Harless v. McCann et al

Filing 62

MEMORANDUM OPINION AND ORDER granting the plaintiff's 37 motion for leave to file an amended complaint for damages and equitable relief under 42 U.S.C. § 1983; granting defendant Jerry Bowman's 24 MOTION to Dismiss; granting def endant Donald Whitten's 31 MOTION to Dismiss; granting defendants Judy Johnson, Charles McCann, Thomas Ramey Jr., The County Commission, and Charles Vance's 48 MOTION to Dismiss. Signed by Judge Joseph R. Goodwin on 2/15/2013. (cc: attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

MARIA PHOEBE HARLESS,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01480

CHARLES MCCANN, et al.,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending are three motions to dismiss and the plaintiff’s motion for leave to file an
amended complaint. The motions to dismiss are: the defendant Jerry Bowman’s motion to
dismiss [Docket 24]; the defendant Donald Whitten’s motion to dismiss [Docket 31]; and the
defendants Judy Johnson, Charles McCann, Thomas Ramey Jr., The County Commission, and
Charles Vance’s motion to dismiss [Docket 48]. The plaintiff, Maria Harless, has also made a
motion for leave to file an amended complaint for damages and equitable relief under 42 U.S.C.
§ 1983 [Docket 37]. The parties have responded to these motions and made their replies [Docket
14, 38, 45, 47, 54, 55, 56, and 57], rendering the motions ripe for review. For the reasons
discussed below, the motion to amend is GRANTED and the motions to dismiss are
GRANTED.
I.

Background

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This case arises out of the plaintiff’s allegations that defendants engaged in various acts
of electoral misconduct in relation to the May 11, 2010 Democratic primary election for Lincoln
County Commissioner. In the original complaint, the plaintiff asserted a claim under 42 U.S.C.
§ 1983 for the deprivation of a constitutional right, a state law tort claim for intentional infliction
of emotional distress, and a state law claim based on the bond required by W. VA. CODE § 6-2-10
to assure that county officials faithfully discharge their duties. [Docket 1]. The state law claims
do not appear in the amended complaint. (Amended Compl., [Docket 37]). Because I am
granting the motion to amend, the state law claims are deemed to be dropped. See Wright &
Miller, et al., 6 Federal Practice and Procedure § 1476 (3d ed.) (“Once an amended pleading is
interposed, the original pleading no longer performs any function in the case . . . .”).
The plaintiff was a candidate for the May 11, 2010 Democratic primary election for
County Commissioner of Lincoln County, West Virginia. (Amended Compl., [Docket 37], ¶ 52).
Defendant James Ramey Jr. was an opposing candidate in the primary election. (Id. at ¶ 53). The
plaintiff alleges that when the polls closed on May 11, 2010, she had won the election based on
the votes cast in person at the polls or through early voting. (Id. at ¶ 54). But on May 27, 2010,
the County Commission of Lincoln County (with defendant McCann as its president and
defendant Johnson as its secretary) certified the results and declared Thomas Ramey Jr. to be the
winner of the nomination following a recount of all absentee ballots voted in the primary
election. (Id. at ¶¶ 55, 57). The absentee ballot count was 545 votes in favor of defendant Ramey,
and 59 votes in favor of the plaintiff. (Id. at ¶ 55).
The plaintiff alleges that the absentee ballots were collected and voted illegally, alleging
that defendants Bowman (as Sheriff of Lincoln County), Whitten (as County Clerk of Lincoln
County), and Ramey solicited absentee ballot applications in-person and had knowledge or

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should have had knowledge that there were inaccurate reasons given in those applications to
meet the authorization requirements of voting by absentee ballot. (Id. at ¶ 23). She alleges that
429 voters submitted applications for absentee ballots by mail based on their falsely alleged
absence from the county during in-person voting, and these voters were then wrongfully allowed
to vote by mail. (Id. at ¶¶ 32–33). Also, 34 voters submitted applications for absentee voting by
mail and were provided with official ballots despite the fact that no reason was given for voting
the absentee ballot by mail. (Id. at ¶ 34). Whitten allegedly did not challenge any of these ballots
despite the fact that he knew or should of known of the voters’ failure to comply with W. VA.
CODE § 3-3-1 and § 3-3-5. (Id. at ¶ 35).
As a result of the manner in which the absentee ballots were collected and voted, the
plaintiff alleges that she was deprived of her rights to due process and equal protection of the
laws secured to her by the Fourteenth Amendment of the Constitution of the United States of
America. (Id. at ¶ 59).
Furthermore, the plaintiff alleges that defendant Vance filed a false statement in support
of his candidacy which indicated that he resided in Magisterial District 5 when he actually
resided in Magisterial District 3. (Id. at ¶¶ 61–62). This was apparently done because there was
another sitting County Commissioner who was a resident of Magisterial District 3 and this fact
would disqualify him from the race. (Id.) The plaintiff alleges that both Ramey and Vance had
knowledge of and actively concealed Vance’s false certificate of candidacy and the fact that
Vance’s true residence would serve as a basis to disqualify the plaintiff. (Id. at ¶ 66). She alleges
that this was grossly negligent or willful on their behalf and undermined the organic processes by
which candidates are elected and so undermined the integrity of the electoral process that it
rendered the election and election contest fundamentally unfair. (Id.)

