Grace et al v. Sparks et al
Filing
105
MEMORANDUM OPINION AND ORDER granting the 29 CONSOLIDATED MOTION to Dismiss filed by Steven D. Canterbury and the West Virginia Supreme Court of Appeals, directing that the claims against defendants Steven D. Canterbury and the West Virginia Sup reme Court of Appeals are dismissed; granting the 27 Motion to Dismiss filed by C. Michael Sparks, directing that the claims against the defendant C. Michael Sparks are dismissed; granting the 23 MOTION to Dismiss filed by Michael Thornsbury, directing that the claims against Michael Thornsbury are dismissed; further denying as moot 76 and 77 motions to dismiss herein filed in Civil Action No. 2:15-0281. Signed by Judge John T. Copenhaver, Jr. on 11/19/2015. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.
Civil Action No.: 2:15-01505
(Lead action)
C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION, together with its
present (and former) commissioner(s) and
in their (his) official capacity, and
GREG SMITH and JOHN MARK HUBBARD and
DIANE HANNAH and DAVID L. BAISDEN and
MINGO COUNTY BOARD OF EDUCATION,
Defendants.
TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.
Civil Action No.: 2:15-00281
C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION and
MINGO COUNTY COMMISSIONERS,
in their official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are separate motions to dismiss filed by
defendant Michael Thornsbury on March 30, 2015, by defendant C.
Michael Sparks on April 6, 2015, and jointly by defendants
Steven D. Canterbury and the West Virginia Supreme Court of
Appeals on April 9, 2015.1
I.
Allegations of the Consolidated Complaints
Plaintiffs Tina M. Grace and Larry Grace, residents of
Mingo County, West Virginia, are husband and wife.
Mr. and Mrs.
Grace instituted the first of these actions on January 7, 2015.
On February 5, 2015, they filed a new complaint asserting
essentially the same claims, but adding as a defendant the Mingo
County Board of Education.
The latter complaint’s only new
allegations were stated in two causes of action against the
Board of Education.
For reasons stated in its memorandum
1
Defendants Sparks and Canterbury also moved to dismiss in Civil
Action No. 2:15-00281, which the plaintiffs filed a month before
filing Civil Action No. 2:15-01505. As the court consolidated
the two actions by its order of October 6, 2015 and the parties’
motions to dismiss present essentially the same arguments, the
court ORDERS that the motions to dismiss filed in the former
action, found at docket entry 76 and 77 of the consolidated
docket be, and hereby are, denied as moot.
2
opinion and order of October 6, 2015, the court consolidated the
actions at the plaintiffs’ request.
The allegations of the
plaintiffs that follow are taken as true for purposes of the
motions to dismiss.
At all relevant times, defendant C. Michael Sparks was
serving as the prosecuting attorney for Mingo County, defendant
Michael Thornsbury was serving as a judge on the Circuit Court
of Mingo County and defendant Jay Lockard was serving as
foreperson of the Mingo County grand jury and employed by Mingo
County as a computer technician.
Plaintiffs allege that
unlawful actions by defendants Sparks, Thornsbury and Lockard
occurred while they were acting in their official capacities.
Defendant Steven D. Canterbury is the operations
director of the Supreme Court of Appeals of West Virginia.
The
Supreme Court of Appeals is included as a defendant based on the
allegation that Mr. Thornsbury “may be construed [as its]
employee.”
Pls.’ Compl. ¶ 59.
The Mingo County Commission is
the municipal seat of government for Mingo County, West
Virginia.
Defendants Greg Smith, John Mark Hubbard, Diane
Hannah and David L. Baisden have each served as commissioners on
the three-member Mingo County Commission.
3
The Mingo County
Commission and its commissioners are named because Mr. Sparks
and Mr. Lockard “may have been acting as employees” of the
commission while engaged in wrongful conduct toward plaintiffs.
Id. ¶ 60.
The Mingo County Board of Education is responsible
for public education in the county.
On September 23, 2011, a physical therapist at
Riverside Elementary in Mingo County reported allegations of
child abuse by plaintiff Tina Grace, who was a teacher at that
same school.
Id. ¶ 8.
