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Simpson v. Commonwealth

United States District Court, E.D. Virginia, Alexandria Division

July 21, 2016

JO ANN SIMPSON, individually and as personal representative of the estate of JOSHUA SIMPSON, Plaintiff,



         This matter is before the Court on Defendants' Motion to Dismiss. [Dkt. 3.] For the following reasons, the Court will grant Defendants' motion to dismiss and dismiss Plaintiff's Complaint [Dkt. 1-1].

         I. Background

         At the motion to dismiss stage, the Court must read the complaint as a whole, construe the complaint in the light most favorable to the plaintiff, and accept the facts alleged in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facts below are taken from Plaintiff's Complaint and facts available as a matter of public record. See Philips v. Pitt Cty. Mem'1 Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

         Plaintiff Jo Ann Simpson ("Plaintiff" or "Mrs. Simpson") brings this suit as the personal representative and administrator of the estate of the deceased Joshua Michael Simpson ("Decedent"). Decedent was a mentally ill individual living in Warrenton, Virginia in 2014. (Compl., ¶¶ 4, 6.) Plaintiff brings claims against Defendant the Commonwealth of Virginia ("the Commonwealth"), Defendant Steven Flaherty in his official capacity as the Superintendent of the Virginia Department of State Police ("Superintendent Flaherty"), and Defendants John Does ("Doe Defendants") who are currently unidentified police officers employed by the Virginia Department of State Police ("VSP"). (Id. at ¶¶ 7-9.) Collectively, the Court will refer to the Commonwealth, Superintendent Flaherty, and the Doe Defendants as "Defendants".

         Decedent lived in Warrenton, Virginia, and suffered from mental illness leading him to sometimes suffer paranoia and delusion. (Id. at ¶ 10.) Decedent suffered from a recurring delusion that he was the "King of Israel." (Id.) In or around 2013, Decedent was acquitted of a crime by reason of insanity.

         (Id. at ¶ 11.) At that time, the Warrenton Town Police seized Decedent's firearms after Decedent was involuntarily committed to a mental facility pursuant to a temporary detention order. (Id.)

         In or around 2014, Decedent's landlord retained a lawyer to initiate eviction proceedings against Decedent. (Id. at ¶ 12.) In response, Decedent delivered a strange letter to the landlord's attorney. (Id.) The letter ordered the landlord to turn the property over to Decedent as "the King of Israel." (Id.) The letter also purported to find the landlord guilty of various crimes. (Id.) The attorney contacted the Fauquier County Police Department ("FCPD") as a result of this letter.


         On October 4, 2014, the owner of "The Bridge, " a restaurant in Warrenton, contacted FCPD after receiving a similar strange letter from Decedent. (Id. at ¶ 13.) In that letter, Decedent again claimed to be the "King of Israel" and claimed that the owner of The Bridge had been accused of various crimes and convicted in absentia. (Id.) This letter demanded ownership of The Bridge and $20, 000. (Id.)

         On the morning of October 6, 2014, FCPD opened a criminal investigation into Decedent's letter to the owner of The Bridge. (Id. at ¶ 14.) FCPD were advised by an Assistant Commonwealth's Attorney at that time that Decedent had not yet made any direct threats, and thus no crime had yet been committed. (Id. at ¶ 14.) Later that same morning, Detective Lillard of the FCPD ("Lillard") was instructed to obtain, and did obtain, a warrant for an Emergency Custody Order ("ECO") requiring Decedent to undergo a mental evaluation. (Id. at ¶ 15.) At or around 1:30 p.m. of October 6, 2014, Detective Zeets of the FCPD ("Zeets") and Lillard attempted to serve the ECO on Decedent as Decedent was walking towards his residence. (Id. at ¶ 16.)

         Decedent refused to co-operate with Zeets and Lillard when he noticed their police vehicle, and fled into his residence. (Id.) Zeets attempted negotiations with Decedent through an open second-story window. (Id. at ¶ 17.) During these negotiations, Decedent threw a receipt documenting the purchase of a shotgun to Zeets. (Id.) Zeets was unable to persuade Decedent to voluntarily comply with the ECO, but was successful in obtaining Decedent's cell phone number. (Id. at ¶ 18.) Zeets continued intermittent communication with Decedent through his cell phone. (Id.)

