MEMORANDUM IN SUPPORT OF MOTION TO …ftpcontent.worldnow.com/wvir/documents/Support-for...Boston,...
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION SHERRY LYNN THORNHILL, ) ) Plaintiff ) ) Civil Action No. 3:15CV00024 v. ) ) GLENN AYLOR, et al., ) ) Defendants. )
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS by CENTRAL VIRGINIA REGIONAL JAIL AUTHORITY
Defendant Central Virginia Regional Jail Authority (“Authority”), by counsel,
submits this memorandum in support of their motion to dismiss this action brought by
plaintiff Sherry Lynn Thornhill (“Thornhill”), administrator for decedent Shawn
Christopher Berry (“Berry”).
ALLEGATIONS
Thornhill filed this Complaint alleging claims pursuant to 42 U.S.C. §1983 and
Virginia Code §8.01-50, et seq. for wrongful death, arising out of the circumstances
surrounding Berry’s death at CVRJ on August 9, 2014.1 2 The Medical Examiner of
Virginia concluded in an autopsy dated October 17, 2014, that Berry died accidently from
the adverse effects of heroin and ethanol. Exhibit A is a copy of an article from the
December 13, 2014, Daily Progress which references the conclusions of the Chief
Medical Examiner of Virginia.
1 Complaint ¶ 1. 2 References to paragraphs in this motion are all to those contained in the Complaint filed on June 2, 2015. (Doc. 1).
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Superintendent Frank Dyer, mailed counsel for Thornhill a complete copy of all
records in the Authority’s possession related to the incarceration, medical treatment and
death of Berry on May 15, 2015. This included a CD with videos of his treatment on
August 9, 2014 in the booking area of the Central Virginia Regional Jail (“CVRJ”), all
incident reports prepared by correctional and medical staff, medical reports and booking
reports. See Dyer Affidavit attached hereto as Exhibit B.
Thornhill’s Complaint, filed on June 3, 2015, does not reflect any honest
consideration of these records; instead, it paints a grossly distorted picture of what
happened while Berry was at CVRJ from August 7, 2014 until August 9, 2014. The
Complaint alleges the Authority and the other Defendants, F. Glenn Aylor, Christie M.
Apple-Figgins, Erin O. LaPanta, Jasmine Buckner-Jones, Robert J. Counts, Jeremy D.
Boston, Mike Horrocks, Eric Last, Thomas Vogt and Amanda Pitts deliberately tortured
and killed Berry. The phrases “deliberate torture and killing of Berry,” and “actively
participated in Berry’s torture . . . which resulted in Berry’s death.” appear in the
Complaint twelve times.3 Thornhill uses phrases like “performed them in a way designed
to inflict maximum pain and suffering on Berry,” and “Berry suffered in pain and
delirium for more than 12 hours on August 9, 2014,” to misrepresent what happened and
set forth claims for relief that clearly ignore the records the Authority provided and the
conclusion of the Medical Examiner of Virginia.
The only other allegations in the Complaint that pertain to the Authority are they
“ousted Aylor, CVJR’s [sic] former Superintendent, from his command.”4 These
allegations are false, deliberately misleading calumnies submitted with blatant disregard
3 Complaint passim. 4 Complaint ¶ 2.
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for the obligation to draft a pleading “to the best of a person’s knowledge, information
and belief, formed after an inquiry reasonable under the circumstances.” Fed. R. Civ. P.
11(b). See affidavits of Glenn Aylor, Troy Wade and Davis Lamb attached hereto as
Exhibit C.
Thornhill asks this Court appoint a “Federal Receiver to manage the affairs of
CVRJ until such time as CVRJ, and the CVRJ Counties, expend sufficient resources to
ensure that CVRJ provides adequate medical care for those imprisoned at CVRJ.”5 6
Thornhill concludes that “each defendant” failed to provide Berry care, which caused his
death while reciting the legal standards for both causes of action.7
The Authority respectfully submits that Thornhill fails to state a claim upon which
relief may be granted against it and; therefore, the Authority should be dismissed as a
party to this action.
ARGUMENTS
I. MOTION TO DISMISS STANDARD
Although a court accepts factual allegations as true for the purposes of a motion to
dismiss under Rule 12(b)(6), it does not necessarily accept legal conclusions as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007).
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.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
5 Complaint ¶ 3. 6 See also Exhibit B (Superintendent Dyer citing statistics to indicate CVRJ staff encounters and treats inmates withdrawing from drug and alcohol on a routine basis). 7 Complaint ¶¶ 61-64, 68-70.