A meeting held that day to discuss the
allegations was attended by the superintendent of Mingo County
Schools and an unnamed Mingo County prosecutor.
Id. ¶ 8, 10.
The superintendent reported the alleged abuse to the West
Virginia Department of Health and Human Resources (“DHHR”), as
required by law, and DHHR conducted an investigation.
11-12.
Id. ¶¶
The superintendent suspended Tina Grace with pay on
September 26, 2011.
Id. ¶ 13.
DHHR reported the findings of its investigation into
allegations of child abuse by Tina Grace on December 5, 2011.
Id. ¶ 14.
The DHHR Report “found Tina Grace had committed child
abuse,” though the report did not contain “specific findings of
abuse or refe[r] to any law, rule or regulation governing the
4
same.”
Id. ¶ 28.
The Mingo County School Board terminated Mrs.
Grace from her position teaching special education on December
21, 2011, based on the findings by DHHR.
Id. ¶ 29.
The only teacher to provide negative information about
Mrs. Grace to DHHR investigators was Jennifer Sparks, another
special education teacher and the wife of defendant C. Michael
Sparks.
Id. ¶ 17.
Mrs. Sparks made statements regarding past
incidents involving Mrs. Grace, and the two had “engaged in
several verbal disagreements in recent years.”
Id. ¶ 16, 21.
Those incidents are alleged to have involved “a balancing device
known as the ‘turtle’ and the use of hot sauce for disciplining
an unruly child.”
Id. ¶ 17.
The complaint does not further
discuss the substance of the abuse allegations against Mrs.
Grace.
Mrs. Sparks wanted to remain at Riverside Elementary,
where her children attended school, but a pending consolidation
of schools would result in her transfer elsewhere.
20.
Id. ¶¶ 19-
Because Mrs. Grace had greater seniority, she would have
remained at Riverside.
Id.
As a result, Mrs. Sparks had an
incentive to see Mrs. Grace lose her teaching position in order
to stay at Riverside.
Id. ¶ 22.
Prior to this incident, Mrs.
5
Grace had a distinguished teaching career spanning fifteen years
teaching in Mingo County.
Id. ¶ 30.
In addition to Mrs. Sparks, two teachers’ aides
provided negative information to DHHR regarding Mrs. Grace.
¶ 24.
Id.
Plaintiffs allege that both of these aides have personal
or familial connections to the Sparks family and impliedly
shared the motivation to see Mrs. Grace removed from her
teaching position.
Id. ¶ 25-27.
The DHHR report also quoted defendant Sparks stating
he would “definitely try to prosecute her (Tina Grace) due to
her actions regarding special needs students.”
Id. ¶ 15.
During the April 2012 term of the Mingo County Grand Jury, Mrs.
Grace was indicted on a single count of battery and two felony
counts of child abuse.
Id. ¶ 35.
solely on the DHHR report.
These indictments were based
Id. ¶ 36.
Defendant Sparks
presented the matters for indictment and initialed the
indictments, which were signed by the grand jury foreman,
defendant Lockard.
Id. ¶ 37, 42.
The battery charge related to
an alleged slap of a student’s bare buttocks, and the two
felonies related to Mrs. Grace allegedly forcing a student to
6
use a balancing device for excessive time periods.2
Id. ¶ 38.
Plaintiffs allege that defendant Lockard was
improperly seated on the grand jury because he was
simultaneously employed by the county.
Id. ¶ 43.
Additionally,
plaintiffs allege that defendants Sparks, Lockard, Thornsbury,
and Baisden (a member of the Mingo County Commission) met
secretly before the grand jury considered the indictments to
discuss Mrs. Grace.
Id. ¶ 45.
Defendant Sparks is also alleged
to have made improper statements regarding the charges to the
news media and to have attempted to conceal his conflict of
interest by choosing not to list his wife as a witness.
Id. ¶
49-50.
Mrs. Grace pled not guilty to all three charges.
¶ 48.
Id.
On November 28, 2012, Mrs. Grace and her counsel executed
a Pretrial Disposition Agreement with defendant Sparks providing
that the charges would be dismissed in exchange for Mrs. Grace
dropping the appeal of her termination by the Mingo County
2
Plaintiffs repeatedly allege that incidents involving alleged
abuse had been investigated previously without adverse findings
and that no report of Mrs. Grace’s alleged abuse was made within
the 48 hour period required by law. At this stage, the court
accepts these facts as true, but notes that the complaint stops
short of alleging that the events underlying the complaints of
child abuse did not occur.
