Lackawanna Transport Company v. Hughes
Filing
14
MEMORANDUM OPINION AND ORDER GRANTING 8 DEFENDANT'S MOTION TO DISMISS. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/31/2016. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LACKAWANNA TRANSPORT COMPANY,
a West Virginia corporation,
Plaintiff,
v.
Civil Action No. 5:16CV19
(STAMP)
WILLIAM J. HUGHES, individually
and as Chairperson of the Wetzel
County Solid Waste Authority,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION TO DISMISS
This civil action deals with the business of waste disposal
and
the
alleged
Authority’s
actions
Chairperson,
of
the
William
Wetzel
J.
County
Hughes
Solid
Waste
(“Hughes”).
The
plaintiff, Lackawanna Transport Company (“Lackawanna”), holds a
certificate of need to operate a landfill in Wetzel County, West
Virginia.
It initiated administrative proceedings seeking an
amendment to its certificate of need to allow it to store hydraulic
fracturing (commonly known as “fracking” or “fracing”) waste at its
landfill.
Hughes intervened in those proceedings on behalf of the
Wetzel County Solid Waste Authority.
Lackawanna alleges that the
Authority did not authorize the intervention and that Hughes
intervened to obstruct the proceeding and further his political
agenda. Lackawanna filed this civil action under 42 U.S.C. § 1983,
alleging that Hughes violated its due process rights under the
Fourteenth Amendment by abusing his official authority and by
abusing the administrative process.
The core issue is whether a
public official’s abuse of administrative procedure constitutes a
violation of due process.
This Court believes it does not.
I.
Background
Lackawanna Transport Company owns and operates a landfill in
Wetzel County, West Virginia.
issued
by
the
West
It holds a certificate of need
Virginia
Public
Commission”) to operate the landfill.
Service
Commission
(“the
Lackawanna alleges that the
West Virginia Department of Environmental Protection issued a
memorandum
providing
that
waste
from
hydraulic
fracturing
operations in the Marcellus Shale formation may be stored in West
Virginia landfills pending approval of those landfills’ petitions
for amendments to their certificates of need allowing for storage
of such waste.
In June 2013 and based on that memorandum,
Lackawanna filed a petition with the Commission to amend its
certificate of need to allow Lackawanna to store such waste at its
landfill.
The
Commission’s
staff
then
filed
a
memorandum
recommending approval of the petition.
William Hughes is the Chairperson of the Wetzel County Solid
Waste Authority (“the Authority”).
Hughes was involved in anti-
fracking organizations and had publically expressed his opposition
to fracking.
After Lackawanna filed its petition, Hughes obtained
counsel from the West Virginia Attorney General’s Office in the
Authority’s
name
and
filed
a
motion
2
to
intervene
with
the
Commission to oppose Lackawanna’s petition. Lackawanna opposed the
motion, but the Commission granted it.
The parties then conducted
extensive discovery and several years of proceedings.
2016,
the
Commission
entered
an
order
granting
In March
Lackawanna’s
petition and amending its certificate of need to allow for storage
of fracking waste.1
See Pub. Serv. Comm’n Order on the Application
of Lackawanna Transport Company, dba Wetzel County Landfill, for a
Certificate Amendment to Construct a Dedicated Drilling Waste Cell
and On the Complaint by the Wetzel County Solid Waste Authority
that Lackawanna Transport Company is Operating a Class “A” Solid
Waste
Facility
13-0832-SWF-CN,
Without
the
14-0057-SWF-C
Proper
(Mar.
Certificate
18,
2016),
of
Need,
Nos.
available
at
http://www.psc.state.wv.us/scripts/WebDocket/ViewDocument.cfm?Cas
eActivityID=446823.
In February 2016, and before the petition was
granted, the Authority’s Board of Directors determined that it
never authorized Hughes to intervene on its behalf or to direct the
Authority’s counsel throughout the proceedings.
The Board then
directed its counsel to cease all activity regarding Lackawanna’s
petition.
Lackawanna claims to have first discovered that Hughes
acted without authority in January 2016.
1
Although the Commission’s order is a matter outside of the
pleadings, this Court takes judicial notice of its contents under
Federal Rule of Evidence 201. The parties do not dispute that the
Commission
granted
Lackawanna’s
petition.
Further,
the
Commission’s order is accurately and readily determined as a matter
of public record.