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The state circuit-court judge presiding over the plaintiff’s contestation of the election
dismissed the case as moot, stating that the plaintiff was disqualified as a candidate from the start
because she resided in the same magisterial district as a sitting Commissioner. (Id. at ¶¶ 63, 67).1
Based on these facts, the plaintiff seeks relief under 42 U.S.C. § 1983.
II.

Legal Standard
a. Motion to Amend
If a party’s pleading is one to which a responsive pleading is required, that party may

amend its pleading once as a matter of course within “21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”
FED. R. CIV. P. 15(a)(1)(B). The plaintiff’s motion for leave to amend her complaint was filed on
September 28, 2012; therefore, the plaintiff can amend her complaint as a matter of course with
respect to the defendant Whitten, who filed his Rule 12(b)(6) motion to dismiss on September
26, 2012. See Galustian v. Peter, 591 F.3d 724, 730 (4th Cir. 2010) (holding that it was an abuse
of discretion to deny an amendment as a matter of course even if the amendment would have
been futile). With respect to the other defendants, in the absence of their written consent, the
plaintiff may only amend her complaint with this court’s leave, which should be “freely give[n]
when justice so requires.” FED. R. CIV. P. 15(a)(2).
The plaintiff’s amended complaint has added a request that this court “award her a
measure of damages that best suits the purposes of her equitable remedy as an innocent party
who has suffered harm at the hands of wrongdoers.” (Amended Compl., [Docket 37], at ¶ 71).
She asks “that she be awarded such equitable relief by the [c]ourt as will make her whole and do
justice between the parties.” (Id.) Also, she has removed her request for punitive damages and
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The court takes judicial notice of In re: The May 11, 2010, Primary Election, Democratic Nomination for
Office of County Commission of Lincoln County, West Virginia, Civil Action No. 10-C-75 (Cir. Ct. of Lincoln
County, West Virginia, August 13, 2010) (Order). [Docket 26].

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her state law claims. Although the amended complaint could be denied as futile with respect to
all defendants but Whitten, granting the motion to amend the complaint would have the same end
result in this case because the amendment does not change the disposition of the motions to
dismiss. Therefore, the plaintiff’s motion for leave to amend her complaint is GRANTED.
b. Rule 12(b)(6) Motions to Dismiss
The defendants have filed motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint
or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil
Procedure 8 requires that a pleading contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” As the Supreme Court stated in Ashcroft v. Iqbal, that
standard “does not require ‘detailed factual allegations’ but ‘it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.’” 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A court cannot accept as true legal
conclusions in a complaint that merely recite the elements of a cause of action supported by
conclusory statements. Id. at 677–78. “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. at 678 (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must
plead facts that allow the court to draw the reasonable inference that the defendant is liable, and
those facts must be more than merely consistent with the defendant’s liability to raise the claim
from merely possible to probable. Id.
Although the motions to dismiss were directed at the original complaint, I do not find it
necessary to require the parties to file new motions just because an amended complaint was
introduced while the motions were pending. See U.S. ex. rel. Constructors, Inc. v. Gulf Ins. Co.,

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313 F. Supp. 2d 593, 596 (E.D. Va. 2004) (stating that under such circumstances a “court may
consider the motion[s] as being addressed to the amended pleading”) (citing 6 Charles Alan
Wright et al., Federal Practice and Procedure § 1476, at 558 (2d ed. 1990)). The third edition of
Wright and Miller also favors this view, and other district courts within this circuit have held the
same. 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2012); see
also Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F. Supp. 2d 406, 415 (D. Md. 2012)
(stating that to deny the motion to dismiss without prejudice to refile would be a “useless
exercise and contrary to the notion of judicial economy”); see also Keith v. U.S. Airways, Inc.,
994 F. Supp. 692, 692 n.1 (M.D.N.C. 1998) (adopting the reasoning in Wright and Miller).
III.