7
School Board.
Id. ¶ 51.
On January 10, 2013, defendant
Thornsbury entered an order ratifying this agreement and
directing Mrs. Grace to comply with its terms.
Id. ¶ 52.
On
April 23, 2013, defendant Thornsbury entered an order expunging
the charges against Mrs. Grace.
Id. ¶ 53.
The plaintiffs’ complaints contain fifteen counts.
Several counts jointly name defendants Sparks, Thornsbury, and
Lockard, alleging injuries based on the prosecution of Mrs.
Grace.
Count One alleges that these defendants deprived Mrs.
Grace of her civil rights under color of state law, in violation
of 42 U.S.C. § 1983, “by exposing her to malicious prosecution
as well as causing her to be deprived of her teaching
profession, and livelihood as well [as] her physical and mental
well being . . . .”
Id. ¶ 62.
Count Two alleges that defendant Sparks conspired with
defendants Thornsbury and Lockard to maliciously prosecute Mrs.
Grace in order to benefit Mrs. Sparks’s career.
Id. ¶ 68.
Count Three alleges that defendant Sparks was grossly negligent
in prosecuting Mrs. Grace despite his conflict of interest in
the matter.
Id. ¶ 75-79.
Count Four contends that defendant
Thornsbury was grossly negligent in allowing an unlawful grand
8
jury appointment and attending a meeting with the grand jury
foreman and prosecutor prior to Mrs. Grace’s indictment.
80-84.
Id. ¶
Count Five asserts a negligence claim against defendant
Lockard for his allegedly unlawful presence on the grand jury
and his participation in the meeting with defendants Thornsbury,
Sparks, and Baisden.
Id. ¶ 85-88.
Counts Six through Ten rely on the same facts and each
assert additional claims against defendants Sparks, Thornsbury,
and Lockard.
Count Six alleges grossly negligent infliction of
emotional distress.
Id. ¶ 91.
Count Seven alleges intentional
infliction of emotional distress.
alleges false arrest.
malicious prosecution.
of process.
Id. ¶ 93-94.
Id. ¶ 96-97.
Count Eight
Count Nine alleges
Id. ¶ 99-100.
Count Ten alleges abuse
Id. ¶ 102-103.
Count Eleven is directed against the West Virginia
Supreme Court of Appeals and Administrator Canterbury.
Plaintiffs allege that as defendant Thornsbury’s employer or
supervisor, these defendants are liable for his conduct.
Plaintiffs also argue that the court and its administrator were
negligent in failing to supervise defendant Thornsbury.
105-108.
Id. ¶
Count Twelve is a negligence claim against the Mingo
9
County Commission and its commissioners, arguing that the
commission negligently supervised defendant Lockard.
Id. ¶ 110-
111.
In Count Thirteen, plaintiffs claim that the Mingo
County Board of Education breached its employment contract with
Mrs. Grace when it terminated her.
Plaintiffs allege that Mrs.
Grace never received written notice of her termination or an
opportunity to respond to the grounds upon which it was based.
Id. ¶ 120.
Count Fourteen relies upon the same facts involving
the Board of Education, alleging a due process and equal
protection violation under 42 U.S.C. § 1983.
The final count, Count Fifteen, does not identify
specific defendants and generally claims that the events
described “had an adverse impact on the plaintiffs’ marital
life” resulting in a loss of consortium.
II.
Id. ¶ 127-128.
Motion to Dismiss Standard
Federal Rule of Civil Procedure 8(a)(2) requires a
plaintiff’s complaint to contain “a short and plain statement of
the claim showing . . . entitle[ment] to relief.” Fed. R. Civ.
P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).
10
Rule
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”
Fed. R. Civ. P. 12(b)(6).
The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).
The showing of an “entitlement to relief” must amount to “more
than labels and conclusions . . . .”
Twombly, 550 U.S. at 555.
“[A] formulaic recitation of the elements of a cause of action
will not do.”