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Id. (citations omitted). “Plausibility” is more than mere possibility and must be reviewed
in context with the court’s “judicial experience and common sense.” Id. at 678-679.
It is respectfully submitted that plaintiff’s pleadings fail to state a 42 U.S.C. §
1983 claim against the Authority and, therefore, the Authority should be dismissed with
respect to Count I. It is also respectfully submitted that plaintiff’s pleadings fail to state a
wrongful death claim against the Authority under Va. Code § 8.01-50 and, therefore, the
Authority should be dismissed with respect to Count II.
II. THE ALLEGATIONS DO NOT STATE A POLICY OR CUSTOM ATTRIBUTABLE TO THE AUTHORITY AS IS REQUIRED
FOR A CLAIM UNDER 42 U.S.C. § 1983
A violation of 42 U.S.C. § 1983 requires that a person8 acting under color of state
law or custom cause another person to be deprived of his rights, privileges, or immunities
secured by the Constitution and laws. A municipality or local government entity can only
be held liable under 42 U.S.C. § 1983 if execution of its “policy or custom” causes a
constitutional violation.9 Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (citing
Hall v. Marion School Dist. No. 2, 31 F.3d 183, 195 (4th Cir. 1994). Local government
entities are not liable under respondeat superior because the text of 42 U.S.C. § 1983
limits application to when an entity “subjects, or causes to be subjected” to a
constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-692 (1978).
Although a policy or custom need not be formally approved, municipal liability
can only result from a policy or custom that is “(1) fairly attributable to the municipality
as its ‘own,’ and is (2) the ‘moving force’ behind the particular constitutional violation.”
8 “Municipalities” and other local government bodies are treated the same and are “persons” under 42 U.S.C. § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). 9 An entity may also be liable for a single decision in some circumstances, Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (citation omitted), but plaintiff has not pointed to any single decision in her Complaint.
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Spell v. McDaniel, 824 F.2d 1380, 1385-1387 (4th Cir. 1987) (quoting Monell, 436 U.S.
at 683; Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). “Policy” includes “a ‘course of
actions consciously chosen from among various alternatives’ respecting basic
governmental functions, as opposed to episodic exercises of discretion in the operational
detail of government.” Id. at 1386. An official may have “final authority” to make a
policy, and a policy made by an official may be attributed to a municipality. See id. at
1387. For an official-made policy to be attributed to a municipality, the authority to make
that policy must be “delegated” from the municipality or “conferred” from a higher
authority, i.e. the state. Id. A delegation of policymaking authority may be “express” or
“implied from a continued course of knowing acquiescence.” Id. “Custom” is defined as
“persistent and widespread . . . practices of [municipal] officials [which] [a]lthough not
authorirized by written law, [are] so permanent and well-settled as to [have] the force and
effect of law.” Id. at 1386 (quoting Monell, 436 U.S. at 691). Custom of officials and
employees may only be attributed to a municipality
when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary . . . . Similarly, where a municipal policymaker has actual or constructive knowledge of such a course of customary practices among employees subject to the policymaker’s delegated responsibility for oversight and supervision, the “custom or usage” may fairly be attributed to the municipality as its own.
Id. at 1387 (citations omitted).
A policy or custom that is not facially unconstitutional must be shown to be the
“proximate” cause of a constitutional violation by an “affirmative link.” Id. at 1388. A
policy must at least tacitly approve the constitutional violation. Id. A single constitutional
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violation does not prove a policy or custom much less the connection between the policy
or custom and the violation. See id.
Beyond the lack of any underlying constitutional violation, which will be argued
at subsequent stages of this litigation, plaintiff has not sufficiently pled a claim against
the Authority under 42 U.S.C. § 1983 in this case. To begin, plaintiff does not allege that
the Authority or its members directly violated Berry’s constitutional rights.10 Nor is it
alleged that the Authority omitted to enact any pertinent policies or that those policies
were inadequate, causing a constitutional violation. Rather, plaintiff recites much of the
Authority’s alcohol and heroin withdrawal policies and alleges those policies were not
followed, which caused pain and suffering to Berry.11 Plaintiff further alleges particular
Authority policies were not followed.12 Several failures to medically treat Berry are
alleged, but those failures are not alleged to have been caused by the policies in effect.13
Plaintiff also hints the Authority has a policy of limiting revenues so much that medical
treatment was unaffordable by alleging that the Jail should be appointed to a Federal
Receiver “until such time as [the Authority], and the [Authority] Counties, expend
sufficient resources to ensure that [the Authority] provides adequate medical care . . . .”14
However, the plaintiff does not point to one single decision by the Authority or even a
statement by an individual member in support of that amorphous accusation.
