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Nelson v. Green

United States District Court, Western District of Virginia, Charlottesville Division

January 14, 2014




I. Introduction

This matter is before the Court on two motions to dismiss John T. Nelson’s Third Amended Complaint: a motion to dismiss filed by defendants Cindy Casey, John Freeman, Lori Green, and Kathy Ralston (“ACDSS Defendants”) (ACDSS Motion to Dismiss) (docket no. 144), and a motion to dismiss filed by defendant Viola Vaughan-Eden (“Vaughan-Eden”) (V-E Motion to Dismiss) (docket no. 150). John T. Nelson (“Plaintiff”) filed a response in opposition to both, and Defendants and Vaughan-Eden filed replies. This Court held a hearing on the motions on December 16, 2013. For the reasons that follow, I will grant in part and deny in part Vaughan-Eden’s Motion to Dismiss, and I will deny the ACDSS Motion to Dismiss.

A. Procedural History

Plaintiff filed this action in December 2006, claiming Lori Green, Cindy Casey, John Freeman, Kathy Ralston and Viola Vaughan-Eden violated various state and federal laws in coercing Plaintiff’s daughter to falsely accuse him of sexual abuse. On August 8, 2007, the federal case was stayed until the underlying state court proceedings concluded. On March 14, 2013, Magistrate Judge B. Waugh Crigler lifted that stay and granted Plaintiff leave to file a second amended complaint. Plaintiff’s Second Amended Complaint featured seven distinct causes of action, including both federal and state claims. On two motions to dismiss that Second Amended Complaint, one each by the ACDSS Defendants and Vaughan-Eden, I dismissed all but Plaintiff’s intentional infliction of emotional distress (“IIED”) claim, Count V of that complaint, granting Plaintiff leave to amend Count V as to all defendants. Only one state law claim remained, but I exercised my discretion to retain supplemental subject matter jurisdiction over that claim under 28 U.S.C. § 1367. See Nelson v. Green, 965 F.Supp.2d 732, 750–51, 752–53 (W.D. Va. 2013) [hereinafter “Nelson Opinion” or “Opinion”].

On August 29, 2013, Plaintiff filed his Third Amended Complaint (docket no. 139) (hereinafter “Complaint” or “Third Amended Complaint”). In that Complaint, Plaintiff re-alleges what was Count V of the Second Amended Complaint as Count I, “suppl[ying] additional details regarding the extent and severity of the emotional distress [he] suffered as a result of Defendants’” actions. Plaintiff “did not repeat or re-assert the dismissed claims, ” he says, because those counts of the Second Amended Complaint had been dismissed by this Court without leave to amend. Instead, Plaintiff pleaded in Paragraph 108 of the Third Amended Complaint as follows:

108. Plaintiff expressly preserves by reference his claims asserted against all Defendants in Counts I, II, III, IV, VI, and VII of his Second Amended Complaint (including his claim for attorney fees under 42 U.S.C. § 1988), which were dismissed by the Court by Order dated August 15, 2013, and reserves his right of appeal on these claims as to all Defendants upon a final order or judgment in this case. However, those claims are not re-stated in this Third Amended Complaint under the pleading rule set forth in Young v. City of Mount Ranier, 238 F.3d 567, 572–73 (4th Cir. 2001). All facts set forth in support of those claims are re-asserted in the Third Amended Complaint to preserve the factual basis for the claims and because the facts have independent bearing upon Plaintiff’s claim for intentional infliction of emotional distress.

B. Motions to Dismiss the Third Amended Complaint

On September 30, 2013, all Defendants timely filed motions to dismiss the Third Amended Complaint along with their answers. The ACDSS Motion to Dismiss argues that this Court should dismiss the Third Amended Complaint for four reasons. First, Defendants claim this Court lacks subject matter jurisdiction over the Complaint under Federal Rule of Civil Procedure 12(b)(1) because Plaintiff does not re-plead the dismissed counts of the Second Amended Complaint, which provided the basis for this Court’s supplemental jurisdiction. Second, the ACDSS Defendants re-assert their absolute immunity for any non-administrative, non-investigative actions associated with the filing of the removal petition in state court. Third, the ACDSS Defendants argue the Complaint fails to plead facts sufficient to exempt them from reporter immunity under Virginia Code § 63.2-1512. Finally, the ACDSS Defendants argue Plaintiff’s IIED claim must be judged under substantive Virginia law now that he has more specifically pleaded it, and claim that it does not sufficiently state a plausible claim under that law.

