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Diedrich v. City of Newport News

United States District Court, E.D. Virginia, Newport News Division

March 31, 2016



Raymond A. Jackson United States District Judge

Before the Court is Defendants' Motion for Attorney's Fees. ECF No. 14. In addition to their Motion, Defendants have filed a Memorandum in Support, ECF No. 15, and an Affidavit of Attorney Darlene P. Bradberry. Plaintiff has filed a Memorandum in Opposition, ECF No. 16, and Defendants have filed a Rebuttal Brief, ECF No. 18. Defendants have also requested a hearing on their Motion. ECF No. 20. The Court has reviewed the Motion, the filings of the parties, and has recalled its extensive knowledge of this case and the associated cases. The Motion is now ripe and a hearing would not aid in the adjudicative process. For the reasons stated below, the Motion is GRANTED.


On January 12, 2015, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 against Defendants alleging that Defendants deprived Plaintiff of his liberty interests and property interests in violation of the United States Constitution. ECF No. 1. Plaintiff additionally brought state law claims for Negligent Infliction of Emotional Distress. Judgement was requested in the amount of $10, 000, 000. Plaintiff requested an additional $350, 000 in punitive damages against each individual Defendant.

The facts underlying the Complaint are recounted in great detail in Diedrich v. City of Newport News, Civil Action No. 4:04cv9 ("Diedrich I") and the Court's Order of August 11, 2015, ECF No. 12. The pertinent facts giving rise to Plaintiffs Complaint, as described by this Court in its Order on the Motion to Dismiss, are as follows:

Plaintiff was hired by the City of Newport News Police Department in 1991. Initially employed as a law enforcement officer, Plaintiffs employment was terminated in May 1995 after he was arrested and charged with grand larceny and perjury in April 1995. Acquitted of the charges, Plaintiff was reinstated in October 1996.

In October 2002, six years later, then-Chief of Police Dennis A. Mook transferred Plaintiff from his law enforcement position to a civilian position in the Records Division. Plaintiffs law-enforcement authority and permission to hold secondary employment (i.e., moonlight) were rescinded at this time. Thereafter, Plaintiff filed a grievance and challenged his transfer to the Records Division as an illegal disciplinary and punitive action.

Unable to obtain relief through the grievance process, Plaintiff filed a Section 1983 suit in this Court, Diedrich I, alleging, inter alia, deprivation of liberty under the Fifth Amendment, and deprivation of due process under the Fourteenth Amendment of the United States Constitution. Specifically, Plaintiff alleged that his transfer to the Records Division was for punitive reasons and amounted to a demotion. Plaintiff also alleged a property interest in secondary employment. In addition, Plaintiff brought state law claims for intentional and negligent infliction of emotional distress.

The Court found that (1) Plaintiff had failed to assert a liberty interest under the Fifth Amendment because he remained employed, and (2) he had failed to assert a property interest under the Fourteenth Amendment because (a) he was not entitled to a particular departmental assignment, and (b) could not assert a property interest in secondary employment. On April 26, 2004, pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court dismissed Plaintiffs § 1983 claims. The Court declined to exercise jurisdiction over Plaintiffs state law claims.

Following Diedrich I, in November 2006, Plaintiff was transferred from the Records Division to the Recruiting Division, and assigned as a Recruiter and background investigator. (PL's Compl. ¶ 30.) In that role, Plaintiff conducted background investigations on newly hired police recruits. (PL's Compl. ¶ 31.) In December 2010, Plaintiff received permission from then-Chief of Police James D. Fox to apply for a Training Detective position in the Training Unit. (PL's Compl. ¶ 32-33.) Deemed the most qualified for the position, Plaintiff was selected and transferred to the Training Unit on December 16, 2010. (PL's Compl. ¶ 34-35.) That year, Chief Fox also permitted Plaintiff to once again hold secondary employment. (PL's Compl. ¶ 38.) Thereafter, Abbitt Management hired Plaintiff as a courtesy officer. (PL's Compl. ¶ 39.)

On January 16, 2014, Richard W. Myers was sworn in as Chief of Police for the Newport News Police Department. (PL's Compl. ¶ 40.) On January 31, 2014, Chief Myers suspended Plaintiffs duties as Training Detective. (PL's Compl. ¶41.) In February 2014, Chief Myers launched a review into Plaintiffs 1996 charges. (PL's Compl. ¶ 44.) Plaintiff alleges that despite his exoneration, on March 16, 2014, Plaintiff was punitively transferred from the position of Training Detective to a civilian position in the Records Division and thereby suffered a significant demotion, tantamount to an outright dismissal. (PL's Compl. ¶ 47.) Plaintiff was also stripped of all police authority and all secondary positions. Id.

Plaintiff also alleges that Defendants publicized the adverse employment actions when they ordered Sgt. Karen Bozeman of the Newport News Police Department to inform Abbitt Management, Plaintiffs secondary employer, of the actions that were taken against Plaintiff. (PL's Compl. ¶ 49.) Abbitt subsequently terminated Plaintiffs employment. Id.

On May 28, 2014, Plaintiff filed a grievance pursuant to Virginia Law-Enforcement Officer's Procedural Guarantee Act, Virginia Code § 9.2-500-9.2-507 and claimed a demotion and transfer for punitive reasons. (PL's Compl. ¶ 51.) The City Manager's designee determined that Plaintiffs issues were "nongrievable." (Def.'s Mot. to Dismiss, Ex. G, "In Re: Jason L. Diedrich Grievance #14-06, MISC. No.: CL1401293F-15 (Grievability Appeal)".) Plaintiff appealed the decision to the Circuit Court for the City of Newport News which determined, inter alia, that (1) Plaintiffs transfer to the Records Unit was not a disciplinary demotion, (2) the transfer was fully within the rights reserved to the management of the City of Newport News, and (3) the matter was not grievable. Id. On September 23, 2014, Plaintiff filed a petition for appeal with the Supreme Court of Virginia.

On January 12, 2015, while his petition for appeal was still pending with the Supreme Court of Virginia, Plaintiff filed his Complaint. The Virginia Supreme Court dismissed Plaintiffs complaint on Defendant's ...

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