Since the Authority did not cause or allow any constitutional violation nor were
there any inadequacies with respect to the policies formally enacted by the Authority,
10 Presumably, allegations such as “CVRJ tortured and then killed Berry,” Complaint ¶ 16, are allegations against CVRJ staff rather than the Authority or the physical jail facility. 11 Complaint ¶¶ 30-40. 12 Complaint ¶¶ 50, 57. 13 Complaint ¶ 51. 14 Complaint ¶ 3.
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plaintiff must plead that either: 1) the Authority secretly enacted an unwritten policy to
subvert its own written policies, 2) the policy of an official can be attributed to the
Authority, or 3) that the custom of an official or employee can be attributed to the
Authority. Plaintiff alleges that had the medical staff and officer defendants “not been
working for Aylor and CVRJ,” they would have performed different acts including
“following the written policies of CVRJ.”15 In conclusion, plaintiff alleges the
Defendants “acted jointly,” “fail[ed] to follow their own written policies,” and
“knowingly subjected Berry to substantial pain and suffering, . . . , and, ultimately, his
death.”16 These allegations are not sufficient to plead the Authority intentionally directed
CVRJ staff to ignore its own enacted policies.
Inasmuch as plaintiff insinuates either of the vicarious liability theories, essential
factual allegations are missing or posed as unsupported legal conclusions. Plaintiff
insinuates that Aylor intimidated subordinates to create a climate where medical needs
were ignored in contradiction of the Authority’s enacted policies with the apparent
motive of saving money.17 A conscious decision like this would constitute a policy by an
official, which could be attributed to the Authority if Aylor were authorized to make that
policy. However, plaintiff does not allege that Aylor was delegated or conferred the
ability to supersede Authority policy, either expressly or impliedly.
In order to sufficiently plead a custom attributable to the Authority, plaintiff
would have to allege that the Authority knew or should have known about a custom, a
persistent and widespread practice that caused a constitutional violation. Because the
plaintiff’s allegations are centered on events that took place over a period of less than
15 Complaint ¶¶ 52, 53. 16 Complaint ¶¶ 61, 63. 17 See Complaint ¶¶ 2, 5, 52 - 54.
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three days, and because there is no allegation of any misconduct prior to or since that
three-day window, plaintiff has not alleged the Authority had knowledge of any custom
as required. In effect, plaintiff has not alleged any custom or any custom that may be
attributable to the Authority. Finally, because there are no policies or customs to attribute
to the Authority, there can be no causal link to any purported constitutional violation.
Any claims specific to the Authority found in the complaint are conclusory and do
not meet the plausibility threshold. Without any supporting allegations, the plaintiff has
not sufficiently pled a claim under 42 U.S.C. § 1983 against the Authority. Accordingly,
it is respectfully submitted that the Authority should be dismissed from Count I of this
action.
III. THE ALLEGATIONS DO NOT STATE ANY WRONGFUL ACT OR NEGLECT AS IS REQUIRED FOR A CLAIM UNDER VA. CODE § 8.01-50
Plaintiff has not alleged any specific act or omissions which may be attributed to
the Authority. In turn, there are no acts or omissions to analyze for negligence, much less
gross negligence. Plaintiff’s vague insinuations that the Authority failed to adequately
budget for medical expenses are not sufficient. It is, therefore, respectfully submitted that
the Authority should be dismissed from Count II of this action.
IV. THE AUTHORITY IS ENTITLED TO SOVEREIGN IMMUNITY
Although this Court held a regional jail is not entitled to sovereign immunity,
Boren v. Northwestern Reg’l Jail Auth., No. 5:13cv013 2013 WL 5429421 (W.D. Va.
Sept. 30, 2013), sovereign immunity is a question of state law. The Eastern District of
Virginia held regional jails are entitled to sovereign immunity. Dowdy v. Pamunkey Reg’l
Jail Auth., No. 3:14cv003 2014 WL 2002227 (E.D. Va. May 15, 2014); but see
Heckenliable v. Virginia Peninsula Jail Auth., No. 4:06cv25, 2006 WL 3196750 (E.D.
