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Fuller v. Carilion Clinic

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

October 29, 2018

ROGER S. FULLER, JR., Plaintiff,
v.
CARILION CLINIC, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART CARILION CLINIC'S MOTION TO DISMISS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         This civil action arises out of the arrest of an employee by an officer of his employer's private police department. The plaintiff, Roger S. Fuller, Jr. (“Fuller”), filed a complaint in the United States District Court for the Western District of Virginia, Roanoke Division, on December 20, 2017. ECF No. 1. The complaint alleges claims arising under 42 U.S.C. § 1983 and supplemental state claims under 28 U.S.C. § 1367. ECF No. 1.

         The defendant, Carilion Clinic, filed a motion to dismiss the complaint (ECF No. 3), and the plaintiff then filed an amended complaint. ECF No. 10. The motion to dismiss the original complaint was then denied. ECF No. 21. The amended complaint asserts that the plaintiff was employed by Carilion Clinic as a janitor and that he was at work when he found three burned, wooden stick matches and a signed piece of paper near the Carilion Clinic dentistry lab. ECF No. 10 at 4. The amended complaint asserts that the plaintiff notified the receptionist of what he had found, and that the Carilion police then arrived to investigate the incident. ECF No. 10 at 4. The Carilion Police and Security Services Department is a private police department maintained by Carilion Clinic and authorized by the Virginia General Assembly (see Va. Code Ann. § 9.1-101). ECF No. 10 at 2.

         The amended complaint then alleges that the Carilion police came to the plaintiff's residence the following morning and staged a “surround and call out, ” a swat-style arrest tactic, before entering the plaintiff's home and taking him to the Carilion police station for questioning. ECF No. 10 at 5-6. Next, the amended complaint asserts that the Carilion police coerced the plaintiff into confessing to lighting the matches. ECF No. 10 at 6-7. Lastly, the amended complaint alleges that the plaintiff was terminated from his employment at Carilion Clinic after he refused to meet with the Carilion police without counsel present. ECF No. 10 at 8. Count I of the amended complaint is a claim for the unreasonable seizure of the plaintiff's person by the Carilion police. ECF No. 10 at 8. Count II is a claim for the unreasonable seizure of the plaintiff's person by Carilion Clinic. ECF No. 10 at 12. Count III is a claim for false imprisonment. ECF No. 10 at 14. Count IV is a claim for intentional infliction of emotional distress. ECF No. 10 at 17.

         The defendant filed a motion to dismiss the amended complaint for failure to state a claim. ECF No. 13. In the defendant's memorandum in support of the motion to dismiss the amended complaint, the defendant argues that Counts I and II of the amended complaint fail to state a claim because Carilion Clinic has no liability under 42 U.S.C. § 1983 for the acts of its employed police officers. ECF No. 13 at 5. First, the defendant argues that respondeat superior is not a basis for § 1983 liability. ECF No. 13 at 5. The defendant points out that the United States Court of Appeals for the Fourth Circuit has held that a private corporation cannot be held liable under § 1983 for the acts of its private police solely on a theory of respondeat superior. ECF No. 13 at 6 (citing Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999)).

         Second, the defendant argues that the plaintiff has not alleged a specific written policy or custom that led to the actions by the Carilion police. ECF No. 13 at 6. The Supreme Court has held that for a local government to be held liable under § 1983, the injury must be the result of a specific policy or custom of that government. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The Fourth Circuit has held that Monell applies to private corporations that employ police officers. Austin, 195 F.3d at 728. Thus, the defendant contends that in order to survive a motion to dismiss, the amended complaint would need to allege a specific policy or custom of Carilion Clinic's that resulted in the plaintiff's injury. ECF No. 13 at 6.

         Third, the defendant argues that the plaintiff has not pled a state agency relationship. ECF No. 13 at 7. The defendant asserts that in order for § 1983 liability to apply, the plaintiff here must show that Carilion Clinic's police were state actors. ECF No. 13 at 7. The defendant points out that under United States v. Day, 591 F.3d 679 (4th Cir. 2010), there is a two-factor test to determine if a state agency relationship exists. ECF No. 13 at 8. The Court is to consider “(1) ‘whether the [g]overnment knew of and acquiesced in the private' individual's challenged conduct; and (2) ‘whether the private individual intended to assist law enforcement or had some other independent motivation.'” Day, 591 F.3d at 683 (citations omitted). Because the plaintiff has not alleged any such relationship, the defendant argues that Counts I and II of the amended complaint must be dismissed. ECF No. 13 at 8-9.

         Further, the defendant argues that Counts III and IV of the amended complaint are claims that arise under Virginia state law, and, as such, if the court dismisses Counts I and II, it should also dismiss Counts III and IV because there will be no federal claims pending. ECF No. 13 at 9 (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before trial . . . the state claims should be dismissed as well.”)).

         The plaintiff filed a response in opposition to the defendant's motion to dismiss the amended complaint. ECF No. 16. In response, the plaintiff first argues that the amended complaint does not rely solely on a theory of respondeat superior to establish § 1983 liability. ECF No. 16 at 2. The plaintiff contends that Carilion Clinic can incur § 1983 liability for the decision to arrest Fuller. ECF No. 16 at 2. The plaintiff points out that the Supreme Court has held that a single decision by a policymaking official can be the basis of liability. ECF No. 16 at 2; see Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (“[M]unicipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.”). The plaintiff alleges that here, Chief Lugar, the Chief of the Carilion Police, made the decision to arrest Fuller. ECF No. 16 at 3.

         Second, the plaintiff argues that Day is not the correct test to determine if the Carilion Clinic acted as a state actor. ECF No. 16 at 4. The plaintiff contends that the instant case is distinguishable from Day because “there is no third party who is aiding or assisting the government authority by asserting the police power. Carilion is the police power.” ECF No. 16 at 5 (emphasis in original). Instead, the plaintiff contends that the Court should apply the “public function” test under Rodriguez v. Smithfield Packing Co., Inc., 338 F.3d 348 (4th Cir. 2003). ECF No. 16 at 4. In Rodriguez, the Fourth Circuit held that a private party is subject to § 1983 when they are acting under the government's conferral of a power that is traditionally exclusive to the state, and that the power to arrest is “the function most commonly associated with the police.” Rodriguez, 338 F.3d at 355 (citation omitted). Thus, the plaintiff contends that, under Rodriguez, Carilion Clinic is a state actor because it has the power to arrest. ECF No. 16 at 5.

         The plaintiff does not dispute that if Counts I and II are dismissed, Counts III and IV should also be dismissed. ECF No. 16 at 5.

         The defendant filed a reply to the plaintiff's response in opposition. ECF No. 17. The defendant argues that, although Pembaur allowed for liability to be based on a single decision of a policymaking official, Fuller has not alleged that Carilion Clinic created the relevant policy or that Chief Lugar had policymaking authority. ECF No. 17 at 1. Thus, the defendant contends that Counts I and II of the amended complaint fail to state a claim because they do not allege sufficient facts to establish that Carilion Clinic is liable under § 1983 for Fuller's arrest. ECF No. 17 at 4.

         II. A ...


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