he] has relied upon the writings of the International Association
48
of Chiefs of Police (IACP)[,]” indicating, however, that “[t]here
is no one set standard that all law enforcement agencies must
Id. at 4.
follow.”
This
Court
notes
the
large
differences
between
Donelson’s testimony and plaintiff Fuller’s testimony.
Captain
However,
for purposes of deciding this motion for summary judgment, the
Court will not make any credibility determinations, and will view
the evidence in light most favorable to the plaintiff. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L.Ed.2d
202
(1986)
(“Credibility
determinations,
the
weighing
of
the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge . . .
The evidence of the
non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.”).
Under this standard of review, this
Court finds that a reasonable person may believe that he or she was
not free to leave under the circumstances. The interview seemed to
occur in an unfamiliar setting that “felt like an interrogation
room.”
ECF No. 52-1 at 18.
displayed their weapons.
The agents wore their badges, and
Although the agents did not use physical
force, there is evidence that there may have been threatening
language or an intimidating tone.
Concerning the phone calls,
plaintiff Fuller alleged that he attempted to contact another
individual but was not permitted.
Lastly, although there is a
question of fact as to whether, and if so, when, plaintiff Fuller
was told that he could leave, this Court will refrain from using
49
such
information
in
deciding
whether
plaintiff
was
seized.
Determining whether, and when, such information was told to the
plaintiff is a question of fact and would improperly involve the
Court in making credibility determinations.
Moreover, this case can be distinguished from cases where a
seizure was not found.
For example, in United States v. Gray, 883
F.2d 320, 322 (4th Cir. 1989), the Fourth Circuit found that the
plaintiff’s interview with the officers was a consensual encounter
because the officers were not in uniform, did not display their
weapons, or even attempt to intimidate the plaintiff “either
physically or verbally.”
Moreover, the Court emphasized that “the
agents never made any attempt to restrain [plaintiff’s] movement,
but instead walked with him.”
Id.
Lastly, the Court noted that
“the officer’s tone [ ] remained ‘conversational’ throughout the
encounter . . . treating the questioning as a matter of routine,
rather than as a particularized investigation of [plaintiff].” Id.
Further, in Trulock v. Freeh, 275 F.3d 391, 400-01 (4th Cir.
2001), the Fourth Circuit did not find that the plaintiff was
seized because: (1) the interview occurred in a familiar setting;
(2) the agents did not wear uniforms; (3) the agents did not
display weapons; (4) the agents did not use physical force; (5) the
agents did not use threatening language or an intimidating tone;
and (6) there was lack of evidence that plaintiff attempted to
leave the room and was refused or that the agents told her that she
was not free to leave the conference room.
50
As explained above, the facts presented in this civil action
can be distinguished from those Fourth Circuit cases where the
Court held that the plaintiffs were not seized.
Viewing the
evidence in light most favorable to plaintiff Fuller, this Court
finds that Captain Donelson seized plaintiff Fuller.
b. A reasonable jury could find that Captain Donelson
violated plaintiff Fuller’s right to be free from unreasonable
seizures.
If there was a seizure then the Court is tasked with deciding
whether the seizure was unreasonable. In order to demonstrate that
a seizure was unreasonable, a plaintiff must show that the officer
seized the plaintiff without probable cause.
In other words,
“facts and circumstances within the officer’s knowledge [ ] are
sufficient to warrant a prudent person . . . in believing . . .
that the suspect has committed an offense.”
United States v.
Williams, 10 F.3d 1070, 1073-74 (4th Cir. 1993).
claim
will
survive
unjustifiable
for
when
a
it
rests
reasonable
plaintiff was violating the law.”
upon
officer
facts
to
“A plaintiff’s
which
conclude
made
that
it
the
Sampson v. Highland County VA
Board of Supervisors, No. 7:15CV00465, 2017 WL 1383951, *3 (W.D.
Va. Apr. 13, 2017). “The validity of the [seizure] does not depend
on whether the suspect actually committed a crime; the mere fact
that the [plaintiff] is later acquitted of the offense . . . is
irrelevant
to
the
validity
of
the
[seizure].”
Michigan
v.
DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L.d.2d 343 (1979).
“While obtaining a warrant does not provide per se evidence of
51
objective reasonableness, there is a ‘presumption of reasonableness
attached to obtaining a warrant.’”
Sampson, No. 7:17CV00465, 2017
WL 1383951, *3 (W.D. Va. Apr. 13, 2017) (citing Torchinsky v.
Siwinski, 942 F.2d 257, 262 (4th Cir. 1991)).
or seizure must be carried out reasonably.
Lastly, the search
Terry, 392 U.S. at 28.
Captain Donelson stated that when he and Investigator Janney
went to plaintiff Fuller’s house, there “wasn’t any criminal
charges” against plaintiff Fuller.
ECF No. 52-9 at 10.
“At that
point there wasn’t any criminal charges against anybody because we
didn’t know for sure who had actually set the fire.”
warrant was obtained prior to plaintiff Fuller’s seizure.
Id.
No
Captain
Donelson even admitted that he did not consider plaintiff Fuller to
be a suspect.
Id.
There were no facts which made it justifiable
for a reasonable officer to conclude that the plaintiff was
violating or violated the law.
Therefore, this Court finds that a reasonable jury could find
that Captain Donelson violated plaintiff Fuller’s right to be free
from unreasonable seizures.
Accordingly, the Court shall deny
summary judgment on this issue.
D. The defendants’ motion for summary judgment is denied as to
plaintiff Fuller’s claim of false imprisonment, but is granted as
to plaintiff Fuller’s claim of intentional infliction of emotional
distress.