Id.; Giarratano v. Johnson, 521 F.3d 298, 304
(4th Cir. 2008).
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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570); see also Monroe v. City of Charlottesville,
579 F.3d 380, 386 (4th Cir. 2009).
The complaint need not, however, “make a case” against
a defendant or even “forecast evidence sufficient to prove an
11
element” of the claim.
Chao v. Rivendell Woods, Inc., 415 F.3d
342, 349 (4th Cir. 2005) (quoting Iodice v. United States, 289
F.3d 270, 281 (4th Cir. 2002)).
“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, [will] not suffice”; however, a complaint “does not
require ‘detailed factual allegations.’”
U.S. 662, 678(2009).
Ashcroft v. Iqbal, 556
Instead, it need only contain “[f]actual
allegations . . . [sufficient] to raise a right to relief above
the speculative level.”
Twombly, 550 U.S. at 555; Iqbal, 556
U.S. at 678 (2009) (a complaint “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”).
Stated
succinctly, the complaint must allege “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 at
569; Giarratano, 521 F.3d at 302.
When evaluating a motion to dismiss, a district court
is required to “‘accept as true all of the factual allegations
contained in the complaint . . . .’”
Erickson, 551 U.S. at 94
(quoting Twombly, 550 U.S. at 555-556); see also South Carolina
Dept. Of Health and Environmental Control v. Commerce and
Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting
Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
Factual
allegations are to be distinguished from legal conclusions,
12
which the court need not accept as true.
Iqbal, 556 U.S. at 678
(“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions”).
The court must also “draw[] all reasonable . . .
inferences from th[e] facts in the plaintiff’s favor . . . .”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
III. Discussion
A.
Defendants Canterbury and the Supreme Court of Appeals
Plaintiffs’ only claim naming defendants Canterbury
and the Supreme Court of Appeals is stated in Count Eleven,
alleging negligence in the supervision of defendant Thornsbury.
Pls.’ Compl. ¶¶ 104-108.
Administrator Canterbury and the
Supreme Court of Appeals jointly move to dismiss, arguing that
the plaintiffs’ claim against them is barred by the Eleventh
Amendment of the United States Constitution.
The defendants
also argue that the plaintiffs inappropriately rely on
respondeat superior or supervisory liability and fail to state a
claim against them under federal or state law.
Plaintiffs repeatedly misstate the law of sovereign
13
immunity in an attempt to defeat what is otherwise a
straightforward argument for these defendants’ immunity from
suit.
In response to their motion to dismiss, plaintiffs argue
that Eleventh Amendment immunity “does not extend to one [who]
is seeking to vindicate his or her federal rights.”
Pls.’ Resp.
Re Canterbury 2 (citing Pinehurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984)).
Plaintiffs also cite Ashcroft
v. Iqbal, 556 U.S. 662 (2008), for the proposition that
sovereign immunity does not apply where a defendant’s
“supervisory failures,” rather than respondeat superior, provide
the basis for a claim.
Id. 2-3.
Neither of these propositions
is a correct statement of the law.
The Eleventh Amendment states, “The Judicial power of
the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”
This immunity protects
unwilling states from damage suits in federal court, along with
their agents and instrumentalities.
See Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429 (1997); Will v. Michigan Dep't of
State Police, 491 U.S. 58, 70–71; Edelman v. Jordan, 415 U.S.
651, 662–63 (1974); Bland v. Roberts, 730 F.3d 368, 389-90 (4th
14
Cir. 2013).
The cases plaintiffs rely upon undercut their own
argument to defeat defendants’ immunity.
In Pennhurst, the
Supreme Court affirmed that “[t]he Eleventh Amendment bars a
suit against state officials when ‘the state is the real,
substantial party in interest.’”
465 U.S. 89, 101 (quoting Ford
Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945)).
In Iqbal, the Supreme Court rejected the plaintiffs’ proposed
distinction between respondeat superior and primary “supervisory
liability.”
556 U.S. at 677 (“In a § 1983 suit or a Bivens
action—where masters do not answer for the torts of their
servants—the term ‘supervisory liability’ is a misnomer”).
The Supreme Court of Appeals is inarguably a state
entity.