Vaughan-Eden adopts these arguments, and separately argues that the conduct the Complaint specifically attributes to her is not sufficiently outrageous and intolerable to satisfy Virginia’s IIED standards. She further alleges Virginia’s immunity doctrines shield her from liability, as Plaintiff has not alleged sufficient malice or bad faith on her part. Finally, Vaughan-Eden argues the Complaint neither states a claim for punitive damages against her specifically, nor provides any basis for the award of attorneys’ fees against any of the Defendants.

Plaintiff filed a consolidated response to both motions on October 17, 2013. In that response, among other things, Plaintiff argues that the absolute immunity this Court applied to Defendants for their actions on the federal claims does not grant them absolute immunity on the remaining state law claim. Instead of federal immunity doctrine for § 1983 cases, Virginia’s immunity law applies to his IIED claim, Plaintiff avers. The ACDSS Defendants and Vaughan-Eden timely replied on October 28, 2013, disputing these assertions. In their reply, the ACDSS Defendants attempted to introduce various exhibits to supplement their motion to dismiss.

II. Background

This case stems from Plaintiff’s allegation that four employees of the Albemarle County Department of Social Services (“ACDSS”), along with a social worker who worked at their direction, abused their official positions to coerce Plaintiff’s daughter to falsely accuse her father of sexual abuse. Plaintiff filed his original complaint in December 2006, and this case was stayed until the underlying state court proceedings concluded. On January 9, 2013, the Circuit Court of Albemarle County (Higgins, J.) entered a final order, and no appeal was filed.

Plaintiff and the mother of his daughter, who is now twelve years old, were never married. Starting in 2003 and into 2004, in the midst of a custody battle, the mother began alleging that Plaintiff had sexually abused their child. Plaintiff states that the four ACDSS Defendants became aware of the case around that time, as the mother brought the child to various therapists, doctors, and emergency rooms for evaluations. Plaintiff states that several therapists reported to Green, a case worker for Child Protective Services (“CPS”) (an office of ACDSS), that the mother’s allegations were false, and that the mother was attempting to coach the child or manipulate the therapists into making a false finding of abuse.[1] Plaintiff states that one of those medical examinations, which took place at the U.Va. Medical Center’s emergency room, prompted a report that was sent to the ACDSS Defendants about the mother’s conduct.

In August 2004, the mother presented her allegations to Judge Berry, of the Juvenile & Domestic Relations District Court for the City of Charlottesville (“J&DR Court”). Judge Berry rejected the mother’s allegations that Plaintiff had abused their child. The J&DR Court order, dated August 10, 2004, required that any future request by the mother to take the child to a therapist had to be approved by the J&DR Court’s therapist, Wendy Carroll. That order also required that an ACDSS employee or designee accompany the child to any future evaluation.

The ACDSS Defendants began investigating the mother’s allegations in December 2004. According to Plaintiff, the four ACDSS Defendants intentionally violated the J&DR Court’s order by sending the child to be questioned by Vaughan-Eden without obtaining Wendy Carroll’s prior approval. Plaintiff also states that Carroll, the child’s guardian ad litem, had specifically objected to an evaluation by Vaughan-Eden, who is a licensed clinical social worker in private practice in Newport News, Virginia.[2] Defendants further violated Judge Berry’s order by failing to accompany Plaintiff’s daughter on all visits to Vaughan-Eden in Newport News. Prior to Vaughan-Eden’s evaluation, Plaintiff alleges that Green provided Vaughan-Eden with false information about him, instructed her not to talk to Plaintiff, and concealed all prior professional evaluations that had concluded that the child had not been abused.

Vaughan-Eden did not videotape the back-to-back, 45-minute interviews she held with the child in February 2005, who at the time was four years old. Plaintiff alleges that Vaughan-Eden worked with Green during both sessions, and instructed his daughter to make a disclosure of abuse. Plaintiff states that in the second session, Green and Vaughan-Eden jointly pressured his daughter through leading questions to tell them “Who hurt your butt?” Plaintiff states that his daughter became “visibly anxious” during the sessions, “bounc[ed] off the walls and the floor, ” and “made animal calls and cried out” before eventually saying “Daddy.” 3d Am. Compl. ¶ 47. Plaintiff states that experts in the state case testified that these sessions were traumatizing and emotionally and psychologically abusive to the child. Plaintiff alleges that Vaughan-Eden’s evaluation was corrupt, and was set up for the purpose of manufacturing a false disclosure of abuse. Vaughan-Eden’s report implicated Plaintiff in sexually abusing his daughter.