This Court will now turn to plaintiff Fuller’s state law
claims.
52
1. A reasonable jury may find that plaintiff Fuller was
falsely imprisoned by Captain Donelson.
Under
Virginia
law,
false
imprisonment
is
defined
as
a
“restraint of one’s liberty without any sufficient cause therefor.”
Zayre of Va., Inc. v. Gowdy, 207 Va. 47, 147 S.E.2d 710, 713
(1966).
A
plaintiff
does
not
need
to
provide
evidence
of
confinement in a jail or that he or she was placed in custody.
Kress v. Musgrove, 153 Va. 348, 149 S.E. 453, 455 (1929).
“The
plaintiff makes out a case for compensatory damages when he shows
that he has been illegally detained without lawful process.”
Montgomery Ward & Co. v. Wickline, 188 Va. 485, 50 S.E.2d 387, 389
(1948). “If a person is under a reasonable apprehension that force
will be used unless he willingly submits, and he does submit to the
extent
that
he
is
denied
freedom
of
action,
contemplation, constitutes false imprisonment.”
this,
in
legal
Zayre, 207 Va.
at 51.
As this Court has determined that there is sufficient evidence
for a reasonable jury to find that Captain Donelson violated
plaintiff Fuller’s right to be free from unreasonable seizures for
purposes
of
his
claim
under
§
1983,
this
Court
will
deny
defendants’ motion for summary judgment with respect to plaintiff
Fuller’s claim of false imprisonment.
This Court finds that
plaintiff Fuller has failed to provide sufficient facts to support
a false imprisonment claim against Chief Lugar.
Moreover, since Captain Donelson was acting within the scope
of his employment, Carilion Clinic may be vicariously liable for
53
such acts. See Abernathy v. Romaczyk, 202 Va. 328, 332, 117 S.E.2d
88, 91 (1960) (finding that vicarious liability may be imposed when
a master-servant relationship exists if the servant was acting
within the scope of employment). The Supreme Court of Virginia has
indicated that “[t]he courts . . . have long since departed from
the rule of nonliability of an employer for wilful or malicious
acts of his employee.”
Commercial Business Systems v. Bell South,
249 Va. 39, 45 (1995).
“Intentional torts may now be asserted
against an employer under the doctrine of vicarious liability.”
Doe v. Harris, No. CL5544, 2001 WL 34773877 (Va. Cir. Ct. Apr. 11,
2001).
2. The plaintiff has not provided sufficient evidence to
establish a claim of intentional infliction of emotional distress.
Under Virginia law, to establish a claim of intentional
infliction of emotional distress, the plaintiff must prove: “(1)
the defendant’s conduct was intentional or reckless; (2) the
defendant’s conduct was extreme and outrageous; (3) the defendant’s
wrongful conduct caused emotional distress; and (4) the emotional
distress was severe.” Owens v. Ashland Oil, Inc., 708 F. Supp. 757
(W.D. Va. Mar. 8, 1989).
This is a high standard to meet.
“[L]iability arises only when the emotional distress is extreme,
and
only
where
the
distress
inflicted
is
so
severe
reasonable person could be expected to endure it.”
that
no
Hatfull, 416
F.3d 320, 337, 33 Media L. Rep. 2057, 22 A.L.R. 6th 839 (4th Cir.
2005).
“[N]either tortious intent, criminal intent, malicious
intent, nor conduct worthy of punitive damages is sufficient to
54
fulfill the ‘outrageous’ element.”
Daniczek v. Spencer, 156 F.
Supp. 3d 739, 759 (E.D. Va. Jan. 11, 2016).
“Liability has been
found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.”
S.E.2d 160 (1991).
Russo v. White, 241 Va. 23, 27, 400
“Thus, liability does not extend to ‘mere
insults, indignities, threats, annoyances, petty oppressions, or
other triviliaties.”
Daniczek, 156 F. Supp. 3d at 759.
Verbal
abuse has been found not to be outrageous. Harris v. Kruetzer, 271
Va. 188, 201, 624 S.E.2d 24, 31 (2006). “The burden of proof for
this claim is high and not often met, as the plaintiff must prove
his case by clear and convincing evidence.”
Zaklit v. Global
Linguist Solutions, LLC, 53 F. Supp. 3d 835, 847 (E.D. Va. 2014)
(citing Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412 (1989)).
This Court finds that the plaintiff has not shown that Captain
Donelson or Chief Lugar had some ulterior purpose behind their
actions or that such actions rise to the level of recklessness.
Moreover,
even
when
viewing
all
the
evidence
in
light
most
favorable to the plaintiff, including the plaintiff’s expert report
(ECF No. 52-11), this Court does not find sufficient evidence that
would rise to the level that Chief Lugar or Captain Donelson acted
outrageously
or
intolerably.
Lastly,
the
plaintiff
has
not
provided sufficient evidence that plaintiff Fuller suffered the
55
sort of severe emotional distress required in establishing this
claim.
Accordingly, the defendants’ summary judgment motion with
respect to this issue is granted.
IV.
Conclusion
For the above reasons, the defendants’ motion for summary
judgment (ECF No. 49) is GRANTED IN PART and DENIED IN PART.
In summary:
1.
Carilion Clinic is not liable under § 1983, but may be
vicariously liable for plaintiff Fuller’s state law claim of false
imprisonment.
2.
Chief Lugar is not liable in his official or personal
capacity under § 1983 or liable for any of plaintiff Fuller’s state
law claims.
3.
Captain Donelson may be liable in his personal capacity
under § 1983 or for plaintiff Fuller’s state law claim of false
imprisonment.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
May 21, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
56
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