Defendant Canterbury is sued only in his official
capacity as operations director of the court, and the official
capacity claim is, “‘in effect, . . . against the governmental
entity employing’” him.
Nivens v. Gilchrist, 444 F.3d 237, 249
(4th Cir. 2006) (quoting Kentucky v. Graham, 473 U.S. 159, 166
(1985)). The state of West Virginia is the real, substantial
party in interest in plaintiffs’ claim against these defendants.
As a result, the Eleventh Amendment bars the claim.
15
It is,
accordingly, ORDERED that Administrator Canterbury and the
Supreme Court of Appeals’ combined motion to dismiss be, and it
hereby is, granted.
B.
Defendant Sparks
In his motion to dismiss the claims against him,
defendant Sparks argues (1) each of the claims is time barred by
the applicable statute of limitations and (2) the doctrine of
absolute immunity shields him from suit based on actions taken
while he served as a state prosecutor.
Plaintiffs contend
neither the limitations periods nor prosecutorial immunity
should defeat their claims.
In particular, the plaintiffs’
response suggests that the discovery rule should toll the
applicable limitations period because Mrs. Grace “did not learn
of the unlawful conduct affecting her matter” until after
defendants Sparks and Thornsbury were charged and convicted of
unrelated misconduct in late 2013.
Pls.’ Resp. Re Sparks 8.
Additionally, plaintiffs argue that defendant Sparks’s actions
were outside the scope of his official duties and thus should
not be protected by prosecutorial immunity.
16
Id. 5-7.
1.
Statute of Limitations Defense
All of the plaintiffs’ claims are subject to either a
one- or two-year limitations period.
See W. Va. Code § 55-2-12.
Count Two (conspiracy to effect malicious prosecution), Count
Eight (false arrest), Count Nine (malicious prosecution) and
Count Ten (abuse of process) are subject to the one-year period.
See Slack v. Kanawha County Hous. and Redevelopment Auth., 188
W. Va. 144, 148 (1992).
The balance of the claims take a two-
year limitations period under the statute.
The parties dispute when the last allegedly wrongful
act by defendants occurred.
Plaintiffs point to the order
expunging Mrs. Grace’s criminal record, entered on April 23,
2013.
Defendant Sparks contends that an expungement cannot be
construed as part of a criminal conspiracy to harm Mrs. Grace,
and, instead, calculates the limitations periods based on the
January 10, 2013 order ratifying the agreement to dismiss the
charges against her.
Even construing the complaint in favor of
the plaintiffs, the court agrees that the expungement hearing
cannot reasonably be characterized as part of the tortious
conduct alleged.
As a result, the plaintiffs’ claims would be
timely if brought within one or two years of January 10, 2013,
17
the last date on which the complaint alleges conduct harmful to
Mrs. Grace.3
As noted above, plaintiffs also argue the discovery
rule should toll the statute of limitations for their claims.
The same tolling rules apply to both the § 1983 and state tort
claims.
See Wallace v. Kato, 549 U.S. 384, 394 (2007) (“We have
generally referred to state law for tolling rules, just as we
have for the length of statutes of limitations.”); Wade v. Danek
Medical, Inc., 182 F.3d 281, 289 (4th Cir. 1999) (stating “in
any case in which a state statute of limitations applies-whether because it is ‘borrowed’ in a federal question action or
because it applies under Erie in a diversity action--the state's
accompanying rule regarding equitable tolling should also
apply.”).
In Dunn v. Rockwell, the Supreme Court of Appeals
3
Plaintiffs repeatedly suggest that defendants’ alleged torts
are continuing because Mrs. Grace is still affected by the loss
of her employment and is reasserting the challenge to her
termination. See Pls.’ Compl. ¶¶ 97, 100, 103. The court finds
the continuing tort doctrine inapplicable to the facts alleged.
While plaintiffs allege continuing injury, “a wrongful act with
consequential continuing damages is not a continuing tort.”
Ricottilli v. Summersville Memorial Hosp., 188 W. Va. 674, 677
(1992) (“[T]he concept of a continuing tort requires a showing
of repetitious, wrongful conduct.”)
