Grace et al v. Sparks et al

Filing 171

MEMORANDUM OPINION AND ORDER granting the 162 MOTION by David L. Baisden, Diane Hannah, John Mark Hubbard, Greg Smith, The Mingo County Commission for Leave to File their Motion for Summary Judgment Out of Time; directing that the caption in this case be modified to reflect the correct spelling of defendant Diann Hannah's name, and to update Ms. Hannah's designation on the docket; granting the motion for summary judgment filed by the Mingo County Commission and its present or former Commissioners Greg Smith, John Mark Hubbard, Diann Hannah and David L. Baisden. Signed by Judge John T. Copenhaver, Jr. on 7/25/2016. (cc: counsel of record; any unrepresented parties) (tmh)

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
DIANN 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 is a motion for leave to file for summary
judgment out of time by defendant Mingo County Commission and
its present or former Commissioners in their official
capacities, Greg Smith, John Mark Hubbard, Diann Hannah and
David L. Baisden, filed on June 2, 2016.1

Plaintiffs filed a

response on June 5, 2016 addressing the movants’ summary
judgment arguments and did not oppose the motion to file out of
time.

Accordingly, the court ORDERS that the motion for leave

to file out of time be, and it hereby is, granted.

As the

movants’ summary judgment motion has been fully briefed, the
court proceeds to consider that motion.

I.

Factual and Procedural Background

The plaintiffs’ allegations in this case are set forth
in detail in the courts’ orders granting motions to dismiss (ECF
No. 105) and motions for summary judgment (ECF No. 154) brought
by other defendants.

The plaintiffs’ claims all relate to

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The complaint and previous filings have referred to defendant
Hannah as “Diane Hannah,” but the instant motion reflects that
her name is properly spelled “Diann Hannah.” The court hereby
ORDERS that the caption in this case be modified to reflect this
correction, and the clerk is directed to update Ms. Hannah’s
designation on the docket accordingly.
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events in late 2011 and early 2012, during which time plaintiff
Tina Grace (“Grace”) was investigated, criminally charged, and
terminated from her employment as a special education teacher
based on allegations that she had abused children in the class
in which she taught.

The criminal charges against Grace were

dropped as part of a deferred prosecution agreement and
ultimately expunged.

Of particular relevance for present

purposes, plaintiffs have alleged claims based on defendant Jay
Lockard’s service as the foreman of the grand jury which
indicted Grace, arguing that Lockard’s presence on the grand
jury was illegal because he was employed by the Commission as a
computer technician.

The Mingo County Commission, and its Commissioners in
their official capacities,2 are named as a defendant in two of
the complaint’s fifteen counts.

In Count One, which is

primarily addressed to the conduct of other defendants,
plaintiffs allege that the Commission “[was] aware or should
have been aware” that a pattern or practice of allowing county
officials, including Lockard, to serve as grand jury forepersons
infringed upon Grace’s rights under 42 U.S.C. § 1983.

2

In Count

For ease of reference, the court refers to the Mingo County
Commission and its individual Commissioners collectively as “the
Commission.”
3

Twelve, plaintiffs allege that “[t]he failure of the Mingo
County Commission and commissioners in their official capacity
for knowing or failing to know the unlawful conduct of defendant
Lockard amounted to negligence and constituted a proximate cause
for all damages Tina Grace suffered as a result of defendant
Lockard’s conduct.”

In its order granting defendant Lockard’s motion for
summary judgment, the court concluded that Lockard’s employment
by the county as a computer systems administrator did not
disqualify him from jury service under the state statute
precluding an “officeholder” from serving on a jury.

As a

result, plaintiffs’ claims based on Lockard’s allegedly illegal
jury service failed as a matter of law.

The court also

concluded that plaintiffs had not provided factual support for
their claim that a secret meeting involving Lockard and other
county actors occurred prior to Grace’s indictment, finding that
the only evidence relating to such a meeting “was based on rumor
and assumptions” on the part of the plaintiff’s witness, Hester
Keatley.

(ECF No. 154 at 20).

The Commission seeks summary judgment on the grounds
that plaintiffs have not pled a factual basis for their claims
against it.

In particular, the Commission argues that because

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the claims against Lockard fail, any argument that the
Commission violated Grace’s rights or negligently harmed her
through its employment of Lockard must fail as well.

