Case 3:15-cv MHL Document 4 Filed 10/20/15 Page 1 of 2 PageID# 16

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1 Case 3:15-cv MHL Document 4 Filed 10/20/15 Page 1 of 2 PageID# 16 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAIME S. ALFARO-GARCIA, Plaintiff, v. HENRICO COUNTY, Civil No.: 3:15-CV-349 MICHAEL L. WADE (sheriff of Henrico County, in his individual and official capacity, and JOHN DOES 1 THROUGH 10 Defendants. MOTION TO DISMISS Defendant Henrico County, by counsel, moves this Court pursuant to Rule 12(b(6 to dismiss with prejudice the Complaint filed by the plaintiff in this matter. The points and authorities in support of this motion are contained in a supporting memorandum, filed this day. Respectfully Submitted, HENRICO COUNTY /s/ By Counsel Joseph P. Rapisarda Jr. County Attorney (VSB No

2 Case 3:15-cv MHL Document 4 Filed 10/20/15 Page 2 of 2 PageID# 17 John D. Gilbody (VSB No Assistant County Attorney County of Henrico, Virignia P.O. Box Henrico, VA ( (direct ( (fax gil077@henrico.us CERTIFICATE OF SERVICE I hereby certify that on the 20th day of October, 2015, I filed a copy of the foregoing document using the Court's ECM/ECF filing system, which will send electronic notification to the following e-filing users: Jacob Nephi Tingen Benjamin Richard Williams Tingen & Williams PLLC 1900 Byrd Avenue Suite 101E Richmond, VA ( I also sent a copy of this pleading via electronic mail to the following attorney, whom I understand will be representing a party: Antoinette Morgan Walker Morris & Morris PC 11 South 12th Street 5th Floor PO Box 30 Richmond, VA Fax: amorgan@morrismorris.com /s/ John D. Gilbody (VSB No Assistant County Attorney Henrico County Attorney s Office P.O. Box Henrico, VA ( (direct ( (fax gil077@henrico.us Counsel for the Defendant Henrico County 2

3 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 1 of 7 PageID# 18 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAIME S. ALFARO-GARCIA, Plaintiff, v. HENRICO COUNTY, Civil No.: 3:15-CV-349 MICHAEL L. WADE (sheriff of Henrico County, in his individual and official capacity, and JOHN DOES 1 THROUGH 10 Defendants. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Come now Defendant Henrico County, and states as follows in support of its Motion to Dismiss: I. INTRODUCTION The plaintiff has brought suit against an improper party Henrico County. Henrico County has no involvement in the facts underlying this case, and should be dismissed as a party defendant. Under Virginia law, the Henrico Sheriff is a distinct constitutional officer of the Commonwealth of Virginia, and he is legally responsible for operating the jail for Henrico County, Virginia. II. STATEMENT OF FACTS The plaintiff was lawfully arrested on June 10, 2013, and incarcerated at Henrico County Jail West. (Compl. 12 While in custody, the United States Department of Homeland Security

4 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 2 of 7 PageID# 19 issued an Immigration Detainer relating to the plaintiff. (Compl. 13 The Immigration Detainer states that the plaintiff should be held for a period of 48 hours. (Compl 14 The plaintiff alleges that he was incarcerated from June 10, 2013 until July 17, 2013, at which time he resolved his criminal matter. (Compl. 17 According to the plaintiff, his criminal charges where resolved at approximately 9:30 a.m. on July 17, (Id. The plaintiff alleges that various John Doe defendants refused to release the plaintiff on the morning of July 19, (Compl. 21, 22 The plaintiff was ultimately released between 11:30 p.m., July 19 th and 12:30 a.m., July 20 th. (Compl. 23 The Complaint states three causes of action: 1 Denial of Due Process under section 1983; 2 Unlawful Seizure under section 1983; and 3 False Imprisonment. (Compl The only material allegations directed specifically against Henrico County contend that the County operates the Henrico County Jail West. (Compl. 10 The Complaint also alleges, however, that Defendant Wade is responsible for the day-to-day operations of the Henrico County Jail West. (Compl. 11 III. ARGUMENT A. Standard of Review A motion to dismiss a complaint under Rule 12(b(6 of the Federal Rules of Civil Procedure should be granted unless the complaint states a plausible claim for relief under Rule 8(a. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007. To survive a motion to dismiss, a plaintiff must provide more than a formulaic recitation of the elements of a cause of action or naked assertions devoid of further factual enhancement. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557 (internal quotation marks omitted. [T]he tenet that a court must accept as true all of the allegations 2

5 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 3 of 7 PageID# 20 contained in a complaint is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678; see also Labram v. Havel, 43 F.3d 918,921 (4th Cir ( conclusory allegations regarding the legal effect of the facts alleged need not be accepted as true. B. The plaintiff must show that Henrico has an unconstitutional policy or custom. Municipalities are persons under Section 1983 and, therefore, [a] municipality or other local government may be liable under [Section 1983] if the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation. Connick v. Thompson, 563 U.S (2011 (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 692 (1978. However, under 1983 local governments are responsible only for their own illegal acts. Id. (emphasis in original (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986. Municipalities are not vicariously liable under 1983 for their employees' actions under a theory of respondeat superior. See id. (citations omitted. To prevail, the plaintiff must show that the County deprived him of a constitutional right through an official policy or custom. Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir A policy or custom for which a municipality may be held liable can arise in four ways: (1 through an express policy, such as a written ordinance or regulation; (2 through the decisions of a person with final policymaking authority; (3 through an omission, such as a failure to properly train officers, that manifest[s] deliberate indifference to the rights of citizens; or (4 through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law. Id. (internal quotations omitted. None of these four scenarios even arguably exists in the present case. 3

