Brumfield v. McCann et al

Filing 61

MEMORANDUM OPINION AND ORDER granting plaintiff's 36 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 30 MOTION to Dismiss; granting defendants Judy Johnson, Charles McCann, and Thomas Ramey Jr.'s 47 MOTION to Dismiss; directing that the case, including all claims and counterclaims, be DISMISSED without prejudice and STRICKEN from the docket. Signed by Judge Joseph R. Goodwin on 3/11/2013. (cc: attys; any unrepresented party) (taq)

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

CHARLES BRUMFIELD,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-01481

CHARLES MCCANN, et al.,
Defendants.

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 30]; and the defendants Judy
Johnson, Charles McCann, and Thomas Ramey Jr.’s motion to dismiss [Docket 47]. The plaintiff,
Charles Brumfield, has also made a motion for leave to file an amended complaint for damages
and equitable relief under 42 U.S.C. § 1983 [Docket 36]. The parties have responded to these
motions and made their replies [Docket 37, 43, 44, 46, 53, 54, 55, and 56], 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
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 Circuit Clerk
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for Lincoln County. 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 36]). 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 for the office of
Circuit Clerk of Lincoln County. (Amended Compl., [Docket 36], ¶ 50). Defendant Jerry Bowman
was an opposing candidate in the primary election. (Id. at ¶ 51). The plaintiff alleges that when the
polls closed on May 11, 2010, he had won the election based on the votes cast in person at the polls
or through early voting. (Id. at ¶ 52). 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 Jerry Bowman to be the winner of the nomination following a recount of
all absentee ballots voted in the primary election. (Id. at ¶¶ 53, 55). The absentee ballot count was
511 votes in favor of defendant Bowman, and 62 votes in favor of the plaintiff. (Id. at ¶ 55). The
plaintiff then initiated an election contest, in which he was ultimately declared the winner and
elected to the office of Circuit Clerk in the 2010 general election. (Id. at 56-57).
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 should

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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). He 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 have known of the voters’ failure to comply with W. Va. Code § 3-3-1 and
§ 3-3-5. (Id. at ¶ 35).
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 his complaint was filed on
September 28, 2012; therefore, the plaintiff can amend his 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

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may only amend his 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 him a
measure of damages that best suits the purposes of her [sic] equitable remedy as an innocent party
who has suffered harm at the hands of wrongdoers . . . .” (Amended Compl., [Docket 36], at ¶ 61).
He asks “that he be awarded such equitable relief by the [c]ourt as will make him whole and do
justice between the parties.” (Id.) Also, he has removed his request for punitive damages and his
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 his 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

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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.,
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

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suit. (Amended Compl., [Docket 37], at 14-15). 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 he conflates his request for an equitable remedy with his request for
damages. (Id. at ¶ 61). 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.
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 § 3-7-6).
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

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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 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. The
federalism concerns present in Hutchinson are even more pressing in this case, where Brumfield
used the state election contest procedures and was instated as the winner. (See Amended Compl.,
[Docket 36], ¶¶ 56-57).
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 36] is GRANTED. Defendant Jerry Bowman’s motion to
dismiss [Docket 24] is GRANTED. Defendant Donald Whitten’s motion to dismiss [Docket 30] is
GRANTED. Defendants Judy Johnson, Charles McCann, and Thomas Ramey Jr.’s motion to
dismiss [Docket 47] is GRANTED.

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The court further ORDERS that the case, including all claims and counterclaims, be
DISMISSED without prejudice and STRICKEN from the docket.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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March 11, 2013