MEMORANDUM IN SUPPORT OF MOTION TO …ftpcontent.worldnow.com/wvir/documents/Support-for...Boston, Mike Horrocks, Eric Last, Thomas Vogt and Amanda Pitts deliberately tortured and

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).

1Case 3:15-cv-00024-GEC Document 18 Filed 08/03/15 Page 1 of 11 Pageid#: 70

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.


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.


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.


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


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.


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.


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.


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.


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).


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

Case 3:15-cv-00024-GEC Document 18 Filed 08/03/15 Page 11 of 11 Pageid#: 80

mailto:[email protected]

mailto:[email protected]

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