United States District Court, E.D. Virginia, Norfolk Division
ROXANNE ADAMS, Administrator of the Estate of Jamycheal M. Mitchell, Plaintiff,
NAPHCARE, INC. et al., Defendant.
MEMORANDUM OPINION AND ORDER
LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE.
Roxanne Adams is the administrator of the estate of Jamycheal
M. Mitchell, a pre-trial detainee who died while incarcerated
at the Hampton Roads Regional Jail. Plaintiff has brought
this action against a variety of jail officials, correctional
officers, jail medical care providers and administrators,
Portsmouth General District Court clerks, a clerical state
hospital employee, and the Commissioner of the Virginia
Department of Behavior Health and Developmental Services
("DBHDS"). Plaintiff has alleged that each of these
Defendants, acting in their personal capacities, caused or
contributed to cause the wrongful death of Mr. Mitchell and
the violation of his civil rights. The Court has held
multiple hearings on this matter, at which counsel for the
parties have argued zealously and passionately.
recently, on October 19, 2016, the Court held a hearing on
motions to dismiss filed by fifteen of the thirty-eight
Defendants. These motions were referred to the undersigned
for report and recommendation by the Chief District Judge.
The hearing, which lasted for four hours, included argument
regarding the dispositive motion filed by Defendant Ferguson,
the DBHDS Commissioner. One of the affirmative defenses
raised by Commissioner Ferguson is qualified immunity, and
this issue was argued extensively at the hearing by her
counsel, David Corrigan, and by Plaintiffs counsel, John
Preis. Mr. Preis, an attorney of record in this case, is also
a full-time professor with the T.C. Williams School of Law at
the University of Richmond. At the conclusion of the hearing
the Court took the motions under advisement in order to
prepare reports and recommendations to the Chief District
days later, on October 21, 2016, the law clerk for the
undersigned attended the Institute for Federal Law Clerks
seminar held at the law school at University of Richmond.
This seminar, which is sponsored biennially by the District
Judges Association of the Fourth Circuit and the University
of Richmond, is limited in attendance to federal law clerks
in the Fourth Circuit. Thirty-five law clerks from the
Eastern District of Virginia were in attendance, including
the undersigned's and all of those of the Chief District
Judge. Mr. Preis was one of the lecturers at this seminar,
speaking on the topic of "Recent Developments in the
United States Supreme Court and the Fourth Circuit."
Following the conclusion of his prepared remarks, Mr. Preis
addressed the doctrine of qualified immunity, which was
unrelated to his topic. In these remarks, he specifically
discussed the instant case, advising the audience that he was
presently involved in this litigation and addressing the
qualified immunity defense asserted by Commissioner Ferguson.
Although he did not refer to her by name, he did refer to
Commissioner Ferguson generally as a state agency
commissioner responsible for the medical care of state
prisoners. In addition, he presented to the assembled law
clerks his perspective on why the qualified immunity defense
should not be available. Mr. Preis' remarks were not
recorded on either video or audio. Of course, neither Mr.
Corrigan nor any of the other counsel for the defendants was
in attendance at this seminar.
been advised by the undersigned's law clerk of these
events and being concerned about the possibility that Mr.
Preis' conduct might constitute an attempted ex parte
communication, the Court issued its Order on October 27,
2016, advising the parties of these events and setting the
matter for hearing. Canon 3A(4) of the Canons of Judicial
Ethics provides, inter alia:
Except as set out below, a judge should not initiate, permit,
or consider ex parte communications or consider other
communications concerning a pending or impending matter that
are made outside the presence of the parties or their
lawyers. If a judge receives an unauthorized ex parte
communication bearing on the substance of a matter, the judge
should promptly notify the parties of the subject matter of
the communication and allow the parties an opportunity to
respond, if requested.
Order the Court advised the parties of their opportunity to
respond at the hearing, if they so requested. The Court also
included in its Order a direction to Mr. Preis to show cause
"why the Court should not consider his conduct to
constitute an attempted ex parte communication as to the
merits of this case, in contravention of Rule 3.5(e) of the
Virginia Rules of Professional Conduct."
to the hearing, Mr. Preis filed a response to the Court's
Order on October 28, 2016, in which he acknowledged the
appropriateness of the Court's concern and expressed
regret "that his conduct has given rise to such
concerns." ECF No. 141 at 1-2. Following that
introduction, Mr. Preis then provided a statement of facts
explaining the circumstances of his conduct at the seminar,
and advanced three arguments seeking to establish that he had
not violated the aforementioned Virginia Rule of Professional
Conduct. Id. at 2-10. First, he stated he did not
know the aforementioned law clerks were present so he could
not have attempted to communicate with them. Id. at
7. Additionally, Mr. Preis equated his comments before the
federal law clerk audience to a general public communication,
claiming that if this was an attempted ex parte
communication, "then many other public statements could
reasonably be deemed ex parte communications as well."