18
discussed proper application of the discovery rule to West
Virginia’s statute of limitations:
In tort actions . . . the statute of limitations
begins to run when the plaintiff knows, or by the
exercise of reasonable diligence, 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.
225 W. Va. 43, 52-53 (2009) (quoting Syllabus Point 4, Gaither
v. City Hosp., Inc., 199 W. Va. 706 (1997)).
The court also
held that “whether a plaintiff ‘knows of’ or ‘discovered’ a
cause of action is an objective test.”
Id. at 53.
Application
of the discovery rule generally requires resolution of factual
questions by the trier of fact.
Id.4
Plaintiffs state “[t]he timing for the discovery and
concealment of these matters remains unknown.
However, it
occurred well after the January 2013 time period Mr. Sparks
claims should bar these various causes of action the plaintiffs
4
Defendant Sparks argues that the discovery rule only tolls a
statute of limitations where plaintiffs have shown a defendant’s
actions “prevented them from knowing of the wrong at the time.”
Sparks Reply 5-6. The case defendant Sparks relies upon for
this rule, Cart v. Marcum, 188 W. Va. 241 (1992), was expressly
overruled by the Supreme Court of Appeals in Dunn. See 225 W.
Va. at 50-53. As the law currently stands, action on the part
of the defendant to conceal a cause of action is not required
for the discovery rule to apply.
19
filed in February of this year.”
Pls.’ Resp. Re Sparks 9.
In
particular, plaintiffs suggest that unrelated criminal charges
against defendants Sparks and Thornsbury in late 2013 resulted
in the discovery of facts relevant to their claims.
Even if the plaintiffs' claims were tolled until late
2013, when the plaintiffs learned of the criminal proceedings
against Sparks and Thornsbury, this extension would not save
claims governed by a one-year statute of limitations.
Apart
from their vague averment that the timing of discovery “remains
unknown,” plaintiffs have not identified facts which would toll
the statute of limitations long enough to save those claims.
Because their complaint was filed in 2015, the claims subject to
a one-year statute of limitations in Counts Two, Eight, Nine and
Ten appear to be untimely.
However, as noted in Dunn,
determination of when a plaintiff “knows, or by the exercise of
reasonable diligence, should know” the facts necessary for a
claim to accrue is generally a factual inquiry.
Accordingly,
this issue is not amenable to disposition at this time.
The remaining claims, first asserted against defendant
Sparks in the plaintiffs’ complaint of January 7, 2015, were
timely filed.
Defendant Sparks acknowledges that such claims
20
had to be brought by January 10, 2015, but looks to the February
5, 2015 filing date of the later-filed complaint in this
consolidated action to argue the claims should be barred.
Because all claims asserted against defendant Sparks were
present in the earlier complaint, the claims governed by a twoyear limitations period were timely filed prior to the
applicable deadline.5
2.
Prosecutorial Immunity Defense
Defendant Sparks also argues that he is entitled to
absolute prosecutorial immunity from plaintiffs’ claims.
State
prosecutors enjoy absolute immunity from suit both under the
common law and with respect to claims brought under § 1983.
Imbler v. Pachtman, 424 U.S. 409, 424-27 (1976).
Although the
scope of absolute prosecutorial immunity is vast, it is not
unlimited.
Absolute immunity extends “only to those functions
which are ‘intimately associated with the judicial phase of the
criminal process.’”
Allen v. Lowder, 875 F.2d 82, 85 (4th Cir.
1989) (quoting Imbler, 424 U.S. at 430).
5
The prosecutor bears
The only claims added in the February 5 complaint, and
potentially barred by a two-year limitations, were asserted
against the Mingo County Board of Education.
21
the burden of establishing that absolute immunity is applicable.
Burns v. Reed, 500 U.S. 478, 486 (1991).
Courts apply a functional test to evaluate a
prosecutor’s claim to absolute immunity.
Prosecutorial conduct,
including activity outside the courtroom, is entitled to
absolute immunity if it is “fairly within [a prosecutor’s]
function as an advocate.”
Imbler, 424 U.S. at 430, n. 32.
On
the other hand, “[a] prosecutor’s administrative duties and
those investigatory functions that do not relate to an
advocate’s preparation for the initiation of a prosecution or
for judicial proceedings are not entitled to absolute immunity.”