The

Commission also points out that because respondeat superior and
vicarious liability claims are not actionable under 42 U.S.C. §
1983, the allegations relating to Lockard’s behavior--even
assuming wrongdoing on Lockard’s part--would not support a claim
against the Commission absent a “policy or custom” which
resulted in injury to the plaintiffs.

See Monell v. New York

City Dept. of Soc. Svcs., 436 U.S. 658, 694 (1978).

In opposition to summary judgment, plaintiffs argue
that the court’s grant of summary judgment in favor of Lockard
should not be dispositive of the claims against the Commission.
Plaintiffs argue that “two undisputed critical facts” preclude
summary judgment on the remaining claims.
(ECF No. 164 at 2).

Pls’ Mem. in Opp.

First, plaintiffs argue that because

Lockard’s service on the grand jury followed that of another
county official who was allegedly disqualified, the plaintiffs
have adequately alleged a “pattern or practice” of the
Commission allowing its employees to serve on grand juries.
Plaintiffs cast this as a direct claim against the Commission
for “engag[ing] in a pattern of conduct impugning the
composition (and deliberations) of the grand jury.”
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Id. at 3.

Second, plaintiffs argue that a factual dispute remains
regarding the role of one of the commissioners, David Baisden,
in the alleged meeting prior to the grand jury deliberations and
subsequent violation of grand jury secrecy.

In its reply, the Commission argues that it has no
official responsibility for the selection or oversight of grand
jurors and could not have prevented Lockard’s or any other
individual’s service on the grand jury even if such service had
been questionable.

The Commission also argues that plaintiffs

have failed to produce evidence that Baisden was ever privy to
confidential grand jury deliberations.

II.

Summary Judgment Standard

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).

A “genuine” dispute of

material fact exists if, in viewing the record and all

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reasonable inferences drawn therefrom in a light most favorable
to the non-moving party, a reasonable fact-finder could return a
verdict for the non-movant.

Anderson, 477 U.S. at 248.

On the

other hand, “[f]actual disputes that are irrelevant or
unnecessary will not be counted.”

Id.

The moving party has the initial burden of showing -“that is, pointing out to the district court -- that there is an
absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party satisfies this burden, then the non-moving party
must set forth specific facts, admissible in evidence, that
demonstrate the existence of a genuine issue of material fact
for trial.

See id. at 322-23; Fed. R. Civ. P. 56(c), (e).
When examining the record, the court must neither

resolve disputes of material fact nor weigh the evidence,
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995),
nor make determinations of credibility, Sosebee v. Murphy, 797
F.2d 179, 182 (4th Cir. 1986).

Instead, the party opposing the

motion is entitled to have his or her version of the facts
accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor.

Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979).

Along those lines,

inferences that are “drawn from the underlying facts . . . must
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be viewed in the light most favorable to the party opposing the
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).
At bottom, a party is entitled to summary judgment if
the record as a whole could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).

Williams v. Griffin, 952 F.2d

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.

III. Discussion

The court concludes that summary judgment in favor of
the Commission follows as a necessary result of the earlier
order granting summary judgment in favor of defendant Lockard.
While plaintiffs strain to distinguish their claims against the
Commission from their claims against Lockard, their attempts to
do so are unavailing.

In both Count Two and Count Twelve of the

complaint, plaintiffs explicitly allege that the Commission is
liable inasmuch as it is responsible for Lockard’s illegal
service on the grand jury.

Because the court has concluded that

such service was not in fact illegal, no viable claim remains
against the Commission.

In reaching this conclusion, the court
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has considered the two facts plaintiffs suggest should preclude
summary judgment: 1) that Lockard’s grand jury service followed
the service of homeland security director Jarrod Fletcher,
suggesting the Commission had an independent pattern or practice
of allowing illegal grand jury service by county employees, and
2) that Commissioner David Baisden allegedly disclosed
confidential information regarding grand jury deliberations.
However, neither of these facts is material to the plaintiffs’
remaining claims for the reasons set forth below.
First, the court notes that plaintiffs continue to
rely on bare factual assertions based on citations to their
complaint, rather than any independent evidence.

At this

juncture, plaintiffs cannot defeat summary judgment without
presenting competent evidence to support their claims.

For

example, while plaintiffs’ arguments have repeatedly referenced
the illegal jury service of Jarrod Fletcher, who allegedly
served on the grand jury prior to Lockard, no evidence has been
adduced regarding that service.