3
Lackawanna then filed this civil action under 42 U.S.C. § 1983
against
Hughes
Chairperson
of
individually
the
and
Authority,
in
his
claiming
official
that
capacity
Hughes
as
deprived
Lackawanna of “its rights to due process under the Fifth and
Fourteenth Amendments to the United States Constitution.”
ECF No.
1
on
at
12.
Lackawanna
alleges
that
Hughes
intervened
the
Authority’s behalf without first obtaining authorization from the
Authority’s Board, that Hughes intervened to further his personal
political agenda, and that he did not act to further a legitimate
government interest.
Lackawanna claims that, but for Hughes’s
intervention, the petition would have been “routinely” granted, and
that Hughes maliciously delayed the proceedings, resulting in
increased expenses in pursuing its petition, increased attorneys’
fees, and economic losses.
Lackawanna seeks declaratory relief,
injunctive relief, judgment for compensatory damages, and punitive
damages.
Hughes then filed a motion to dismiss for failure to
state a claim under Federal Rules of Civil Procedure 12(b)(1) and
(6), arguing that this Court lacks subject matter jurisdiction,
that this Court should abstain from exercising jurisdiction, that
Lackawanna’s claim is otherwise barred for various reasons, that
Lackawanna fails to state a claim for a violation of its rights,
and that Hughes is entitled to qualified immunity.
4
II.
Applicable Law
A motion to dismiss for lack of subject matter jurisdiction
under Federal Rules of Civil Procedure 12(b)(1) may challenge
jurisdiction either facially or factually. Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009); see also Lawrence v. Dunbar, 919
F.2d 1525, 1528-29 (11th Cir. 1990).
“When a defendant makes a
facial challenge to subject matter jurisdiction, the plaintiff, in
effect, is afforded the same procedural protections he would
receive under a Rule 12(b)(6) [motion].”
marks omitted).
Id. (internal quotation
“In that situation, the facts alleged in the
complaint are taken as true, and the motion must be denied if the
complaint
alleges
jurisdiction.”
sufficient
facts
to
invoke
subject
matter
Id.
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
This plausibility
standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff is plausibly
entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
5
III.
Discussion
Hughes offers a host of arguments in support of his motion to
dismiss.
First, he argues that this Court lacks jurisdiction or
should abstain from exercising jurisdiction. Second, Hughes argues
that Lackawanna’s § 1983 claim is barred under the applicable
statute of limitations, the doctrine of waiver, and under West
Virginia state law.
Third, he argues that Lackawanna fails to
state a claim that Hughes violated its due process rights under the
Fifth or Fourteenth Amendments, and that Hughes is entitled to
qualified immunity.
A.
Jurisdiction
Hughes
argues
that
this
Court
lacks
subject
matter
jurisdiction under Article III of the United States Constitution
because Lackawanna fails to demonstrate standing and that this
dispute is not ripe for judicial review.
1.
Standing
Article III of the United States Constitution limits federal
courts’ jurisdiction to actual “cases” and “controversies.”
Const. art. III, § 2.
U.S.
It is “an essential and unchanging part of
the case-or-controversy requirement” that the party asserting
federal jurisdiction establish standing.
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a party
must show: “(1) that it has suffered an injury in fact that is both
concrete
and
particularized
and
6
‘actual
or
imminent,
not
conjectural or hypothetical’; (2) that there is a causal connection
between the injury and the conduct complained of, i.e. the injury
is ‘fairly traceable’ to the challenged action; and (3) that it is
‘likely . . . that the injury will be redressed by a favorable
decision.’”
Star Sci. Inc. v. Beales, 278 F.3d 339, 358 (4th Cir.
2002) (quoting Lujan, 504 U.S. at 560-61).
federal
jurisdiction
elements.”
bears
the
burden
of
“The party invoking
establishing
these
Lujan, 504 U.S. at 561.
First, Lackawanna alleges an injury in fact.
Lackawanna
alleges that it has suffered an injury in the form of increased
litigation costs, attorneys’ fees, and economic damages due to
Hughes’s abuse of authority and of the administrative proceedings.
These alleged injuries are certainly concrete and particularized
and have actually been suffered.
Second, Lackawanna demonstrates
that its alleged injury is fairly traceable to Hughes’s actions and
“not . . . th[e] result [of] the independent action of some third
party not before the court.”
Id.
(internal quotation marks omitted).
(alterations in original)
Lackawanna alleges that, but
for Hughes’s intervention, the Commission would have “routinely”
granted Lackawanna’s unopposed petition.
It further alleges that
the increased costs, attorneys’ fees, and economic losses directly
resulted from Hughes’s intervention, increasing the duration and
stakes of the proceedings.
