United States District Court, E.D. Virginia, Alexandria Division
JO ANN SIMPSON, individually and as personal representative of the estate of JOSHUA SIMPSON, Plaintiff,
COMMONWEALTH OF VIRGINIA, et al., Defendants.
C. CACHERIS ALEXANDRIA, VIRGINIA UNITED STATES DISTRICT COURT
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].
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).
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
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.
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.)
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.
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.)
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.)
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.)
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.)
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
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
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.)
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.)
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.
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)
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.
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).
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")- 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. 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
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).
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.
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 ...