United States District Court, W.D. Virginia, Charlottesville Division
SHERRY LYNN THORNHILL, for herself and as Administrator of the Estate of her son, Shawn Christopher Berry, deceased, Plaintiff,
F. GLENN AYLOR, et al., Defendants.
Glen E. Conrad Chief United States District Judge
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.
and Procedural Background
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.
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
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
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).
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.
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,