United States District Court, W.D. Virginia, Lynchburg Division
Robert E. Lee Supinger, Jr., Plaintiff,
Commonwealth of Virginia, et al., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff’s motion for
partial summary judgment (docket no. 94).
seeks summary judgment on his due process claim under 42
U.S.C. § 1983 against Defendants Richard Holcomb, Joseph
Hill, Jeannie Thorpe, and Tom Penny. As explained below,
Plaintiff’s motion will be granted in part and denied
instituted this action in the Lynchburg City Circuit Court,
and the Defendants removed to this Court. In his original
complaint, Supinger alleged various claims against multiple
defendants. On March 2, 2016, I dismissed several of
Supinger’s claims, but allowed his claim of deprivation
of procedural due process, among others, to go forward.
See Docket No. 82.
April 4, 2016, Supinger filed a motion for leave to file a
second amended complaint. See Docket No. 91.
Magistrate Judge Robert Ballou entered a report and
recommendation recommending that I grant the motion in part
and deny the motion in part. I adopted Judge Ballou’s
report and recommendation in full on June 21, 2016, and on
June 22, 2016, Supinger filed an amended complaint.
has now filed a motion for partial summary judgment on his
procedural due process claim.
Standard of Review
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” “As
to materiality . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In order to preclude summary judgment, the dispute
about a material fact must be “‘genuine, ’
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of
material fact “is merely colorable or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving
party. See, e.g., Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir. 1994).
was an Assistant Special Agent in Charge in DMV’s
Lynchburg, Virginia, office. As a result of a conflict
between Supinger and DMV, which is described more fully in
Supinger v. Virginia, F.Supp.3d, 2016 WL 865332
(W.D. Va. March 2, 2016), Supinger was suspended on February
28, 2012. Pl.’s Ex. 2, at 2.
non-probationary law enforcement officer, Supinger had two
means of grieving his suspension. Supinger could proceed
under the Commonwealth of Virginia’s Grievance
Procedure, Va. Code § 2.2-3000, et seq.
(hereinafter, “VGP”), a process managed by the
Office of Employment Dispute Resolution (“EDR”).
Alternatively, Supinger could proceed under Va. Code §
9.1-500, et seq., known as the Law-Enforcement
Officers Procedural Guarantee Act
March 29, 2013, Supinger elected to grieve his suspension
under the VGP. In order to grieve his suspension under the
VGP, Supinger was required to “initiate [his] grievance
on a fully completed ‘Grievance Form A.’”
Office of Emp’t Dispute Resolution Grievance Procedure
Manual, at § 2.4 (hereinafter, “GP
Manual”). Supinger duly submitted a Grievance From A
regarding his suspension from employment. Pl.’s Ex. 3.
on April 9, 2013, Hill issued to Supinger five Written
Notices of Discipline and terminated his employment with DMV.
Pl.’s Exs. 5. Two of Supinger’s fellow employees,
David Stultz and Anastasia Wootten, were also terminated. The
Virginia Attorney General appointed Karen Michael as special
counsel to represent DMV in Supinger, Wootten, and
Stultz’s administrative proceedings.
April 17, 2013, Supinger, Wootten, and Stultz petitioned the
Richmond City Circuit Court to enjoin Michael’s
appointment as special counsel. The Commonwealth demurred and
moved to dismiss the petition.
April 26, 2013, Michael contacted Christopher Grab, the
Director of EDR, and sought on DMV’s behalf “an
immediate Order by EDR to stay all proceedings as it relates
to any current, pending and/or future grievances that may be
filed by Grievant.” Pl.’s Ex. 7, at 2. Michael
requested that the stay remain in place until the lawsuit
seeking to remove Michael as special counsel was resolved.
responded to Michael’s request on May 3, 2013. Grab
wrote that “[EDR] considers the filing timeframe for
dismissal grievances in these matters tolled during the
pendency of the ...