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Thornhill v. Aylor

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

May 25, 2017

SHERRY LYNN THORNHILL, for herself and as Administrator of the Estate of her son, Shawn Christopher Berry, deceased, Plaintiff,
v.
F. GLENN AYLOR, et al., Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         Plaintiff Sherry Lynn Thornhill ("Thornhill"), on behalf of herself and as administrator of the estate of her son, Shawn Christopher Berry, filed this action pursuant to 42 U.S.C. § 1983 and Virginia Code § 8.01-50, et seq., against the Central Virginia Regional Jail Authority (the "Authority"), Superintendant F. Glenn Aylor, and several employees at the Central Virginia Regional Jail ("CVRJ"), arising out of Berry's death while in custody. The case is presently before the court on defendants' motion to certify to the Supreme Court of Virginia the question of whether regional jail authorities and their employees are entitled to sovereign immunity under Virginia law. For the reasons stated, the motion will be denied.

         Factual and Procedural Background

         The court has previously summarized the facts of the instant matter, as alleged in plaintiffs amended complaint, in its previous memorandum opinion. See Thornhill v. Aylor, No. 3:15-CV-00024, 2016 U.S. Dist. LEXIS 20153, at *2-10 (W.D. Va. Feb. 19, 2016). On August 27, 2015, Thornhill filed an amended class action complaint against eleven defendants. Defendants then filed separate motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which the court granted in part and denied in part. Only Counts II, asserting a claim for damages under 42 U.S.C. § 1983, and Count III, alleging wrongful death in violation of Virginia Code § 8.01-50, remain against the Authority, Aylor, and three of the employees. On April 4, 2017, the remaining defendants filed a motion to certify a question of state law to the Supreme Court of Virginia. The court held a hearing on the motion, and the matter is ripe for review.

         Discussion

         "A federal court's certification of a question of state law to that state's highest court is appropriate when the federal tribunal is required to address a novel issue of local law which is determinative in the case before it." Grattan v. Bd. of Sch. Comm'rs of Bait. City, 805 F.2d 1160, 1164 (4th Cir. 1986). "[T]he decision whether to certify is, as it must be, within the discretion of the certifying court." West Am. Ins. Co. v. Bank of Isle of Wight, 673 F.Supp. 760, 763 (E.D. Va. 1987). When addressing state-law claims and there is no case law from the state which is directly on point, "the district court attempts to do the same as the state court would do if confronted with the same fact pattern." Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 1994) (citing Wilson v. Ford Motor Co., 656 F.2d 960, 961 (4th Cir. 1981)). "Only if the available state law is clearly insufficient should the court certify the issue to the state court." Id. (citing Smith v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984)). Rule 5:40 of the Rules of the Supreme Court of Virginia provides that the Supreme Court of Virginia "may in its discretion answer questions of law certified to it by ... a United States district court. Such answer may be furnished ... if a question of Virginia law is determinative in any proceeding pending before the certifying court and it appears there is no controlling precedent on point in the decisions of the [Supreme Court of Virginia] or the Court of Appeals of Virginia." Defendants seek to certify to the Supreme Court of Virginia the question of whether the Authority and its employees are entitled to sovereign immunity under the laws of the Commonwealth of Virginia. After reviewing the available case law and the issues involved in the instant case, the court concludes that the question sought to be certified is not case-dispositive and that the available authority is sufficient to decide the question. Accordingly, the court will deny the motion to certify.

         In the instant case, plaintiff alleges both state and federal claims. As to the federal claim, it is well-settled that local governing bodies may be sued directly under § 1983 for monetary, declaratory, or injunctive relief when an unconstitutional act "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). The court has already determined that plaintiff has stated a Monell claim against the Authority, and whether the Authority and its employees have state sovereign immunity will not impact this claim. See Id. ("Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.") (emphasis in original). Furthermore, it is black-letter Virginia law that state officials are not entitled to sovereign immunity when they commit an intentional tort or acts constituting gross negligence. See, e.g., Coppage v. Mann, 906 F.Supp. 1025, 1047 (E.D. Va. 1995); Tomlin v. McKenzie, 468 S.E.2d 882, 884 (Va. 1996). By plausibly alleging deliberate indifference as part of her Monell claim, Thornhill has asserted more than mere negligence by the Authority. Therefore, at this juncture, whether the Authority is entitled to sovereign immunity under the laws of the Commonwealth of Virginia is not case-dispositive. This alone should counsel against certification.

         However, the court also believes that the available authority on the issue demonstrates that certification is unnecessary and inappropriate. It is true that there is a split between the district courts in this Circuit as to whether regional jail authorities are entitled to state sovereign immunity. Compare Hauth v. Southeastern Tidewater Opportunity Project, Inc., 420 F.Supp. 171 (E.D. Va. 1976) (holding that regional jail authorities are not entitled to sovereign immunity); Heckenlaible v. Va. Reg'l Peninsula Jail Auth., 2006 U.S. Dist. LEXIS 79719 (E.D. Va. Nov. 1, 2006) (same); Boren v. Northwestern Reg'l Jail Auth.. 2013 U.S. Dist. LEXIS 140169 (W.D. Va. Sept. Sept. 30, 2013) (same); Heywood v. Va. Peninsula Reg'l Jail Auth., 2015 U.S. Dist. LEXIS 112517 (E.D. Va. July 21, 2015) (same), report and recommendation adopted, 2015 U.S. Dist. LEXIS 111249 (E.D. Va. Aug. 21, 2015), with Dowdy v. Pamunkey Reg'l Jail Auth., 2014 U.S. Dist. LEXIS 67127 (E.D. Va. May 15, 2014) (finding that the regional jail authority was shielded by sovereign immunity). Additionally, neither the Fourth Circuit, the Supreme Court of Virginia, nor any Court of Appeals of Virginia have had the opportunity to answer this question. Nevertheless, three federal district courts and one Virginia Circuit Court have determined that regional jail authorities are not entitled to sovereign immunity under the laws of Virginia. See Finamore v. Trent, No. CL15-000881, at *2 (Va. Cir. Ct. Oct. 27, 2016) (summarizing the case history).

         To be entitled to sovereign immunity, the Authority must either be an "arm of the State" or be considered a municipal corporation performing a governmental function. Boren, 2013 U.S. Dist. LEXIS 140169, at *10; see also VEPCO v. Hampton Redev. & Housing Auth.. 225 S.E.2d 364, 364-65 (Va. 1976) (analyzing whether the Hampton Redevelopment Housing Authority was an arm of the state, and afforded sovereign immunity, or a municipal corporation and afforded sovereign immunity for its governmental functions). "As a threshold matter, 'it is clear that Virginia regional jails are not an arm or agency of the state.'" Finamore, No. CL15-000881, at 3 (citing Boren, 2013 U.S. Dist. LEXIS 140169). A regional jail authority requires local activation to come into existence, and such activation "negates [the Authority's] status as a state agency or an 'arm' of the Commonwealth." Cty. of York v. Peninsula Airport Comm'n. 369 S.E.2d 665, 666 n.l (Va. 1988) (citing Prendergast v. Park Auth., 313 S.E.2d 399, 401 (Va. 1984)). Thus, to be shielded by sovereign immunity, the Authority must be considered a municipal corporation performing a governmental function.

         The Supreme Court has enumerated six factors that are "deemed essential" to the determination of whether an entity should be considered a municipal corporation:

(1) Creation as a body corporate and politic and as a political subdivision of the Commonwealth;
(2) Creation to serve a public purpose;
(3) Power to have a common seal, to sue and be sued, to enter into contracts to acquire, hold and dispose of its revenue, ...

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