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, individually and on behalf of all others similarly situated, Plaintiff,
F. GLENN AYLOR, et al., Defendants.
Glen E. Conrad, United States District Judge
Sherry Lynn 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 for reconsideration of their 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 below, the motion will be denied.
and Procedural Background
court previously summarized the facts in this case. See
Thornhill v. Aylor, No. 3:15-CV-00024, 2016 U.S.
Dist. LEXIS 20153, at *2-10 (W.D. Va. Feb. 19, 2016). As
relevant here, on August 27, 2015, Thornhill filed an amended
class action complaint against eleven defendants. Defendants
then filed separate motions to dismiss, which the court
granted in part and denied in part. Only Count 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 pending against the Authority, Aylor,
and three of the employees.
April 4, 2017, the remaining defendants filed a motion to
certify the following question of state law to the Supreme
Court of Virginia: Are the Authority and its employees
entitled to sovereign or governmental immunity under the laws
of the Commonwealth of Virginia? On May 25, 2017, the court
denied the motion.
September 30, 2017, a decision was issued in Haleem v.
Quinones, No. 5:17-cv-00003, 2017 U.S. Dist. LEXIS 16138
(W.D. Va. Sept. 30, 2017), granting sovereign immunity to a
Virginia regional jail authority and granting the
defendant's motion to dismiss for lack of jurisdiction.
In light of the decision in Haleem, the defendants
filed the instant motion for reconsideration of the
court's May 25, 2017 opinion and order denying their
certification motion. On October 17, 2017, the parties
appeared before the court for a hearing on the motion, and
the matter is now ripe for review.
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." In denying the defendants' motion to
certify, the court found that the question the defendants
sought to certify was not determinative and that the existing
precedent was sufficient to decide the question.
the first rationale, the court observed that it had already
ruled that the plaintiff stated a plausible claim under
Monell v. Department of Social Services, of New
York, 436 U.S. 658, 690 (1978). Whether the Authority
and its employees have state sovereign immunity will not
impact the Monell claim, which permits suits against
local government units like the Authority and requires a
showing of deliberate indifference, meaning more than mere
negligence. Virginia law does not grant sovereign immunity to
state officials accused of 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). Accordingly, the court found that, by plausibly
stating a Monell claim, the state sovereign immunity
issue was not case-dispositive.
the second rationale, the court recognized that despite a
contrary decision in Dowdy v. Pamunkey Reg'l Jail
Auth., 2104 U.S. Dist. LEXIS 67127 (E.D. Va. May 15,
2014), three federal district courts and one Virginia Circuit
Court have ruled that regional jail authorities are not
entitled to sovereign immunity under the laws of Virginia.
Finamore v. Trent, No. CL15-000881, at *2 (Va. Cir.
Ct. Oct. 27, 2016) (summarizing case history). The court
concurred in the ruling of the majority of courts to have
addressed the issue, finding that the Authority did not
satisfy the requirement for sovereign immunity under Virginia
law that it be either an "arm of the State" or a
municipal corporation performing a government function. The
court found the Authority to be neither. In particular, the
court ruled that the Authority was not a municipal
corporation because it was not created as a body corporate or
political subdivision of the Commonwealth and it lacked the
power of eminent domain.
the court recognized that, in 2014 and again in 2015, a bill
was introduced in the Virginia General Assembly with the
purpose of granting sovereign immunity to regional jail
authorities. See H.B. 150, Gen. Assemb., Reg. Sess. (Va.
2014); H.B. 1513, Gen. Assemb., Reg. Sess. (Va. 2015). In
both years, the Virginia General Assembly did not pass the
bills. The introduction of those bills clearly indicates that
the Virginia General Assembly is aware that regional jail
authorities do not possess sufficient attributes of a
municipal corporation to be vested with sovereign immunity
under Virginia law, or are otherwise not an arm of the state.
The legislature's decision not to extend such protection,
or to amend the statute granting the essential attributes of
a municipal corporation to regional jail authorities,
confirms that these entities do not have such immunity.
Short Pump Town Ctr. Cmty. Dev. Auth. v. Hahn, 554
S.E.2d 441, 447 (Va. 2001) ("[I]n the absence of any
statutory designation of community development authorities as
'political subdivisions, ' [the Supreme Court of
Virginia] conclude[s] that the [entity] is not such.").
the court rejected the defendants' argument that the
state sovereign immunity granted to Virginia sheriffs when
performing discretionary acts flows from the sheriffs to
regional jail authorities and their employees because the
sheriffs sit on a board that oversees those authorities.
Although a possibly novel argument, the court recognized that
the mere existence of a novel theory does not compel
certification. Indeed, certification is unnecessary when
existing case law permits the court to reach a "reasoned
and principled conclusion." See Lynn v. Monarch
Recovery Mgmt. Inc.. 953 F.Supp.2d 612, 622 (D. Md.
2013) (citing Simpson v. Duke Energy Corp.. No.
98-1906, 1999 U.S. App. LEXIS 21553 (4th Cir. Sept. 8,
1999)). The court recognized that here, the existing case law
addresses when an employee of a state agency is entitled to
sovereign immunity, see, e.g., James v. Jane, 282
S.E.2d 864 (Va. 1980), and whether an entity or individual is
an agent of the Commonwealth entitled to sovereign immunity
for discretionary acts, see Atkinson v. Sachno, 541
S.E.2d 902, 905 (Va. 2001). The court further noted that this
argument presents a factual inquiry, and not a "question
of Virginia law" for which Rule 5:40 of the Rules of the
Supreme Court of Virginia provides a basis for certification.
See Whitley v. Commonwealth, 538 S.E.2d 296, 302
(Va. 2000) ("[Sovereign immunity is a defensive plea
presenting distinct issues of fact which, if proved, create a
bar to a plaintiffs right of recovery.");
Atkinson, 541 S.E.2d at 905 (noting that the status
as an employee or instrumentality of the state is usually a
question of fact).
court continues to find its prior analysis persuasive. The
decision in Haleem does not change the court's
finding that the question sought to be certified is not
case-dispositive. While Haleem does alter the
balance of decisions addressing the question, the ...