Third, Lackawanna’s alleged injury
likely would be redressed by a favorable judgment.
7
Lackawanna’s
claimed injuries are the increased cost of pursuing its petition,
increased attorneys’ fees, and economic losses resulting from the
delay. Lackawanna seeks declaratory relief, injunctive relief, and
a judgment for compensatory and punitive damages.
Because the
Commission granted Lackawanna’s petition, damages are not ongoing
and injunctive relief would not be warranted.
However, a judgment
for compensatory damages would likely make Lackawanna whole.
Hughes argues that Lackawanna cannot demonstrate any of the
standing elements because Lackawanna fails to allege a violation of
its constitutional rights.
He argues that he did not cause a
deprivation of a cognizable property interest held by Lackawanna,
that only the Commission could deprive Lackawanna of its asserted
property interest in its certificate of need or the expected
amendment, and that the Commission is the only proper defendant.
However, these arguments go to the merits of Lackawanna’s § 1983
claim rather than the broad standing inquiry.
The issue of
standing is whether a “case” or “controversy” exists, not whether
the plaintiff’s claim can withstand a motion to dismiss under Rule
12(b)(6).
Regardless of the ultimate merit of Lackawanna’s claim,
Lackawanna satisfies Article III’s threshold standing requirement.
2.
Ripeness
Article III’s case-or-controversy requirement also demands
that the dispute be ripe.
“The doctrine of ripeness prevents
judicial consideration of issues until a controversy is presented
8
in ‘clean-cut and concrete form.’”
Miller v. Brown, 462 F.3d 312,
318-19 (4th Cir. 2006) (quoting Rescue Army v. Mun. Ct. of L.A.,
331 U.S. 549, 584 (1947)).
proving ripeness.
The plaintiff bears the burden of
Id. at 319.
In determining ripeness, courts
must balance “the fitness of the issues for judicial decision with
the hardship to the parties of withholding court consideration.”
Id. (internal quotation marks omitted).
“A case is fit for
judicial decision when the issues are purely legal and when the
action
in
controversy
is
final
and
not
dependent
on
future
uncertainties.” Id. Hardship is “measured by the immediacy of the
threat and the burden imposed on the [plaintiff].”
Charter Fed.
Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 208-09
(4th Cir. 1992).
Courts must consider the cost to the parties of
delaying judicial review.
Miller, 462 F.3d at 319.
This civil action presents a purely legal issue; whether
Hughes
violated
Lackawanna’s
constitutional
rights.
If
Lackawanna’s claims are valid, Lackawanna would endure substantial
hardship if it was denied access to this Court for vindication of
its
constitutional
rights.
Further,
dismissal
would
delay
compensation for those injuries.
While Hughes argues that this case is not ripe because the
Commission did not deny Lackawanna’s petition, Lackawanna’s claim
does
not
depend
upon
the
denial
of
its
petition.
However,
Lackawanna claims Hughes violated its right to due process by
9
abusing his authority and the administrative process, not that his
actions resulted in a denial of the petition.
Accordingly, this
matter is ripe for judicial consideration.
B.
Abstention
Hughes argues that this Court should abstain from exercising
jurisdiction under Burford v. Sun Oil Co., 319 U.S. 315 (1943), and
that
this
Court
should
refuse
to
exercise
jurisdiction
over
Lackawanna’s request for declaratory relief. Generally, federal
courts
have
jurisdiction.”
an
“unflagging
obligation
to
exercise
their
Wash. Gas Light Co. v. Prince George’s Cnty.
Council, 711 F.3d 412, 418 (4th Cir. 2013) (internal quotation
marks omitted) (quoting Deakins v. Monaghan, 484 U.S. 193, 203
(1988)).
However, courts may abstain from exercising jurisdiction
in certain limited, extraordinary circumstances.
Hughes argues
that this Court should abstain from exercising its jurisdiction
under the doctrine set out in Burford v. Sun Oil, 319 U.S. 315
(2007), and that this Court should specifically abstain from
exercising jurisdiction over Lackawanna’s request for declaratory
relief.
First, under Burford, courts may abstain from exercising
equitable jurisdiction where “[f]ederal adjudication would ‘unduly
intrude’ upon ‘complex state administrative processes’” because
either: (1) “there are difficult questions of state law whose
importance transcends the result in the case then at bar”; or (2)
10
“federal review would disrupt state efforts to establish a coherent
policy with respect to a matter of substantial public concern.”