         At or around 5:30 p.m. of October 6, 2014, VSP, FCPD, and the Warrenton Police Department ("WPD") held a joint briefing on the situation involving Decedent. (Id. at ¶ 19.) FCPD and WPD updated VSP and the Doe Defendants on the circumstances of the case, including Decedent's prior record and his history of mental illness. (Id.) At some point during Decedent's negotiations with the police, Decedent communicated to the police that he had built a model of The Bridge restaurant and believed that God had instructed him to place the model on the sidewalk in front of his house. (Id. at ¶ 21.) Decedent explained that he believed that if the model levitated back into his house at 9:00 a.m. it was God's will that Decedent be granted the demands in his letter to The Bridge's owner. (Id.) Decedent claimed that he would give up voluntarily if, at 9:00 a.m. on October 7, 2014, the model of the restaurant did not levitate back into his apartment, per the instruction he believed he had received from the Almighty. (Id.)

         At some point after 5:30 p.m. on October 6, 2014, VSP obtained a felony arrest warrant against Decedent for possession of a firearm by a person acquitted by reason of insanity. (Id. at ¶ 22.) At approximately 9:45 p.m. of October 6, 2014, Decedent walked onto his porch to give Zeets letters regarding God. (Id. at ¶ 23.) When Decedent walked onto his porch, unidentified police officers unsuccessfully attempted to incapacitate Decedent with a stun gun, causing Decedent to run back into the residence. (Id.) Once he was inside his house, Decedent informed police that no further progress would be made until morning. (Id.)

         At or around 12:00 a.m. on October 7, 2014, one or more heavily armed VSP Tactical Operations Teams comprised of Doe Defendant officers arrived on the scene with two armored personnel vehicles. (Id. at ¶ 24.) The Doe Defendants then deployed flashbangs to distract Decedent while breaching Decedent's window with a "throw phone." (Id.) Decedent responded to the use of flashbangs and the "throw phone" by firing shotgun shots from his window. (Id.) Beginning at or around 1:00 a.m. on October 7, 2014, the Doe Defendants deployed tear gas canisters into Decedent's house through the windows. (Id. at ¶ 25.) The Doe Defendants repeated this act several times over that night. (Id.) Each time Defendants deployed tear gas into his house, Decedent responded by firing his shotgun out of his window. (Id.) As many as 60 gas canisters were fired into Decedent's house overnight. (Id. at ¶ 26.)

         At approximately 6:45 a.m. the Doe Defendants deployed their final gas canister. (Id. at ¶ 27.) In response to the deployment of this gas canister, Decedent emerged from the front door of his house firing his shotgun. (Id.) As Decedent was exiting his house and firing his shotgun, several Doe Defendant police snipers took successive shots at Decedent, hitting him and leaving him lying on his back in the doorway. (Id. at ¶ 28.) As Decedent lay in the doorway, his shotgun was positioned between his legs with the barrel resting on the floor and the butt near his chest. (Id.) Another Doe Defendant sniper then fired a shot at Decedent's shotgun, rendering it inoperable. (Id. at ¶ 29.) Unsure as to whether Decedent was fully incapacitated or still posed an active threat, another Doe Defendant fired a beanbag round, striking Decedent in the chest. (Id. at ¶ 30.) After the beanbag struck Decedent, he threw it back towards police and requested that they "shoot [him] in the head." (Id.)

         At this point, FCPD brought in a K9 unit to attempt physical apprehension of Decedent. (Id. at ¶ 31.) At this point, multiple, conflicting orders were given regarding the K9 unit, with "multiple [unidentified] persons simultaneously issuing orders to both release, and not to release, the dog." (Id.) Ultimately, FCPD deployed the K9 dog and received "negative results, " as Decedent did not react to bites from the dog. (Id. at ¶ 32.) Decedent was then taken into custody and was transported to INOVA Fairfax Hospital, where he died from his gunshot wounds on October 10, 2014. (Id. at ¶ 33.)

         On December 3, 2014, Plaintiff was certified as the personal representative of Decedent's estate by the Clerk of the Circuit Court of Fauquier County. (Pl.'s Mem. in Opp'n, Ex. B. [Dkt. 18-1].) Plaintiff filed multiple FOIA requests regarding the events surrounding Decedent's death, and has received responses from the Town of Warrenton, Fauquier County, and the Fauquier County Commonwealth's Attorney. (Compl., 1 34.) Plaintiff had not, at the time of this motion, received a FOIA response from the VSP. (Id.) Plaintiff filed this suit in the Circuit Court for Fauquier County on December 21, 2015. It was removed to this Court by Defendants on February 18, 2016. (Notice of Removal [Dkt. 1].) Defendants filed this Motion to Dismiss on February 25, 2016. The matter was fully briefed, and argued on April 28, 2016. The Court requested supplemental briefing on the issue of Eleventh Amendment immunity at that time. That briefing was received on May 5, 2016, and May 9, 2016. The motion is now fully briefed and ripe for decision.

