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Altizer v. Town of Cedar Bluff

United States District Court, W.D. Virginia, Abingdon Division

June 5, 2014


Michael A. Bragg Bragg Law, Abingdon, Virginia, for Plaintiffs.

W. Bradford Stallard, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendants.


JAMES P. JONES, District Judge.

In this action under 42 U.S.C.A. § 1983 (West 2012), the plaintiff, a former municipal employee, claims that she was fired in violation of the First Amendment, on account of public comments made on her behalf about the alleged misappropriation of funds from the town employees' deferred compensation plan. She further contends that her funds from the plan were taken from her without just compensation, in violation of the Fifth Amendment's Takings Clause. The suit also bases recovery on pendant state causes of action for wrongful termination, conversion, and breach of fiduciary duty.

The defendants have now moved to dismiss the action for failure to state any claim. The individual defendant also seeks to establish his qualified immunity from suit. For the reasons that follow, the defendants' motion will be granted in part and denied in part.


In accord with familiar principles, I must accept for present purposes the facts of the case as set forth in the Complaint.

The plaintiff Marilyn Altizer was formerly employed as an assistant town clerk for the Town of Cedar Bluff, Virginia (the "Town"). During her employment with the Town, Mrs. Altizer participated in a deferred compensation plan. Pursuant to this plan, established under a provision of the Internal Revenue Code, [1] the Town withheld $110 from each of Mrs. Altizer's biweekly paychecks, to be deposited in a trust account managed by a third party. On April 12, 2013, upon receipt of a benefits statement, Mrs. Altizer learned that no contributions had been made to the trust account during 2013, despite the deductions from her paycheck. She approached Town Mayor Jerry Herron and "was told that [Town Manager James K.] McGlothlin had been directed to cash a Town certificate of deposit and make the payments to the Plan." (Compl. ¶ 6.) Mrs. Altizer came to understand that "[t]he Town, acting through McGlothlin, had a policy by which it would not transmit moneys withheld from employees to The Plan but would hold those moneys for later payment, utilizing those withheld employee funds for the Town's benefit." ( Id. ) Mrs. Altizer claims that she "was ordered by the [the mayor] to not disclose what she had learned." ( Id. )

Mrs. Altizer's private efforts to discuss the issue with council members and with McGlothlin were not fruitful, and as a result, on May 14, 2013, she and her husband and co-plaintiff Timothy Altizer appeared before the Town Council at its regular public meeting. Mr. Altizer asked to be placed on the agenda and he addressed the Council. "He advised the Town Council that he was speaking on behalf of Marilyn Altizer and asked that the Town Council publicly address and explain the policy of holding payments withheld from employees and not transmitting those moneys to the investment plan." ( Id. ¶ 8)[2] Three days later, on May 17, McGlothlin terminated Mrs. Altizer's employment and "falsely accused [her] of poor job performance as a pretext for his action." ( Id. ¶ 9.)

Thereafter, Mr. and Mrs. Altizer filed the present suit against both the Town and Town Manager McGlothlin, seeking compensatory and punitive damages. Count One of the Complaint charges a violation of the First Amendment in relation to Mrs. Altizer's termination. Count Two alleges a violation of the Takings Clause arising from the Town's alleged use of the deferred compensation plan. The remaining counts assert violations of state law.

The defendants have moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiffs have submitted a brief in response, but I will not consider it in ruling on the defendants' motion. In the first place, it is untimely. Under this court's Local Rules, unless otherwise ordered, a response to a motion is due no later than 14 days after service. W.D. Va. Civ. R. 11(c). The response here was filed 32 days after service and without any effort to obtain leave of court for this tardiness.

Secondly, to the extent that the plaintiffs' brief in opposition refers to new facts not previously alleged, it is out of bounds. In determining a motion to dismiss under Rule 12(b)(6), I am limited to the facts set forth in the complaint. Car Carriers, Inc. v. Ford Motor Co. 745 F.2d 1101, 1107 (7th Cir. 1984) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss."); see E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 449 (4th Cir. 2011) ("[S]tatements by counsel that raise new facts constitute matters beyond the pleadings and cannot be considered on a Rule 12(b)(6) motion.")[3]

Even though no proper response was filed in opposition to the Motion to Dismiss, I am still obligated to consider the motion on its merits. See Goldberg v. Danaher, 599 F.3d 181, 183-84 (2d Cir. 2010).


A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint to determine whether the pleader has properly stated a cognizable claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Federal pleading standards require that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As the Fourth Circuit has explained,

The plausibility standard requires a plaintiff to demonstrate more than "a sheer possibility that a defendant has acted unlawfully." It requires the plaintiff to articulate facts, when accepted as true, that "show" that the plaintiff has stated a claim entitling him to relief, i.e., the "plausibility of entitlement to relief.'"

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citations omitted).

It is also contended that Town Manager McGlothlin is protected from suit based on the doctrine of qualified immunity because his conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).[4] Qualified immunity "shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person." Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). Where a plaintiff "(1) allege[s] a violation of a right (2) that is ...

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