Buckly v. Fitzsimmons, 509 U.S. 259 (1993) (citing Burns v.
Reed, 500 U.S. 478, 494 (1991)).
The line between “advocacy” and “administrative duties
and . . . investigatory functions” is not always a sharp one.
The court is guided by the contexts in which absolute immunity
has previously been extended.
In addition to statements made in
open court, absolute immunity extends to tasks such as
presenting a case to a grand jury for indictment, Malley v.
Briggs, 475 U.S. 335, 343 (1986), engaging in plea negotiations,
Taylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981), and
22
preparing evidence for presentation at a trial or other hearing,
Buckley, 508 U.S. at 273.
By contrast, absolute immunity does
not protect activities such as holding a press conference,
Buckley, 509 U.S. at 277-278, engaging in investigative activity
before probable cause has been established, id., or providing
legal advice to police investigating a crime, Burns, 500 U.S. at
492-96.6
The Supreme Court has also recognized that certain
administrative activities in a prosecutor’s office are
themselves intimately related with the judicial process, giving
rise to absolute immunity.
In Van de Kamp v. Goldstein, the
court extended immunity to claims that supervising prosecutors
failed to properly train and supervise trial prosecutors, noting
that “the ease with which a plaintiff could restyle a complaint
charging a trial failure so that it becomes a complaint charging
a failure of training or supervision would eviscerate Imbler.”
555 U.S. 335, 347 (2009).
Prosecutorial immunity would be
rendered meaningless if a plaintiff’s artful pleading were
allowed to circumvent a prosecutor’s protection from suit.
6
In many cases the latter activities, while not shielded by
absolute immunity, would still give rise to qualified immunity.
The issue of qualified immunity has not been raised by defendant
Sparks.
23
Here, the gravamen of the plaintiffs’ complaint
clearly relates to actions defendant Sparks took as an advocate
of the state.
All of defendant Sparks’s statements before the
grand jury and at the Pretrial Disposition Hearing are entitled
to absolute immunity.
Likewise, defendant Sparks’s decision not
to seek further investigation from the police after the DHHR
report was issued and his pretrial negotiations with Mrs. Grace
are protected activities related to the prosecution of the case
against her.
Plaintiffs complain of additional actions taken by
defendant Sparks, but none of these actions support a claim
independent of defendant Sparks’s protected prosecutorial
conduct.
Plaintiffs allege that defendant Sparks “participated”
in the DHHR investigation, but the complaint is devoid of facts
suggesting this apart from defendant Sparks’s statement that he
would “definitely try to prosecute her (Tina Grace) due to her
actions regarding special needs students.”
Pls.’ Compl. ¶ 15.
A statement of intent to prosecute cannot fairly be
characterized as investigatory.
While defendant Sparks is not
entitled to absolute immunity for his alleged “inflammatory
statements” to the press, the complaint does not allege
24
sufficient facts to support a claim based on those statements.
See Pls.’ Compl. ¶ 49.
Finally, plaintiffs allege that defendant Sparks met
with defendants Thornsbury, Baisden and Lockard prior to the
presentation of Mrs. Grace’s case to the grand jury.
Compl. ¶¶ 45-46.
Pls.’
The court finds that defendant Sparks’s
alleged participation in this meeting would be protected by
absolute immunity.
First, the alleged meeting between defendants related
to the preparation of the indictment against Mrs. Grace.
Even
if plaintiffs are correct that such a meeting was improper, it
was still undisputedly related to the judicial process.
Notably, plaintiffs repeatedly state that the only evidence upon
which Mrs. Grace was indicted was the DHHR report; there is no
suggestion that this pre-indictment meeting resulted in the
creation or presentation of false testimony to the grand jury.
The courts have long acknowledged that preserving prosecutorial
immunity involves a choice between subjecting innocent
prosecutors to suit and shielding some misconduct from review:
As is so often the case, the answer must be found
in a balance between the evils inevitable in either
alternative. In this instance it has been thought in
the end better to leave unredressed the wrongs done by
25
dishonest officers than to subject those who try to do
their duty to the constant dread of retaliation.
Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) (L. Hand,
J.).
