United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
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.
STATEMENT OF FACTS AND PROCEDURAL
October 19, 2015, Plaintiffs Tamara, James, Kyle, and Mason
Epperson (“Plaintiffs”) resided at 4037 Ararat
Highway in Patrick County, Virginia (“the
property”).(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.)
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.
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.)
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. ¶
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.)
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.)
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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.
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