6 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 4 of 7 PageID# 21 C. Henrico County does not operate Henrico County Jail West. The Constitution of the Commonwealth of Virginia creates the elected position of sheriff for each county in the Commonwealth. See Va. Const. Art. VII, 4. The sheriff is a constitutional officer responsible for the day-to-day operations and maintenance of the local jails. See Va. Code et seq. The sheriff is required to receive into the jail all persons lawfully committed. Va. Code The sheriff is the keeper of the local jail, and the legal custodian of those who are lawfully confined in it. Watts v. Commonwealth, 99 Va. 872, , 39 S.E. 706, 707 (1901. A sheriff maintains the sole discretion to hire and fire his deputies. Va. Code Virginia federal courts and the Fourth Circuit have overwhelmingly recognized that sheriffs, not counties or other localities, operate local jails. See, e.g., Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir In Strickler, a prisoner brought suit against a sheriff, the City of Portsmouth, and the Department of Corrections under section In affirming the City s dismissal under Rule 12(b(6, the court in Strickler held that Virginia law obligates the [locality] to provide for the jail s physical plant, not to oversee the activities within. Strickler, 989 F.2d at The court correctly reasoned that Portsmouth could not be liable for the actions of deputies, because the deputies actions do not reflect official policy of the city. Id. The Fourth Circuit reaffirmed Strickler s reasoning in Grayson v. Peed, 195 F.3d 692, 697 (4th Cir In a wrongful death case involving a prisoner brought pursuant to section 1983, the Fourth Circuit affirmed the dismissal of Fairfax County because there can be no county liability here because under Virginia law Fairfax County has no control over the internal administration of the [jail]. Id. This controlling precedent has been followed repeatedly in 4

7 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 5 of 7 PageID# 22 section 1983 actions brought by prisoners. See, e.g., Miller v. Parrish, No. 3:12CV873, 2013 WL , at *4 (E.D. Va. Mar. 4, 2013 ( A municipality cannot be liable under 1983 for the actions of its sheriff because under the law of Virginia those actions do not embody an official policy of the [municipality]. (citing Strickler, 989 F.2d at 1390; Sleeper v. City of Richmond, No. 3:12CV441, 2012 WL , at *8 (E.D. Va. Aug. 16, 2012 ( Although Virginia law may obligate the City to provide for the physical upkeep of the Jail, it does not render the City liable for operations within that is the sole purview of Sheriff Woody. ; Scott v. City of Va. Beach, No. 2:10CV625, 2011 WL , at *4 (E.D. Va. Sept. 29, 2011 ( it is well-settled... that under Virginia law, the Sheriff is a constitutional officer, and as such, serves independently of county and city governments.. The plaintiff in the present case has not made any specific factual allegations about Henrico County. Rather, the plaintiff merely vaguely alleges that Henrico County operates Henrico County Jail West (Compl. 10, when it is clear under Virginia law that Henrico County does not operate jails. This Court need not accept the plaintiff s proffered legal conclusions. The law in Virginia is clear, and this Court should dismiss the plaintiff s claims against Henrico County. D. The plaintiff s false imprisonment claim is barred by sovereign immunity. Henrico County, a subdivision of the Commonwealth, is entitled to sovereign immunity for tort claims unless an express statutory or constitutional provision has waived that immunity. See Ligon v. County of Goochland, 279 Va. 312, 316, 689 S.E.2d 666, 668 (2010. Although the Virginia Tort Claims Act waives sovereign immunity for the Commonwealth in some instances, it does not waive that immunity for the subdivisions thereof. See Carter v. Morris, 164 F.3d 215, 221 (4th Cir (citing Va. Code (holding in a 1983 case that a plaintiff's 5

8 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 6 of 7 PageID# 23 related state tort claims against a city were barred by sovereign immunity under Virginia law. The plaintiff s state law tort claim is barred by sovereign immunity and should be dismissed. IV. CONCLUSION Henrico County is not a proper party to this lawsuit. For the reasons stated above, this Court should grant Henrico County s Motion to Dismiss, and dismiss the plaintiff s claims against Henrico County with prejudice. Respectfully Submitted, HENRICO COUNTY /s/ By Counsel Joseph P. Rapisarda, Jr. (VSB No County Attorney John D. Gilbody (VSB No Assistant County Attorney County of Henrico, Virginia P.O. Box Henrico, VA ( (direct ( (fax gil077@henrico.us 6

9 Case 3:15-cv MHL Document 5 Filed 10/20/15 Page 7 of 7 PageID# 24 CERTIFICATE OF SERVICE I hereby certify that on the 20th day of October, 2015, I filed a copy of the foregoing document using the Court's ECM/ECF filing system, which will send electronic notification to the following e-filing users: Jacob Nephi Tingen Benjamin Richard Williams Tingen & Williams PLLC 1900 Byrd Avenue Suite 101E Richmond, VA ( I also sent a copy of this pleading via electronic mail to the following attorney, whom I understand will be representing a party: Antoinette Morgan Walker Morris & Morris PC 11 South 12th Street 5th Floor PO Box 30 Richmond, VA Fax: amorgan@morrismorris.com /s/ John D. Gilbody (VSB No Assistant County Attorney Henrico County Attorney s Office P.O. Box Henrico, VA ( (direct ( (fax gil077@henrico.us Counsel for the Defendant Henrico County 7