United States District Court, W.D. Virginia, Roanoke Division
ROGER S. FULLER, JR., Plaintiff,
CARILION CLINIC, Defendant.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART CARILION CLINIC'S MOTION TO
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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.
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.”)).
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.
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.
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.
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