The four ACDSS Defendants used that report to support a petition for a protective order in the J&DR Court of Albemarle County later that month. Plaintiff alleges that Green and Vaughan-Eden executed an affidavit that misrepresented what his daughter had said, and omitted crucial facts pertaining to Vaughan-Eden’s evaluation. Allegedly, Green and Vaughan-Eden continued those misrepresentations through their testimony before the J&DR Court. After multiple hearings, the J&DR Court found that the child had been abused, but could not determine which parent was responsible. The J&DR Court found that the child’s disclosure was “tainted” by the procedures Green and Vaughan-Eden employed, and was therefore too unreliable to establish a finding of abuse by the father. The Court issued a final protective order in April 2005 naming both the Plaintiff and the mother as respondents.[3]

Before the J&DR Court issued its final order, the ACDSS Defendants pursued an administrative action against Plaintiff resulting in a Level 1 “founded” disposition, indicating Plaintiff had sexually abused his child. As a result of that disposition, Plaintiff’s name was placed on a central registry of child sex abusers. The disposition was also used to restrict Plaintiff’s visitation with his daughter to no more than three hours per week, with adult supervision.[4] Plaintiff appealed the Level 1 administrative finding to the State DSS. In July 2006, a hearing officer overturned the Level 1 “founded” disposition against Plaintiff. According to the State DSS, the Defendants’ agency “did not even come close to proving its case by a preponderance of the evidence.” 3d Am. Compl. ¶ 69.

However, Defendants did not dismiss their abuse allegations or revise their visitation restrictions following that ruling, so proceedings in state court continued. Those proceedings culminated in a thirteen-day trial in Albemarle Circuit Court in August 2009. Following the conclusion of that trial, the Circuit Court held in September 2009 that (1) the father did not abuse the child in any manner, and (2) the mother had engaged in a pattern of interference in the father’s relationship with the child, but did not abuse the child. The Circuit Court also enjoined the mother from interfering further in the child’s relationship with the father. The mother appealed, and the Court of Appeals issued a decision on January 11, 2011, reversing certain evidentiary rulings from the trial and clarifying the definition of “abuse” as applied to the mother’s conduct. Finally, on January 9, 2013, the Circuit Court reaffirmed its September 16, 2009 order, including its previous findings that (1) the father did not abuse the child in any manner, and (2) the mother engaged in a pattern of interference in the father’s relationship with the child. The Circuit Court also implemented an injunction against the mother prohibiting any further interference in the child’s relationship with the father. The Circuit Court also held that Judge Berry’s initial August 2004 order, from the Charlottesville J&DR Court, was to remain in effect.

Here in federal court, Judge Crigler lifted the stay in March of 2013 and granted Plaintiff leave to file a second amended complaint. After Defendants’ and Vaughan-Edens’ motions to dismiss, this Court dismissed all but Count V of the Second Amended Complaint. Defendants and Vaughan-Eden now challenge the Third Amended Complaint on motions to dismiss.

III. Legal Standard

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain facts sufficient “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is plausible if the complaint contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” and if there is “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true, and must draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court is not required to “accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000) (citations omitted).

IV. Discussion

A. The ACDSS Defendants’ Motion to Dismiss

The ACDSS Defendants repeat several of the claims this Court rejected in the Nelson Opinion and present new arguments regarding what Plaintiff must now prove to plead a plausible claim for IIED. In response, Plaintiff presents a novel issue: whether Virginia’s immunity doctrines now entirely govern the IIED claim, such that the Defendants’ and Vaughan-Eden’s prosecutorial actions in state court and in filing the removal petition are again placed at issue.

1. Subject Matter Jurisdiction under Rule 12(b)(1)

In the Nelson Opinion, I stated I would “exercise my discretion to retain jurisdiction” over pendent state law claims, including the IIED claim. See Nelson v. Green, 965 F.Supp.2d 732, 750–51, 752–53 (W.D. Va. 2013). The Third Amended Complaint cites this decision and asserts that “[t]his Court has jurisdiction over tort claims arising under state law pursuant to 28 U.S.C. § 1367(a) because the claims are so related to the federal constitutional claims they form part of the same case or controversy.” 3d Am. Compl. ¶ 9. The Complaint also notes this case “as presented in the Second Amended Complaint” arose under federal question jurisdiction, pursuant to 28 U.S.C. §§ 1331 and 1334(a)(3). Id. at ¶ 8. Plaintiff clarifies in Paragraph 108 that he does not restate his dismissed claims in this Complaint, but “expressly preserves” the claims and reserves the right to appeal their dismissal. Id. at ¶ 108 (citing Young v. City of Mount Ranier, 238 F.3d 567, 572–73 (4th Cir. 2001)).

Defendants argue Plaintiff has pleaded himself out of subject matter jurisdiction. Defendants observe Plaintiff does not restate, incorporate, or adopt his dismissed federal question claims in this Complaint. Defendants assert that “courts look to the amended complaint to determine jurisdiction, ” and that “[t]he original complaint, once superseded, cannot be utilized to cure defects in the amended pleading unless the relevant portion is incorporated into the new pleading.” ACDSS Mot. to Dismiss 2 (emphasis in original) (citing Wellness Cmty. Nat’l v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995)).