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Va. Nov. 1, 2006) (Eastern District holding a regional jail is not entitled to sovereign
immunity). The critical difference between the analyses in Boren and Dowdy is that the
court in Boren held a regional jail would need to exhibit “all six essential attributes” of a
municipal corporation in order to have sovereign immunity, whereas the court in Dowdy
considered the number of attributes as but one factor. Compare Boren 2013 WL 5429421
at *4 (citing Heckenliable, 2006 WL 3196750 and Richmond v. Richmond Metro. Auth.,
210 Va. 645 (1970) for the proposition that all six attributes are essential); Dowdy 2014
WL 2002227 at *2-3 (citing Hampton Rds. Sanitation Dist. Comm’n v. Smith, 193 Va.
371 (1952) for the proposition that all attributes are not required).18
Based on the analysis in Dowdy, it is submitted that this Court should find the
plaintiff’s wrongful death claim against the Authority barred by sovereign immunity.
V. THE REQUESTED RELIEF OF PLACING THE JAIL IN FEDERAL RECEIVERSHIP IS NOT LEGAL OR EQUITABLE
As a prime example of the intentionally distorted hyperbole that permeates the
complaint, plaintiff seeks the equitable remedy of having CVRJ placed in federal
receivership.19 In addition to the tenet that equity is only appropriate when no remedy at
law is sufficient, see Buchanan v. Buchanan, 174 Va. 255, 274 (1940), 18 U.S. Code §
3626 further limits remedies in prisoner civil suits against prisons.
18 It is noteworthy that in Richmond Metro. Auth., the Supreme Court of Appeals of Virginia held the entity at issue was in fact a “municipality” for the purposes of a tax refund under Va. Code § 58-822 (repealed) but did not disturb its observation in Smith that some “entities are not municipal corporations in the strict sense of the term, but where it appears that the legislature intended that they should be so construed, the designation ‘municipal corporation’ is often used in a broad or generic sense to include those ‘quasi-municipal corporations’ which are created to perform an essentially public service.” See Richmond Metro. Auth., 210 Va. 645; Smith, 193 Va. at 375. Although the court identified six municipal attributes directly from the enabling legislation of the Sanitation District in Smith, it did not rigidly establish those attributes as an exhaustive list or as prerequisites for treating entities as municipalities in that case. 19 Complaint ¶¶ 3, 64.
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Receivership of a jail is only appropriate in the most awful circumstances of
widespread constitutional violations. See Plata v. Schwarzenegger, No. C01-1351 TEH,
2005 WL 2932253, *1 (N.D. Cal. Oct. 3, 2005). In Plata, the Northern District of
California established a federal receiver to control delivery of medical services to inmates
of California Department of Corrections after plaintiffs in a class action demonstrated
drastic conditions including the “uncontested fact that, on average, an inmate in one of
California's prisons needlessly dies every six to seven days due to constitutional
deficiencies in the CDCR's medical delivery system.” Id. The court in Plata did not
establish the federal receiver until the defendants failed to remedy the conditions for three
years after a stipulation for injunctive relief was entered. Id. Thornhill comes no where
near alleging facts that would warrant placing a Virginia regional jail20 in federal
receivership. In effect, plaintiff asks the Court to reason inductively from one three-day
period to find, first, a constitutional violation and, second, a systemic problem that can
only be corrected by most extreme remedy.
It is respectfully submitted that placing CVRJ under a federal receiver is not an
appropriate remedy and that the Court should not consider that remedy even if the
Authority is not dismissed from this action.
CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court dismiss with
prejudice the Authority as a party to this action on both Counts I and II and dismiss with
prejudice the Complaint to the extent it seeks appointment of a federal receiver, along
with such other and further relief as is just.
20 Complaint ¶ 6 (noting CVRJ was established pursuant to Virginia law and is funded by the counties it serves).
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11
CENTRAL VIRGINIA REGIONAL JAIL AUTHORITY By Counsel /s/ Helen E. Phillips Helen E. Phillips, VSB 29708 Allen & Newman, PLLC P.O. Box 1119 Bristol, Virginia 24203 276-644-5560 276-644-5561 (fax) [email protected] /s/ A. Ross Phillips A. Ross Phillips, VSB Allen & Newman, PLLC P.O. Box 1119 Bristol, Virginia 24203 276-644-5560 276-644-5561 (fax) [email protected]
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of August, 2015, the foregoing pleading was electronically filed with the Clerk of this Court using the CM/ECF system which will send notification of such filing to the following counsel of record: Robert O. Wilson Michael J. Rotbert 2 South Main Street, Suite B 1050 Connecticut Avenue, N.W. Harrisonburg, VA 22802 10th Floor Washington, D.C. 20036 /s/ Helen E. Phillips
Helen E. Phillips
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