Wash. Gas, 711 F.3d at 418 (internal quotation marks omitted).
“Courts must balance the state and federal interests to determine
whether the importance of difficult state law questions or the
state interest in uniform regulation outweighs the federal interest
in adjudicating the case.”
(4th
Cir.
2007)
(emphasis
Martin v. Stewart, 499 F.3d 360, 364
in
original).
“[C]ases
involving
questions of state and local land use and zoning law are a classic
example of situations where Burford should apply,” but such cases
“do not automatically warrant Burford abstention.”
Wash. Gas, 711
F.3d at 419 (internal quotation marks omitted).
Under Burford,
courts may abstain only from claims for declaratory or equitable
relief, but may stay claims for damages.
Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 730-31 (1996).
Burford abstention is not appropriate here.
This case does
not present difficult questions of state law. The only question is
whether Hughes violated Lackawanna’s constitutional rights while
acting under color of state law.
Despite Hughes’s suggestion to
the contrary, this case does not present any legal issues regarding
local land use or zoning laws.
Lackawanna alleges that Hughes
abused his official position to maliciously obstruct a state
administrative
proceeding,
not
that
the
application
of
West
Virginia land use laws or local zoning laws violates Lackawanna’s
11
rights. Lackawanna’s claim does not depend upon the interpretation
or application of state and local waste disposal laws and does not
present any difficult questions of state law.
Further, federal review in this case would not disrupt any
state effort to establish a coherent policy with respect to a
matter of substantial public concern.
While disposal of fracking
waste is a matter of substantial public concern, the state has
already developed a coherent policy on that issue.
Entities may
seek
an
a
certificate
of
need
or
an
amendment
to
existing
certificate of need permitting them to store fracking waste in
accordance with state environmental and waste disposal regulations.
The Public Service Commission is tasked with considering petitions
for
such
certificates
of
need.
The
Commission
has
already
determined that Lackawanna may store such waste in its landfill,
and Lackawanna’s claim does not require this Court to consider the
merits of the Commission’s order.
Thus, a determination in this
case would not require this Court to consider the state’s policy
and would not disrupt it in any way.
Second, as to Lackawanna’s request for declaratory judgment,
courts have discretionary jurisdiction to “declare the rights and
other
legal
declaration.”
relations
of
any
interested
party
seeking
such
28 U.S.C. § 2201(a); Centennial Life Ins. Co. v.
Poston, 88 F.3d 255, 256 (4th Cir. 1996).
“[A] declaratory
judgment action is appropriate when the judgment will serve a
12
useful purpose in clarifying and settling the legal relations in
issue, and . . . when it will terminate and afford relief from the
uncertainty,
proceeding.”
omitted).
insecurity,
and
controversy
giving
rise
to
the
Poston, 88 F.3d at 256 (internal quotation marks
“[W]hen a related state proceeding is underway, a court
considering a declaratory judgment action should specifically
consider whether the controversy can better be settled in the
proceeding pending in the state [forum].”
quotation marks omitted).
Id. at 257 (internal
Courts must consider: (1) “the strength
of the state’s interest in having the issues raised in the federal
declaratory action decided in the state [fora]”; (2) “whether the
issues raised in the federal action can more efficiently be
resolved in the [forum] in which the state action is pending”; (3)
“whether permitting the federal action to go forward would result
in unnecessary ‘entanglement’ between the federal and state court
systems, because of the presence of ‘overlapping issues of fact or
law’”; and (4) “whether the declaratory judgment action is being
used merely as a device for ‘procedural fencing’ — that is, ‘to
provide another forum in a race for res judicata’ or ‘to achiev[e]
a federal hearing in a case otherwise not removable.’”
Id.
(alteration in original).
Applying these factors here, this Court finds that exercise of
declaratory judgment jurisdiction is appropriate.
before
the
Commission
have
concluded,
13
thus,
The proceedings
adjudication
of
Lackawanna’s claim would not interfere with those proceedings.
Further,
this
civil
action
Lackawanna’s petition.
does
not
touch
on
the
merits
of
The only issue is whether Hughes’s actions
violated Lackawanna’s constitutional rights.
Thus, the state has
no interest in having this dispute resolved by the Commission.
Resolving
this
dispute
in
a
federal
forum
does
not
create
entanglement with the state’s judicial or administrative systems
because there are no overlapping factual or legal issues involved.
Finally,
there
Accordingly,
is
this
no
Court
indication
will
not
of
“procedural
abstain
from
fencing.”
exercising
jurisdiction in this civil action.
