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Epperson v. Payne

United States District Court, W.D. Virginia, Danville Division

March 30, 2017




         This matter is before the court on Defendants' respective motions to dismiss. [ECF Nos. 15, 17, & 20.] The matter has been fully briefed, and the parties appeared before me on March 21, 2017, to argue their positions on the facts and the law. After due consideration, and for the reasons stated herein, Defendant Stephanie Brinegar-Vipperman's Motion to Dismiss will be granted, Defendants Calvin and Vickie Payne's Motion to Dismiss will be denied, and Defendants Brian Hubbard, Terry Mikels, and Danny Martin's Motion to Dismiss will be granted in part and denied in part.


         Until October 19, 2015, Plaintiffs Tamara, James, Kyle, and Mason Epperson (“Plaintiffs”) resided at 4037 Ararat Highway in Patrick County, Virginia (“the property”).[2](Compl. ¶¶ 5-6.) On October 19, Defendants Calvin and Vickie Payne (“the Paynes”) purchased the property at a foreclosure auction. (Id. ¶ 8.) After the sale, the Paynes contacted Plaintiffs and informed them that they had purchased their home. (Id. ¶ 12.) Mr. Epperson told Mrs. Payne that he and his family had made arrangements to move out of the home, but he requested a few weeks to complete the move. (Id. ¶ 13.) Mrs. Payne agreed to give Plaintiffs some time to complete the move and agreed that they would, at some point in the future, finalize a date by which Plaintiffs would permanently vacate the property. (Id. ¶ 14.) In return, Plaintiffs would provide the Paynes with the opportunity to inspect the home prior to Plaintiffs' moving out. (Id.)

         The night of the foreclosure sale, and the night of Mr. Epperson's conversation with Mrs. Payne, Mr. Epperson was awakened by noise outside the property. (Id. ¶ 16.) Mr. Epperson went downstairs and heard voices near his garage. (Id. ¶ 17.) He also observed a white pickup truck leaving the property. (Id.) Mr. Epperson armed himself and waited in the living room for approximately one hour, fearing that whoever had been outside his home would return. (Id. ¶ 18.) No one did, so he returned to bed.

         The next morning, Mr. Epperson was at the property while his son, Kyle, was home from school and sick in bed. (Id. ¶ 20.) Again, Mr. Epperson heard voices in the garage. (Id. ¶ 22.) Remembering the commotion from the last night, Mr. Epperson got his shotgun, activated his security system, and proceeded to investigate the voices. (Id. ¶ 24.) Mr. Epperson looked though an interior window into the garage and saw five (5) individuals inside or near the garage. (Id. ¶ 28.) The individuals were later determined to be Defendants Brian Hubbard, Danny Martin, and Terry Mikels, along with Calvin and Vickie Payne. (Id. ¶¶ 28, 31.)

         Defendants Hubbard, Martin, and Mikels (“the deputies”) were, at the time, investigators with the Patrick County Sheriff's Office. (Id. ¶ 9.) They observed Mr. Epperson through the window and saw that he held his shotgun at the “ready” position. (Id. ¶ 32.) The deputies yelled for Mr. Epperson to put down his shot gun and, once he realized that the deputies were with the Sheriff's Department, he complied. (Id. ¶¶ 33-34.) The deputies, followed by the Paynes, entered the home, placed Mr. Epperson in handcuffs, patted him down, removed the house keys from his pocket, turned the keys over to the Paynes, and escorted Mr. Epperson to the police car. (Id. ¶ 35.) They also proceeded to search the home. (Id. ¶ 37.) They yelled to Kyle Epperson to come downstairs from his bedroom. (Id. ¶ 38.) Once he was downstairs, the deputies put him in handcuffs at gunpoint and escorted him from the home. (Id.) The deputies told Kyle that the property “was no longer his home and he was no longer permitted to enter or be in it.” (Id. ¶ 40.)

         The deputies then permitted the Paynes to take possession of the property. Since that time, the Paynes have not returned the property to Plaintiffs. (Id. ¶ 42.)

         The deputies transported Mr. Epperson to the magistrate and charged him with three counts of brandishing a firearm. (Id. ¶ 46.) He was thereafter committed to jail until Mrs. Epperson posted his bond several hours later. (Id. ¶ 47.) On January 5, 2017, the court dismissed the charges against Mr. Epperson on Defendant Commonwealth's Attorney Stephanie Brinegar-Vipperman's motion to nolle prosequi. (Id. ¶ 52.)

         Since October 20, 2015, Plaintiffs have not been permitted to return to the property except with the express permission of the Paynes. (Id. ¶ 51.) The Paynes have prohibited Plaintiffs from retrieving the personal property from the home they were forced to abandon when the deputies removed them at gunpoint. (Id. ¶ 54.) To date, the Paynes still possess thousands of dollars of Plaintiffs' personal property.

         Plaintiffs aver that, at some point on October 19 or 20, 2015, the Paynes requested that the deputies assist them in taking possession of the property. (Id. ¶ 56.) When asked by the deputies if they could assist the Paynes, Defendant Stephanie Brinegar-Vipperman told the deputies they could. (Id. ¶ 57.) The Paynes did not obtain a court order pursuant to an unlawful detainer action, and the deputies did not obtain a search warrant.

         Plaintiffs brought suit in this Court against Defendants on October 19, 2016. They have alleged: violation of their due process rights, pursuant to 42 U.S.C. § 1983, against the deputies (Count I); violation of their Fourth Amendment rights, pursuant to 42 U.S.C. § 1983, against the deputies (Count II); supervisory liability under 42 U.S.C. § 1983 against Brinegar-Vipperman (Count III); unlawful eviction against all Defendants (Count IV); common-law trespass against the Paynes and the deputies (Count V); common-law conversion against the Paynes and the deputies (Count VI); and malicious prosecution against the deputies (Count VII). All Defendants filed motions to dismiss, and I held on hearing on the motions on March 21, 2017.


         When a challenge to subject matter jurisdiction is raised under Rule 12(b)(1), “the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). “In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. “The court must grant the motion ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'” Little v. Stock Bldg. Supply, LLC, Case No. 4:10-cv-129, 2011 WL 5146179, at *3 (E.D. N.C. Sept. 2, 2011) (quoting Richmond, 945 F.2d at 768). Generally speaking, allegations of Eleventh Amendment immunity, like those raised by Commonwealth's Attorney Stephanie Brinegar-Vipperman, are treated as challenges to subject matter jurisdiction. See, e.g., Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual allegations in the complaint as true. Id. The Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.



         Brinegar-Vipperman is named in Counts III (supervisory liability) and Count IV (unlawful eviction) and, presumably, Plaintiffs have sued Brinegar-Vipperman in both her official and individual capacity. Insofar as Brinegar-Vipperman is sued in her official capacity, the Eleventh Amendment bars recovery.

         Pursuant to the Eleventh Amendment, the “judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state.” U.S. Const. amend. XI. The immunity afforded by this Amendment has been interpreted to extend beyond its literal terms. Specifically, the Supreme Court has interpreted the Eleventh Amendment to bar suits by citizens against their own state in federal court. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). “It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment.” Id. at 663. “[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Dep't of ...

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