Discussion
The plaintiff’s § 1983 claim is not entitled to relief on its face. Even if the elements of a

§ 1983 claim have been met, the United States Court of Appeals for the Fourth Circuit has held
that “federal courts are not available for awards of damages to defeated candidates.” Hutchinson
v. Miller, 797 F.2d 1279, 1280 (4th Cir. 1986). This is precisely what the plaintiff is seeking in
this suit. (Amended Compl., [Docket 37], at 17). Although the plaintiff also seeks some
“equitable relief,” which the court in Hutchinson stated may give rise to a cognizable cause of
action under § 1983 in “rare and extraordinary circumstances,” the plaintiff makes no specific
request of this court’s equitable powers, and she conflates her request for an equitable remedy
with her request for damages. (Id. at ¶ 71). Such a vague and apparently confused request for this
court to use its equity powers, combined with the fact that the plaintiff brought this suit two years
after the election in dispute, does not nearly rise to the extraordinary circumstances contemplated
by Hutchinson which would give a right to relief.

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The Fourth Circuit in Hutchinson provided many powerful reasons against federal
courts’ involvement with electoral disputes. For instance, the state has provided that contests for
county office are to be resolved by county courts. 797 F.2d at 1284 (citing W. VA. CODE § 3-76). Furthermore, West Virginia courts have “election mandamus” powers by which they may
“compel any [election] officer . . . to do and perform legally any duty [] required of him.” Id.
(citing W. VA. CODE § 3-1-45). The state “has enacted legislation designed to control “[p]olitical
campaign contributions, receipts and expenditures of money, advertising, influence and control
of employees, and other economic, political and social control factors incident to . . . elections.”
Id. at 1285 (citing W. VA. CODE § 3-8-1). There are criminal sanctions available under West
Virginia law “for those found to have filed false returns, tampered with ballots, bought or sold
votes, and the like.” Id. (citing W. VA. CODE §§ 3-9-1 to 3-9-24). Thus, there are state-created
avenues for dealing with the conduct at issue in terms of remedies for the wronged and
punishment for the wrongdoers.
If the federal courts were available to hear all state election disputes under § 1983 based
on a plaintiff’s generic prayer for equitable relief in its complaint, all of the concerns in
Hutchinson would still exist without any tangible change in the calculus. There is still the
potential intrusion on the states’ procedures and the accompanying federalism concerns, the
possibility of inconsistent judgments concerning elections, the erosion of the finality of election
results, and the danger that a cause of action in federal court would provide incentive to bypass
established state procedures. Id. But without class-based discrimination in the election process or
overly restrictive state election laws, or an allegation on par with these constitutional concerns,
the benefit of a federal court stepping in to moderate election disputes is far outweighed by the
dangers to our very political system. See id. at 1280 (providing examples of when federal courts

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are available to guard the electoral process). As Hutchinson recognized, “[t]he legitimacy of
democratic politics would be compromised if the results of elections were regularly to be
rehashed in federal court.” Id.
As in Hutchinson, the plaintiff Harless attempted to use the election contest procedure to
no avail. See id. The state circuit-court judge found that the plaintiff was “barred from ascending
into office even if she could otherwise prevail in the instant election contest” because she lived in
the same Magisterial District as a sitting County Commissioner. (Order Granting Summ. J.
Resp., Thomas Ramey, Jr., [Docket 26], at 7). The judge also found that from 2001 until early
2010, defendant Vance’s residences were within the plaintiff’s magisterial district and were
properly indicated on his 2006 certificate of candidacy. (Id. at 2). Even if the plaintiff made a
specific request for an injunction, and the request was made in a more timely fashion, the claim
would still fail for implausibility because she was legally ineligible for the seat she was running
for.
In consideration of the foregoing, I FIND that the plaintiff has failed to state a claim
upon which relief can be granted.
IV.

Conclusion
The plaintiff’s motion for leave to file an amended complaint for damages and equitable

relief under 42 U.S.C. § 1983 [Docket 37] is GRANTED. Defendant Jerry Bowman’s motion to
dismiss [Docket 24] is GRANTED. Defendant Donald Whitten’s motion to dismiss [Docket 31]
is GRANTED. Defendants Judy Johnson, Charles McCann, Thomas Ramey Jr., The County
Commission, and Charles Vance’s motion to dismiss [Docket 48] is GRANTED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.

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ENTER: February 15, 2013

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