Defendants’ authority deals only with a plaintiff voluntarily choosing to dismiss the federal portions of a complaint and then seeking to proceed solely on state law claims under supplemental jurisdiction. Under those circumstances in Wellness, the Seventh Circuit found a district court no longer maintains subject matter jurisdiction unless the plaintiff re-pleads the federal claims. See Wellness, 70 F.3d at 48–49. But where plaintiffs amend complaints after involuntary dismissal of federal claims, as on motions to dismiss, at least two federal courts have found plaintiffs need not re-plead the dismissed claims to secure subject matter jurisdiction.

The Eleventh Circuit, in an unpublished opinion, vacated a district court’s dismissal of a complaint in almost exactly the situation this Court faces. See Bayshore Ford Trucks Sales, Inc. v. Ford Motor Co., 299 F.App'x 943, 944 (11th Cir. 2008) (unpublished). The court reasoned:

We see no difference in the instant scenario than a scenario in which the plaintiff's complaint contains one federal claim and one state law claim within the court's supplemental jurisdiction, and the court dismisses the federal claim under Fed.R.Civ.P. 12(b)(6), (c), or 56 and then decides, in the exercise of the discretion § 1367 affords it, to litigate the state law claim to judgment. We could not say that the court lost its subject matter jurisdiction once it dismissed the federal claim. Take the scenario one step further and suppose that the court, after announcing that it was retaining jurisdiction, allows the plaintiff to amend its complaint to restate the state law claim. Would this destroy the court's jurisdiction? We think not. That is, in effect, what occurred here . . . plaintiffs amended their complaint, reasserting their state law claims, after the court dismissed involuntarily one of their federal statutory claims.
The district court properly exercised its supplemental jurisdiction after involuntarily dismissing plaintiffs' claims under the Automobile Dealers' Day in Court Act. The fact that plaintiffs[’] amended complaint did not contain their Robinson-Patman Act claims did not oust the court of supplemental jurisdiction.

Id. (emphasis added). See also Seekamp v. It's Huge, Inc., No. 1:09-CV-0018 (LEK/CFH), 2013 WL 2486912, at *1–2 (N.D.N.Y. June 10, 2013) (citing Bayshore, 299 F. App’x at 944) (same); cf. Young v. City of Mount Ranier, 238 F.3d 567, 572–73 (4th Cir. 2001) (holding the appellate waiver rule does not apply to “claims not included in the amended complaint [that] have previously been dismissed by the court without leave to amend”).

Plaintiff makes the more convincing argument. This Court opted to retain supplemental jurisdiction and allowed Plaintiff to re-plead only a state law claim. It defies logic that this Court would waste the parties’ time and effort in allowing such an amendment, just to pull the rug out from underneath Plaintiff upon its completion. Neither will this Court require Plaintiff to clutter his amended complaint and the entire subsequent judicial process by re-pleading, adopting, or incorporating dismissed claims. As this Court clearly stated in the Nelson Opinion, it retains supplemental jurisdiction over Plaintiff’s IIED claim. Plaintiff need not re-plead dismissed federal claims to make this Court’s retention of subject matter jurisdiction a reality.

2. Vosburg Absolute Immunity and State Law Claims

Defendants assert that “[u]nder Virginia law, social workers are entitled to absolute immunity for the prosecutorial acts of preparing and filing removal petitions.” ACDSS Mot. to Dismiss 3 (quoting Nelson, 965 F.Supp.2d at 741). Therefore, Defendants argue Plaintiff’s IIED claim can only rely on those actions “performed in an investigative or non-prosecutorial[, ] administrative” manner “predating the February 9, 2005 Petition filed by the Albemarle County Attorney on behalf of ACDSS.”[5] Id. Plaintiff counters that the Nelson Opinion, and Vosburg v. Department of Social Services, 884 F.2d 133, 137 (4th Cir. 1989), on which this Court relied, only granted social workers immunity in the context of a federal § 1983 claim in federal court. For Plaintiff’s IIED state law claim, Plaintiff argues choice of law principles dictate that Virginia’s law of immunity should apply. Plaintiff is correct, and this Court has and will apply state law immunity to Plaintiff’s IIED claim.

Defendants correctly quote the Nelson Opinion in its statement of the legal standard for Vosburg absolute immunity to § 1983 claims. However, examining the Nelson Opinion shows this Court referred to Virginia law only to explain that the nature of Virginia’s judicial process, in this case as in Vosburg, means that filing a removal petition places a social worker in a prosecutorial role, triggering federal common law immunity to ...

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