C.
Bars to the Claim
Hughes also argues that Lackawanna’s claim is barred by the
applicable statute of limitations, that Lackawanna waived its right
to bring this civil action, and that he is immune from liability
under state law.
1.
Statute of Limitations
In § 1983 claims, the state’s “general or residual statute [of
limitations] for personal injury actions” applies. Owens v. Okure,
488 U.S. 235, 250 (1989).
West Virginia’s residual limitations
period for personal injury actions is two years.
§ 55-2-12(b).
W. Va. Code
“[U]nder the ‘discovery rule,’ the statute of
limitations is tolled until a claimant knows or by reasonable
diligence should know of his claim.”
14
Roberts v. W. Va. Am. Water
Co., 655 S.E.2d 119, 125 (W. Va. 2007) (alteration in original)
(internal quotation marks omitted).
Further, the plaintiff must
know or should know “(1) that the plaintiff has been injured[;] (2)
the identity of the entity who owed the plaintiff a duty to act
with due care, and who may have engaged in conduct that breached
that duty[;] and (3) that the conduct of that entity has a causal
relation to the injury.”
Id.
Hughes argues that the limitations period ran on November 6,
2015 because Hughes filed the motion to intervene on November 6,
2013. However, the discovery rule tolled the limitations period to
January 9, 2016, when Lackawanna claims it learned that Hughes
acted without the Authority’s approval to intervene.
Lackawanna’s
claim depends, not on the fact of Hughes’s intervention, but on the
fact that he intervened without authority and for the purpose of
furthering
his
personal
political
agenda.
It
appears
that
Lackawanna had no reason to know that Hughes intervened without
authority until January 9, 2016.
Hughes argues that the discovery rule does not apply because
Lackawanna could have investigated whether Hughes was authorized to
intervene on the Authority’s behalf, as the Authority’s meetings
were publicly held and its minutes were publicly available.
He
argues that Lackawanna should have exercised “due diligence” and
investigated the Authority’s public records to determine whether
the Authority’s Board ever voted to authorize the intervention.
15
However, Hughes does not identify any facts Lackawanna knew that
would
make
it
reasonable
for
Lackawanna
to
conduct
such
an
investigation. This is especially true where the Authority’s Board
did not officially find that Hughes acted without authority or take
action
to
end
his
ultra
vires
actions
until
February
2016.
Accordingly, the limitations period for Lackawanna’s § 1983 claim
was tolled until January 9, 2016 and the complaint is timely filed.
2.
Waiver
Hughes argues that Lackawanna waived its right to bring this
civil
action
because
Lackawanna
failed
to
challenge
in
the
proceedings before the Commission Hughes’s authority to intervene.
“[W]aiver is the voluntary and intentional relinquishment of a
known right, and courts have been disinclined lightly to presume
that valuable rights have been conceded in the absence of clear
evidence to the contrary.”
Doe v. Kidd, 501 F.3d 348, 354 (4th
Cir. 2007) (internal quotation marks omitted).
First, Lackawanna did not know Hughes acted without authority
until
January
2016
and
filed
its
complaint
a
month
later.
Lackawanna could not have intended to waive its right to bring its
§ 1983 claim when it did not know the underlying facts until the
administrative proceedings were all but concluded.
Second, the
Commission could not have adjudicated Lackawanna’s § 1983 claim.
Lackawanna does not challenge Hughes’s intervention directly.
Rather, Lackawanna alleges that Hughes’s intervention constitutes
16
a
violation
of
its
constitutional
rights,
separate
from
the
procedural issue of the propriety of his intervention in the
administrative proceedings.
While the Commission had jurisdiction
to consider the procedural propriety of Hughes’s intervention, it
did not have jurisdiction to adjudicate an alleged violation of
Lackawanna’s constitutional rights. Lackawanna did not voluntarily
and intentionally relinquish its right to seek compensation from
Hughes for an alleged violation of its constitutional rights.
Lackawanna could not have presented its § 1983 claim to the
Commission and, thus, could not have waived its claim.
3.
State Law Immunity
Hughes argues that he is immune from liability in this civil
action
under
the
West
Virginia
Governmental
Tort
Claims
and
Insurance Reform Act, W. Va. Code §§ 29-12A-1 to 29-12A-18.
However, the Act does not apply to “[c]ivil claims based upon
alleged violations of the constitution or statutes of the United
States.” W. Va. Code § 29-12A-18(e). Further, the only immunities
that apply under § 1983 are qualified immunity and absolute
immunity applicable only to officials performing certain “special
functions.”
Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 (1993).
Accordingly, official immunity under West Virginia law does not
apply in this civil action.
17
D.
Lackawanna’s § 1983 Claim
This Court will now address the merits of Lackawanna’s claim.
To state a claim under § 1983, a plaintiff must allege that the
defendant “(1) deprived [the] plaintiff of a right secured by the
Constitution and laws of the United States, and (2) that the
deprivation was performed under color of . . . state law.” Philips
v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Although Lackawanna claims Hughes violated its due process rights
under the Fifth and Fourteenth Amendments, this Court notes that
because Hughes is a state official, the Fourteenth rather than the
Fifth Amendment applies.
The Due Process Clause of the Fourteenth
Amendment states that “[n]o State shall . . . deprive any person of
life, liberty, or property, without due process of law.”
Const.
amend.
XIV,
§1.
This
provides
both
procedural
U.S.
and
substantive protection against arbitrary deprivations of life,
liberty, or property.
Lackawanna alleges that Hughes violated its due process rights
by abusing his official authority to maliciously intervene in the
administrative proceedings before the Commission. Thus, Lackawanna
invites this Court to expand the concept of substantive due process
to include abuse of process claims against public officials.
Because
recognition
of
such
a
claim
would
constitutionalize
wrongful conduct redressable under state tort law, this Court
declines the invitation.
18
Lackawanna’s claim is based upon substantive due process. The
Supreme Court has “always been reluctant to expand the concept of
substantive
due
process
because
guideposts
for
responsible
decisionmaking in this unchartered area are scarce and open-ended.
By extending constitutional protection to an asserted right or
liberty interest, [the Court], to a great extent, place[s] the
matter outside the arena of public debate and legislative action.”
Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (internal
quotation
marks
and
citation
omitted).
Thus,
the
Court
“exercise[s] the utmost care whenever [it is] asked to break new
ground in this field, lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of [the
judiciary].”
Id. (internal quotation marks and citation omitted).
To state a claim for a violation of substantive due process
through official conduct, a plaintiff must show that: (1) the
defendant deprived the plaintiff of life, liberty, or property; (2)
the
defendant
acted
under
color
of
state
law;
and
(3)
the
defendant’s conduct was “so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.”
Hawkins v.
Freeman, 195 F.3d 732, 738-39 (4th Cir. 1999) (quoting City of
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)) (internal
quotation marks omitted).
The question of whether the defendant’s
conduct “shock[s] the contemporary conscience” is a threshold
issue.
Id. at 738.
19
The “shocks-the-conscience test turns on the [defendant’s]
degree of fault.” Waybright v. Frederick Cnty., Md., 528 F.3d 199,
205 (4th Cir. 2008).
“[T]he general rule is that the action must
have been ‘intended to injure in some way unjustifiable by any
government interest.’”
Id. (quoting Lewis, 523 U.S. at 849).
The
defendant’s action must be so “unjustified by any circumstance or
governmental interest, as to be literally incapable of avoidance by
any
pre-deprivation
procedural
protections
or
of
rectification by any post-deprivation state remedies.”
adequate
Snider
Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 150 (4th
Cir. 2014) (internal quotation marks omitted).
process
are
not
.
.
.
subject
unfamiliar territory . . . .
to
mechanical
“Rules of due
application
in
[Thus, the need to] preserv[e] the
constitutional proportions of substantive due process demands an
exact analysis of circumstances before any abuse of power is
condemned as conscience shocking.”
Lewis, 523 U.S. 850.
Where state tort law offers post-deprivation procedure to
remedy the alleged injury, “state tort law is the rule and due
process the distinct exception.
In other words, the Supreme Court
has established a strong presumption that § 1983 due process claims
[that] overlap state tort law should be rejected.”
Waybright, 528
F.3d at 205. The Supreme Court has emphasized that “the Fourteenth
Amendment is not a font of tort law to be superimposed upon
20
whatever systems may already be administered by the States.”
Lewis, 523 U.S. at 848 (internal quotation marks omitted).
Here, West Virginia tort law overlaps with Lackawanna’s claim.
West Virginia law recognizes a cause of action for abuse of
process, and a plaintiff may recover damages for the additional
time and cost expended in legal process by proving that the
defendant “willful[ly] and intentional[ly] abuse[d] or misuse[d]”
regularly issued process “for the accomplishment of some wrongful
object”
resulting
in
“unlawful
injury”
to
the
plaintiff.
