United States District Court, W.D. Virginia, Roanoke Division
CARLAA. CLEHM Plaintiff,
BAE SYSTEMS ORDNANCE SYSTEMS, INC., et al. Defendants.
Michael F. Urbanski Chief United States District Judge
that remains of this employment case is a single, state law
claim of assault and battery (Count II) against incarcerated
defendant Joshua Linkous, who is proceeding pro se.
The court has retained jurisdiction over this claim and, by
order entered February 9, 2018, required Linkous to formally
respond to Count II of the Second Amended Complaint. Linkous
did so by filing a motion to dismiss, which the court
received on March 12, 2018.Linkous argues that Count II
should be dismissed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, because Tide VII does not give rise
to individual liability and because die court already awarded
plaintiff Carla Clehm restitution in connection widi
Linkous's related criminal proceedings. Count II is not a
Tide VII claim, however, and the previous restitution order
does not bar recovery in diis civil case. Accordingly,
Linkous's motion will be DENIED and diis
matter will be set down for furdier proceedings.
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal when a plaintiff fails "to state a claim upon
which relief can be granted." To survive a Rule 12(b)(6)
motion to dismiss, a complaint must contain sufficient
"facts to state a claim to relief that is plausible on
its face." Bell Atl. Corp. v. Twombly. 550 U.S.
544, 570 (2007). The complaint's "[f] actual
allegations must be enough to raise a right to relief above
the speculative level." Id. at 555.
ruling on a motion to dismiss, a court must view the claims
in the light most favorable to the non-moving party, and all
allegations are accepted as true. See Republican Party of
North Carolina v. Martin. 980 F.2d 943, 952 (4th Or.
1992). However, "[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal.
556 U.S. 662, 678 (2009).
argues this case should be dismissed because Title VII does
not give rise to individual liability. To be sure,
Clehm's Second Amended Complaint alleged claims of sex
discrimination and harassment and retaliation pursuant to
Title VII of the Civil Rights Act of 1964. But Clehm asserted
those claims only against defendant BAE Systems Ordnance
Systems, Inc., Linkous's employer, and they were
dismissed by Memorandum Opinion and Order entered December 4,
2017. There is no Title VII claim asserted against Linkous
individually, nor is there any Title VII claim left pending
in this case. Linkous's argument is inapposite.
also argues the court should dismiss Count II against him
because he pled guilty to the relevant conduct in a related
federal criminal proceeding, and the court ordered him to pay
Clehm restitution in that case. Clehm contends this is a fact
outside of the pleadings that the court cannot consider at
the Rule 12(b)(6) stage of these proceedings.
when evaluating a motion to dismiss, the court may consider
only the complaint and documents incorporated into it.
Braun v. Maynard. 652 F.3d 557, 560 n.l (4th Cir.
2011); see Fed.R.Civ.P. 12(d) (if matters outside the
pleadings are presented to the court, the motion must be
treated as one for summary judgment). There are narrow
exceptions to this rule, one of which is for documents and
facts subject to judicial notice. See Tellabs . Inc. v.
Makor Issues & Rights. Ltd.. 551 U.S. 308, 323
(2007); Katyle v. Penn Nat'l Gaming, Inc.. 637
F.3d 462, 466 (4th Cir. 2011). The criminal indictment
against Linkous, his change of plea hearing, and the
sentencing hearing are all matters of public record of which
the court can take judicial notice. Sec'y of State
for Defence v. Trimble Navigation Ltd.. 484 F.3d 700,
705 (4th Cir. 2010) ("In reviewing the dismissal of a
complaint under Rule 12(b)(6), we may properly take judicial
notice of matters of public record."). Further, Clehm
relied on these criminal proceedings-specifically,
Linkous's indictment, plea of guilty, sentencing, and
agreed statement of facts-in her Second Amended Complaint.
ECF No. 59, at ¶¶ 23-26.
event, Linkous's argument fails. The imposition of
restitution "is not a civil affair; it is a criminal
penalty meant to have deterrent and rehabilitative
effects." United States v. Savoie. 985 F.2d
612, 619 (1st Cir. 1993) (citing Kelly v. Robinson.
479 U.S. 36, 49 n.10 (1986)). Linkous pled guilty to one
count of aggravated sexual abuse in violation of 18 U.S.C.
§ 2241(a) and two counts of abusive sexual contact in
violation of 18 U.S.C. § 2244(a)(1). Restitution for
these offenses is mandatory. See generally 18 U.S.C.
§ 2248. Following a separate restitution hearing, the
court ordered Linkous to pay $38, 315.32 in restitution to
Clehm. Am. J., Case No. 7:15CR000016, ECF No. 88. At the time
the amended judgment was entered in Linkous's criminal
case, Clehm had filed the instant civil action. The amended
judgment specifically accounted for any civil recovery by
Clehm. The court delayed payment of restitution until 60 days
following resolution of this civil matter and offset the
total restitution by any amount recovered by Clehm as
compensatory damages. Id.
consistent with the requirements of 18 U.S.C. §
3664(j)(2)(A), the statute governing enforcement of
restitution. Section 3664(j)(2) provides that any amount paid
to a victim under an order of restitution shall be reduced by
any amount later recovered as compensatory damages for the
same loss by the victim in any federal civil proceeding.
See also id. § 2248(b)(2) (orders of
restitution under this section shall be issued and enforced
in accordance with § 3664 in the same manner as an order
under § 3663A). Plainly, Congress contemplated these
exact circumstances- where a victim of a crime who receives
restitution later files a civil action-and put appropriate
procedures in place to ensure the victim does not receive a
double recovery for the same loss through both a restitution
order and a civil judgment. The order of restitution
previously entered in Linkous's criminal case does not
bar this civil claim. See, e.g.. Doe v. Hesketh. 828
F.3d 159 (3d Cir. 2016) (holding victim could bring civil
claim under 18 U.S.C. § 2255 for the violation of a
predicate statute even where victim previously received
criminal restitution for the same violation of that statute
for her purported full damages, subject to the offset under
§ 3664(j)(2)); see also United States v.
Louper-Morris. 672 F.3d 539 (8th Cir. 2012) (court did
not improperly award restitution to K-Mart despite the fact
it was receiving compensation through civil settlement, where
restitution was mandatory and K-Mart had yet to receive any
payments in satisfaction of civil judgment, thus there was no
double recovery). Accordingly, Linkous's motion to
dismiss will be denied.
does not appear to contest liability as to Count II,
can he. Section 3664(/) of Title 18 of the United States Code
provides that a "conviction for an offense involving the
act giving rise to an order of restitution shall estop the
defendant from denying the essential allegations of that
offense in any subsequent Federal civil proceeding or State
civil proceeding, to the extent consistent with State law,
brought by the victim." Linkous's plea of guilty and
conviction for abusive sexual contact of Clehm, in violation
of 18 U.S.C. § 2244(a)(1), estops him from denying
liability as to assault and battery of Clehm ...