         II. Legal Standard

         Defendants move to dismiss under Rule 12(b)(1) for lack of jurisdiction and under Rule 12(b)(6) for failure to state a claim. "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). A motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the Court's subject matter jurisdiction over the pending action. Fed.R.Civ.P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. As relevant here, the assertion of immunity is properly addressed by the Court on a motion filed pursuant to Rule 12(b)(1). Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2001) (citing Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). In this instance, all facts alleged in the complaint are presumed to be true. Virginia v. United States, 926 F.Supp. 537, 540 (E.D. Va. 1995). "Federal courts are courts of limited jurisdiction, and we presume that a cause lies outside this limited jurisdiction. The burden of establishing the contrary rests upon the party asserting jurisdiction." Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 583-84 (4th Cir. 2012) (citation omitted).

         Defendants also challenge the sufficiency of the complaint under Rule 12(b)(6). "The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)(internal citation and quotation marks omitted). While the court must accept well-pleaded allegations as true when ruling on a Rule 12(b)(6) motion, the court need not accept as true legal conclusions disguised as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009). Therefore, a pleading that offers only a "formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Nor will a complaint that tenders mere "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.

         In the instance where sufficient facts are alleged in the complaint to rule on an affirmative defense, such as the statute of limitations, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense "clearly appear[ ] on the face of the complaint." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (emphasis in original); see also 5B Wright & Miller, Federal Practice & Procedure § 1357(3d ed. 2004).

         III. Analysis

         Plaintiff styles her Complaint as including Six Counts: (I) Wrongful Death; (II) Negligence; (III) Gross Negligence; (IV) Liability of the Commonwealth; (V) Violation of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("ADA"); and (VI) Violation of the Decedent's Fourth and Fourteenth Amendment Rights under 42 U.S.C. § 1983 (the "Constitutional Claims")-[1] Because Count I, Wrongful Death, merely establishes Plaintiff's standing to bring the suit for injuries suffered by Decedent and Count IV, Liability of the Commonwealth, merely lays out Plaintiff's argument for holding the Commonwealth liable on the other counts, there are in fact only four active claims contained in Plaintiff's complaint.[2] The Court will begin its analysis with a discussion on the basis of the Court's jurisdiction over Plaintiff's claims, and will then address the Defendants named by Plaintiff and the defenses raised by each of them in turn, beginning with the Commonwealth, proceeding through Superintendent Flaherty, and ending with the Doe Defendants.

         A. Jurisdiction

         Plaintiff originally filed this case in the Circuit Court for Fauquier County. It was removed to this Court by Defendants on February 18, 2016. (Notice of Removal [Dkt. 1].) As the basis for their removal, Defendants invoked, inter alia 28 U.S.C. §§ 1331, 1441, 1367(a). Section 1441 provides that except as otherwise provided, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district of the United States for the district and division embracing the place where such action is pending." Section 1331 provides that "the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Finally, § 1367(a) provides that, generally, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction of all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a).

         This Court has original jurisdiction over Plaintiff's claims brought under 42 U.S.C. § 1983 and the ADA pursuant to 28 U.S.C. 1331. It therefore has supplemental jurisdiction over Plaintiff's state law wrongful death claims pursuant to 28 U.S.C. 1367(a). Because this Court has original or supplemental jurisdiction over all of Plaintiff's claims, Defendants' removal was proper, and the case is properly before this Court.

         This Court's jurisdiction over Plaintiff's state law claims is dependent upon the existence of Plaintiff's claims arising in federal law. See 28 U.S.C. § 1367(a). Generally, dismissal of Plaintiff's federal law claims would result in a remand of Plaintiff's state law claims to state court for resolution. O'Bar v. Pinion,953 F.2d 74, 85 (4th Cir. 1991) . However, "[i]n a § 1983 action in federal court, where all federal claims are disposed of in favor of the defendants, leaving only state claims that have been briefed by both parties and are 'patently without merit, ' the balance between judicial efficiency and comity is struck in favor of the federal court's disposition of the state claims." McLenagan v. Karnes,27 F.3d 1002, 1009 (4th Cir. 1994)(quoting O'Bar ...

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