Williamson v. Harden, 585 S.E.2d 369, 372 (W. Va. 2003).
Abuse of
process is distinct from malicious prosecution in that malicious
prosecution involves the “malicious[] causing [of] process to
issue,”
while
abuse
of
existing, lawful process.
process
involves
malicious
misuse
of
Id.
While the Supreme Court has looked to the common law tort of
malicious prosecution in considering whether a false conviction
violates the Fourth Amendment’s protection against unreasonable
seizures of one’s person, the Court has not considered the misuse
of process itself to be redressable.
U.S.
477,
malicious
486-87
(1994)
prosecution
to
(relying
hold
on
that
See Heck v. Humphrey, 512
the
“to
common
recover
law
tort
damages
of
for
allegedly unconstitutional conviction or imprisonment, . . . a
§ 1983 plaintiff must prove that the conviction or sentence has
been . . . declared invalid” (footnote omitted)); Lambert v.
21
Williams, 223 F.3d 257, 261 (4th Cir. 2000) (concluding that a
§ 1983 claim for malicious prosecution is “properly understood as
a
Fourth
Amendment
claim
for
unreasonable
seizure
incorporates certain elements of the common law tort”).
[that]
Further,
the Court has not embraced the common law torts of malicious
prosecution or abuse of process as violations of substantive due
See Albright v. Oliver, 510 U.S. 266, 273-74
process themselves.
(1994) (concluding in a plurality decision that a § 1983 malicious
prosecution claim is one for a violation of the Fourth Amendment
rather than of substantive due process); Lambert, 223 F.3d at 260
(concluding that “malicious prosecution is not itself redressable
under § 1983”).
Accordingly, a claim for abuse of process is not itself
redressable
under
§
1983.
The
tort
could
provide
a
useful
analytical framework to determine whether a defendant deprived a
plaintiff
of
protected
life,
liberty,
or
property
interest.
However, it would be the deprivation of that interest that would be
redressable under the concept of substantive due process and not
the abuse of process itself.
Thus, unless Hughes’s abuse of
process deprived Lackawanna of a protected interest, Lackawanna’s
claim is not redressable under § 1983.
To that end, Lackawanna argues that it had property interests
in the amendment it sought in its petition and in its original
certificate of need.
Lackawanna does not allege it was actually
22
deprived of these interests.
Rather, Lackawanna alleges that
Hughes’s obstruction unduly delayed the issuance of the amendment
and that this constitutes a deprivation of due process.
However,
as discussed above, the question is whether Hughes’s abuse of
process resulted in the deprivation of a protected life, liberty,
or property interest.
Property interests “are created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law.”
Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972).
“To have a property
interest in a benefit, a person clearly must have more than an
abstract need or desire for it.
unilateral expectation of it.
claim of entitlement to it.”
He must have more than a
He must, instead, have a legitimate
Id.
This “claim of entitlement”
standard also applies to land-use permits.
Gardner v. City of
Balt. Mayor & City Counsel, 969 F.2d 63, 68-69 (4th Cir. 1992).
Thus, a person has a property interest in a land-use permit only if
“the local agency lacks all discretion to deny issuance of the
permit or to withhold its approval.
Any significant discretion
conferred upon the local agency defeats the claim of a property
interest.”
particular
Id. at 68 (emphasis in original).
case,
objective
observers
would
“Even if in a
estimate
that
the
probability of issuance was extremely high, the opportunity of the
local agency to deny issuance suffices to defeat the existence of
23
a federally protected property interest.”
Id. (internal quotation
marks omitted).
First, Lackawanna suggests that it had a property interest in
the amendment to the certificate of need because, but for Hughes’s
intervention, the amendment would have been “routinely granted.”
However, Lackawanna was not entitled to the amendment.
Under West
Virginia law, the Commission has discretion to grant or deny
applications to obtain land-use permits.
W. Va. Code § 24-2-1C.
Even if the Commission “routinely” grants these petitions, that
means only that the “probability of issuance was extremely high.”
Gardner, 969 F.2d at 68 (internal quotation marks omitted).
The
Commission still had “the opportunity . . . to deny issuance.” Id.
(internal quotation marks omitted).
Thus, Lackawanna was not
entitled to the amendment and it did not have a protected property
interest in its expectation that the amendment would be granted.
Further, Lackawanna’s petition was ultimately granted.
Therefore,
Hughes’s alleged abuse of process did not result in the deprivation
of a property interest held by Lackawanna.
