IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION

Transcription

1 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 and Virginia Code , et seq. for wrongful death, arising out of the circumstances surrounding Berry s death at CVRJ on August 9, 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, (Doc. 1). 1 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 1 of 11 Pageid#: 70

2 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, 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, 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. 2 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 2 of 11 Pageid#: 71

3 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, Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 3 of 11 Pageid#: 72

4 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 It is respectfully submitted that plaintiff s pleadings fail to state a 42 U.S.C 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 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 A violation of 42 U.S.C requires that a person 8 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 if execution of its policy or custom causes a constitutional violation. 9 Love-Lane v. Martin, 355 F.3d 766, 782 (4 th Cir. 2004) (citing Hall v. Marion School Dist. No. 2, 31 F.3d 183, 195 (4 th Cir. 1994). Local government entities are not liable under respondeat superior because the text of 42 U.S.C 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, (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 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 (4 th Cir. 2004) (citation omitted), but plaintiff has not pointed to any single decision in her Complaint. 4 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 4 of 11 Pageid#: 73

5 Spell v. McDaniel, 824 F.2d 1380, (4 th 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 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 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 A policy must at least tacitly approve the constitutional violation. Id. A single constitutional 5 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 5 of 11 Pageid#: 74

6 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 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 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 Complaint 50, Complaint Complaint 3. 6 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 6 of 11 Pageid#: 75

7 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, Complaint 61, See Complaint 2, 5, Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 7 of 11 Pageid#: 76

8 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 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 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. 5:13cv WL (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. 3:14cv WL (E.D. Va. May 15, 2014); but see Heckenliable v. Virginia Peninsula Jail Auth., No. 4:06cv25, 2006 WL (E.D. 8 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 8 of 11 Pageid#: 77

9 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 at *4 (citing Heckenliable, 2006 WL and Richmond v. Richmond Metro. Auth., 210 Va. 645 (1970) for the proposition that all six attributes are essential); Dowdy 2014 WL 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 (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 quasimunicipal 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, Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 9 of 11 Pageid#: 78

10 Receivership of a jail is only appropriate in the most awful circumstances of widespread constitutional violations. See Plata v. Schwarzenegger, No. C TEH, 2005 WL , *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 jail 20 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). 10 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 10 of 11 Pageid#: 79

11 CENTRAL VIRGINIA REGIONAL JAIL AUTHORITY By Counsel /s/ Helen E. Phillips Helen E. Phillips, VSB Allen & Newman, PLLC P.O. Box 1119 Bristol, Virginia (fax) /s/ A. Ross Phillips A. Ross Phillips, VSB Allen & Newman, PLLC P.O. Box 1119 Bristol, Virginia (fax) 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 th Floor Washington, D.C /s/ Helen E. Phillips Helen E. Phillips 11 Case 3:15-cv GEC Document 18 Filed 08/03/15 Page 11 of 11 Pageid#: 80

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