Id. Lastly, he contended he "did not advocate a
particular result or urge a particular position" in his
hearing was subsequently held on November 1, 2016. ECF No.
143. Mr. Mark Krudys and Mr. Preis represented the Plaintiff.
Also present were Mr. Corrigan for Defendant Ferguson; Ms.
Grace McNelis for Defendants Naphcare, Inc., Kolongo,
Edwards, Ray, Ngwa, Johnson, Thomas, Rivers, Nicholson, and
Murphy; Mr. Nicholas Simopoulos for Defendants Boyd and
Davis; Mr. Jeffrey Hunn for Defendants Hampton Roads Regional
Jail Authority, Hampton Roads Regional Jail, Simons, Taylor,
Gibbs, Hilliard, Keister, Powell, Smith, Johnson, Phillips,
Everette, Madison, and Cowan; Mr. Gregory Holland for
Defendant Hart; and Mr. Mark Colombell for Defendants Barnes,
Blakely, Bourne, Butcher, Brown, Dixon, Epperson, Whitaker,
R. Whitehead, and S. Whitehead. The transcript of the hearing
was prepared and filed on November 14, 2016. ECF No. 145.
Preis addressed the Court first, and apologized for the
"trouble" caused by his conduct. Id. at 6.
He acknowledged that he had erred in addressing this case to
the law clerks at the seminar, and stated that he did not
appreciate his error at the time. Id. at 7-8. He
represented that he did not appreciate that any law clerks
who were connected to this case might be in attendance at the
seminar, and while he recognized the undersigned's law
clerk as someone who looked familiar, did not make the
connection that he was, in fact, the undersigned's law
clerk. Id. at 8-9. Mr. Preis claimed he discussed
this case as an illustration and did not intend to persuade
the law clerks or argue his position. Id. at 9. He
expressed his concern and regret over this situation and
assured the Court that he took this matter seriously.
Id. at 8.
Court then provided each of the parties, through their
counsel, an opportunity to respond. Mr. Corrigan, on behalf
of Commissioner Ferguson, addressed the three arguments Mr.
Preis advanced in his show cause response. First, Mr.
Corrigan argued that, while he accepted Mr. Preis'
representation that he did not appreciate that law clerks
connected to this case were in attendance, he believed Mr.
Preis should have known that. Id. at 11. Second, he
argued that Mr. Preis' comments were not like a general
public statement, because they were addressed to a limited
audience composed solely of federal law clerks. Id.
at 12. Third, he accepted that Mr. Preis believed he did not
advocate for his position in his remarks, but proffered that
it was more likely that he did so advocate since he believed
a listener always knows which side of an issue a person is on
when talking about a case, especially one in which they are
involved. Id. at 12-13. Mr. Corrigan left it to the
Court to decide what effect should be given Mr. Preis'
conduct, and requested that it not favor the Plaintiff but
instead be taken in consideration in weighing Commissioner
Ferguson's motion to dismiss. Id. at 13.
McNelis then addressed the Court on behalf of Defendants
Naphcare, Inc., Kolongo, Edwards, Ray, Ngwa, Johnson, Thomas,
Rivers, Nicholson, and Murphy. She emphasized the potential
outsized influence Mr. Preis might command before his law
clerk audience, given his status as a law professor.
Id. at 14-15. She expressed concern that the fact
that Mr. Preis saw fit to discuss this ongoing case outside
the confines of this lawsuit might result in him later
discussing the case with persons who might become jurors.
Id. at 15. Consequently, she suggested that Mr.
Preis' "continued involvement in this case raises
some significant concerns..." Id. Nonetheless,
she did not move to disqualify Mr. Preis as counsel or
suggest any remedy. Id.
Simopoulos on behalf of Defendant Hart suggested that Mr.
Preis should have been more careful than to discuss an
ongoing case when addressing judicial law clerks from the
Court in which that case is being litigated. Id. at
Hunn on behalf of Defendants Hampton Roads Regional Jail
Authority, Hampton Roads Regional Jail, Simons, Taylor,
Gibbs, Milliard, Keister, Powell, Smith, Johnson, Phillips,
Everette, Madison, and Cowan took no position with respect to
by the Court's ...