The question before the court is whether defendant
Sparks’s alleged meeting with defendants Thornsbury and Lockard
falls within the protected sphere of a prosecutor’s advocacy for
the state.
Finding it does, the court does not have occasion to
analyze the alleged illegality of that meeting, discussed at
length by plaintiffs.
Defendant Sparks was acting within his role as an
advocate for the state when he appeared before the grand jury to
present Mrs. Grace’s indictment, when he negotiated a Pretrial
Disposition Agreement to dispose of the claims against her, and
to the extent the pre-indictment meeting alleged by plaintiffs
occurred.
As discussed above, none of the other actions
allegedly taken by defendant Sparks would give rise to
actionable claims.
Accordingly, the claims brought against him
are foreclosed by absolute immunity.
The court ORDERS that the
claims against defendant Sparks be, and they hereby are,
dismissed.
26
C.
Defendant Thornsbury
Defendant Thornsbury moves to dismiss the claims
against him based on the applicable statute of limitations, his
absolute immunity from suit as a judicial officer, and the
plaintiffs’ failure to state a claim against him.
For the
reasons stated above, the court cannot conclude that any of the
plaintiffs’ claims are barred by the statute of limitations at
this juncture.
See supra pp. 16-21.
However, the court
concludes that as a judicial officer defendant Thornsbury is
entitled to absolute immunity from the plaintiffs’ claims.
The judge’s absolute immunity for official acts taken
within his jurisdiction is beyond question.
A judge is subject
to civil suit based on his conduct only where he acts “in the
‘clear absence of all jurisdiction.’”
Stump v. Sparkman, 435
U.S. 349, 357 (1978) (quoting Bradley v. Fisher, 80 U.S. 335,
351 (1871)).
For purposes of this analysis, “the scope of the
judge’s jurisdiction must be construed broadly.”
U.S. at 356.
Stump, 435
Like a prosecutor, “[a] judge will not be deprived
of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority.”
27
Id.
The plaintiffs identify the following actions taken by
defendant Thornsbury as the basis for their claims: (1) meeting
with defendants Sparks, Baisden and Lockard to discuss Mrs.
Grace at some point prior to the grand jury indictment, (2)
allowing an improper grand juror to be seated, (3) ratifying the
Pretrial Disposition Agreement made between Mrs. Grace,
represented by her counsel, and defendant Sparks, and (4)
entering an expungement order.
None of these actions were
clearly beyond defendant Thornsbury’s jurisdiction as a circuit
judge in Mingo County at the time.
Plaintiffs repeatedly assert that defendant
Thornsbury’s conduct was “decidedly unlawful,” “surreptitious,”
and “improper.”
Pls.’ Resp. Re Thornsbury 4-5.
While the court
accepts the allegations in the complaint as true and makes all
favorable inferences in favor of the plaintiffs for purposes of
the motions to dismiss, it need not credit plaintiffs’ legal
conclusions.
Young v. City of Mount Ranier, 238 F.3d 567, 577
(4th Cir. 2001) (“The presence . . . of a few conclusory legal
terms does not insulate a complaint from dismissal under Rule
12(b)(6) . . .”).
The facts alleged simply do not suggest any
action taken by defendant Thornsbury in “the clear absence of
all jurisdiction.”
Accordingly, defendant Thornsbury is
28
entitled to absolute judicial immunity.
The court ORDERS that
defendant Thornsbury’s motion to dismiss be, and it hereby is,
granted.
IV.
Conclusion
As set forth above, the court has evaluated all the
claims challenged by the defendants’ motions to dismiss.
For
the reasons discussed, the court concludes as follows:
The joint motion to dismiss of defendants Canterbury
and the West Virginia Supreme Court of Appeals is granted and
the court ORDERS the claims against those defendants be, and
they hereby are, dismissed.
The motion to dismiss of defendant Sparks is granted
and the court ORDERS the claims against him be, and they hereby
are, dismissed.
The motion to dismiss of defendant Thornsbury is
granted and the court ORDERS the claims against him be, and they
hereby are, dismissed.
29
The Clerk is directed to transmit copies of this order
to counsel of record and any unrepresented parties.
DATED:
November 19, 2015
John T. Copenhaver, Jr.
United States District Judge
30
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