Even assuming that plaintiffs

could show that Fletcher served illegally on a prior grand jury,
however, they could not prevail on a claim against the
Commission based on Fletcher and Lockard’s service.

It is

undisputed that the Commission does not have the authority to
control the selection of grand jurors.

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In fact, because West

Virginia Code § 52-1-21 excuses employees from employment during
jury service, any attempt by the Commission to prevent its
employees from serving on a grand jury would have itself run
afoul of the law.

Fletcher’s allegedly illegal service did not

impact the plaintiffs, and because the court has already
concluded that Lockard’s service was lawful, there is no
material dispute regarding whether a pattern or practice of
unlawful jury service was facilitated by the Commission.

Similarly, the court’s earlier findings regarding the
alleged secret meeting involving defendants Lockard and Baisden
are dispositive of the plaintiffs’ current arguments that the
Commission, through Baisden, is liable for violating the secrecy
of the grand jury.

As the court previously explained with

respect to the secret meeting:
Lockard stated in his affidavit supporting summary
judgment that this meeting did not occur. (Lockard Ex.
A, ECF No. 116 at 2). David Baisden, the commissioner
allegedly present at the meeting, similarly stated in a
sworn affidavit that no such meeting occurred. (Lockard
Ex. E, ECF No. 117 at 14).
Grace testified at her
deposition that she believes this meeting took place
because she “received a phone call from [her friend]
Hester Keatley stating that there had -- someone had
told her that there had been a meeting between Mr.
Sparks, Mr. Thornsbury, Jay Lockard, David Baisden, and
Jarrett Fletcher regarding what to do about [Grace’s]
case.” (Lockard Ex. B, ECF No. 116 at 5).
Keatley,
at her own deposition, explained that she learned about
the status of Grace’s case while visiting Baisden’s
office to inquire about the status of a criminal case
against her son. (Lockard Ex. C, ECF No. 117 at 2).
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According to Keatley, Baisden told her he would look
into her son’s case, left his office, then returned a
few minutes later and told her that both her son and
Grace would be charged with battery. Id. at 6. Keatley
expressly testified that Baisden did not tell her whom
he asked about these cases, and in particular she stated
that her assumption that Lockard was present was based
only on “rumors.” Id. at 7.
(ECF No. 154 at 19).

In addition to the fact that no claim

against the Commission based on this conversation was included
in the plaintiffs’ complaint, there is simply no evidence that
the conversation was the result of impermissible contact with
the grand jury.

The only statement by Baisden at issue is his

prediction regarding the charges Grace and Keatley’s son would
face.

As noted previously, the charges actually brought against

Grace consisted of a misdemeanor battery charge as well as two
felony counts of child abuse, undercutting the assertion that
Baisden’s comment was based on confidential knowledge of the
charges pending against Grace.

In sum, the record as a whole does not support any
viable claim against the Commission, even taking the evidence
properly presented in the light most favorable to the
plaintiffs.

Lockard’s jury service was lawful, the Commission

had no control over the jury service of its employees, and no
competent evidence suggests that the Commission has engaged in a
pattern or practice of subverting grand jury proceedings.

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ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
Accordingly, the court under grant Civ. movants’ motion for with
01/28/2016
Motions will F.R. the P. 12(b), together
supporting briefs, memoranda, affidavits, or other
summary judgment. matter in support thereof. (All motions
such
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day forIV. Conclusion
Rule 26(f) meeting.

02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
For the foregoing reasons, it is ORDERED that the
motion for summary judgment filed by at 4:30 p.m. at the Robert C.
02/22/2016
Scheduling conference the Mingo County Commission
Byrd United States Courthouse in Charleston, before
and its present or undersigned, unless canceled. Lead counsel
the former Commissioners Greg Smith, John Mark
directed to appear.
Hubbard, Diann Hannah and David L. Baisden be, and it hereby is,
02/29/2016
Entry of scheduling order.
granted.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The
The
Notice to all
to counsel of
parties.

Clerk is requested to transmit this of this
Clerk is directed to transmit copies Order andorder
counsel of record and to any unrepresented
record and any unrepresented parties.
DATED:
DATED:

July 5, 2016
January25, 2016

John T. Copenhaver, Jr.
United States District Judge

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