Nevertheless, Lackawanna relies on Huron Valley Hospital, Inc.
v. City of Pontiac, 612 F. Supp. 654 (S.D. Mich. 1985), and Ponds
at North Hills v. Incorporated Village of North Hills, 623 F. Supp.
688 (E.D.N.Y. 1985), to argue that an official’s malicious abuse of
process to prevent a person from obtaining a certificate of need is
redressable
under
§
1983.
However,
24
those
cases
dealt
with
obstruction of the issuance of a certificate of need to which the
plaintiffs
were
already
legally
entitled.
In
Huron
Valley
Hospital, the defendants refused to issue a certificate of need
after “Michigan courts determined that [the] plaintiff was entitled
to a certificate of need and ordered that one be issued.”
Valley Hosp., 612 F. Supp. at 661.
Huron
Similarly, in Acorn Ponds, the
plaintiff was entitled to issuance of certificates of occupancy for
buildings the plaintiff constructed according to the specification
of building permits that the defendant previously issued because
“the representation implicit in issuing the building permits [was]
that [certificates of occupancy] would be granted if the buildings
were constructed in accordance with the plans upon which the
building permits were issued.”
Acorn Ponds, 623 F. Supp. at 692.
Unlike Huron Valley Hospital and Acorn Ponds, Lackawanna is sought
a new benefit in its petition that is not mandated by a prior
determination
of
entitlement
certificate of need.
by
the
nature
of
its
original
This Court has found no instance where an
official was held liable under § 1983 for interfering with a
plaintiff’s attempt to obtain a new property interest.
Second, Lackawanna argues that its original certificate of
need constitutes a protected property interest.
While Lackawanna
surely has a property interest in its original certificate of need,
its enjoyment of that property interest was not in jeopardy in the
administrative proceedings.
Lackawanna’s petition was for an
25
amendment to its certificate of need.
Deprivation of its original
certificate of need was simply not implicated, with or without
Hughes’s intervention.
Thus, Hughes did not, and could not have,
deprived Lackawanna of its original certificate of need through his
abuse of process.
Further, Lackawanna does not allege that
Hughes’s actions infringed its use or enjoyment of its original
certificate of need.
Third,
Lackawanna
does
protected liberty interest.
not
claim
it
was
deprived
of
a
To the extent that Lackawanna argues
that it was deprived of some interest in procedural due process,
Lackawanna fails to state a § 1983 claim based on a violation of
procedural
due
process.
Unlike
substantive
due
process,
“procedural due process simply ensures a fair process before the
government may deprive a person of life, liberty, or property but
‘does not require certain results.’”
Sansotta v. Town of Nags
Head, 724 F.3d 533, 540 (4th Cir. 2013) (citations omitted).
“To
succeed on a procedural due process claim, a plaintiff must satisfy
three elements”: (1) “that he had a constitutionally cognizable
life, liberty, or property interest”; (2) “that the deprivation of
that interest was caused by some form of state action”; and (3)
“that the procedures employed were constitutionally inadequate.”
Id. (internal quotation marks omitted).
As discussed above,
Lackawanna was not deprived of a cognizable property interest.
Even if Lackawanna were somehow deprived of a property interest,
26
Lackawanna was afforded constitutionally sufficient process through
the proceedings before the Commission.
Thus, Lackawanna cannot
state a claim for a violation of procedural due process.
Because Hughes did not deprive Lackawanna of a protected
property or liberty interest, Lackawanna’s claim is essentially for
abuse of process under West Virginia law.
Any harm caused by
Hughes is therefore redressable under state tort law, and this
Court declines to expand substantive due process to such claims.
Further, this Court does not feel the need to address Hughes’s
qualified immunity as this Court finds no constitutional violation.
See
Pearson
(concluding
v.
that
Callahan,
555
qualified
U.S.
immunity
223,
232,
does
not
236-37
apply
(2009)
if
the
defendant’s “conduct violated a clearly established constitutional
right” and that it the question need not be considered if the
plaintiff fails to establish a constitutional violation).
IV.
Conclusion
Hughes’s alleged abuse of process does not rise to the level
of a constitutional violation.
under § 1983.2
is GRANTED.
Lackawanna fails to state a claim
Accordingly, Hughes’s motion to dismiss (ECF No. 8)
It is ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
2
For
Court has
standing,
state law
this reason, dismissal is appropriate, although this
ruled above in favor of the plaintiff on the issues of
ripeness, abstention, statute of limitations, waiver, and
immunity.
27
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
October 31, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
28
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