CARL D. GORDON
JEFFREY B. KISER, ET AL.
THE CIRCUIT COURT OF WISE COUNTY Chadwick S. Dotson, Judge
PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey,
McCullough, JJ., and Lacy, S.JJ.
ELIZABETH B. LACY SENIOR JUSTICE.
appeal we consider whether the circuit court erred in denying
a motion for nonsuit, prospectively denying an inmate in
forma pauperis status pursuant to Code § 8.01-692,
and imposing a pre-service review with possible summary
dismissal on the inmate's future filings.
Gordon, an inmate at Red Onion State Prison, filed a
complaint seeking injunctive relief to protect him from
alleged unsanitary dental treatment by the prison's
dental assistant. The circuit court granted Gordon in
forma pauperis status on September 8, 2017. A summons
and copy of the complaint were sent to the defendants, Prison
Warden Jeffrey B. Kiser, Assistant Warden J. Artrip, and N.
H. Scott, Deputy Director of Administration, Virginia
Department of Corrections (collectively "the
Warden") and a hearing was set for November 1, 2017.
October 10, 2017, the Warden filed a demurrer, plea of
sovereign immunity and motion to dismiss. In addition to
asserting that the Warden was entitled to sovereign immunity,
the Warden argued that Gordon's complaint failed to state
a claim upon which relief could be granted, and that, in
dismissing the complaint, the circuit court should include
"an express finding" that the dismissal counted as
a "strike" for purposes of Code § 8.01-692,
which denies in forma pauperis status to prisoners
who have had at least three cases dismissed for being
frivolous, malicious or for failure to state a claim. The
Warden also asked that the circuit court order that any
future complaint Gordon files be subject to pre-service
review and possible summary dismissal.
filed a motion for temporary injunction on October 17. On
October 23, he filed a motion for nonsuit and for a hearing
on his motion. He also asked if the circuit court denied his
nonsuit motion, that it grant an extension of 30 days from
the date of denial so that Gordon could file a response to
the Warden's demurrer, plea of sovereign immunity and
motion to dismiss.
hearing was held on November 1, but the circuit court entered
an order on that date in which it granted the Warden's
motion to dismiss, holding that Gordon failed to state a
claim for injunctive relief because it was "merely
speculative" and did not show irreparable harm and the
lack of an adequate remedy at law. The circuit court also
held that the dismissal in the present action constituted the
fifth "strike" for purposes of Code § 8.01-692
and stated that the court "shall deny in forma
pauperis status" to Gordon, unless in the future he
could show that he was "'in imminent danger of
serious physical injury at the time of filing his motion for
judgment or the court determines that it would be manifest
injustice to deny in forma pauperis
status.'" The circuit court also reviewed a number
of cases filed by Gordon and concluded that
"[c]onsidering the frequent nature of this
litigant's filings, as well as the ultimate disposition
of those pleadings," a screening requirement of
complaints allowing a pre-service, summary dismissal
"would be appropriate in further claims filed by
[Gordon] in this Court." The circuit court did not
address Gordon's motions for a nonsuit or extension of
time to respond to the Warden's motions. We granted
Gordon's timely filed petition for appeal in this
11 assignments of error fall into four categories: (1) error
in denying Gordon's motion for nonsuit and holding that
the complaint failed to state a claim and was frivolous; (2)
error in imposing pre-service review with potential summary
dismissal of future complaints filed by Gordon; (3) error in
assessing "strikes" for purposes of Code §
8.01-692; and (4) error in failing to grant Gordon an
extension of time to reply to the Warden's demurrer, plea
of sovereign immunity and motion to dismiss. We will address
these in order.
Motion for Nonsuit
general rule in Virginia is that a plaintiff may take one
nonsuit "as a matter of right" unless a motion to
strike has been sustained, the jury has retired or "the
action has been submitted to the court for decision."
INOVA Health Care Servs. v. Kebaish, 284 Va. 336,
344 (2012); Code § 8.01-380(A). Gordon argues that in
this case the matter had not been submitted to the court for
decision at the time he filed his motion for nonsuit. We
action is submitted to the court for decision when "the
parties, by counsel, . . . have both yielded the
issues to the court for consideration and decision."
Transcon. Ins. Co. v. RBMW, Inc., 262 Va. 502, 514
(2001) (emphasis in original) (citing Moore v.
Moore, 218 Va. 790, 795 (1978)). Citing
Anheuser-Busch Cos. v. Cantrell, 289 Va. 318, 319
(2015) and Wells v. Lorcom House Condominiums'
Council of Co-Owners, 237 Va. 247, 252 (1989), the
Warden argues that his demurrer and motion to dismiss are
dispositive motions for purposes of submitting the case to
the court for disposition under Code § 8.01-380(A) and
were filed before Gordon filed his motion for nonsuit.
Therefore, the Warden concludes, Gordon was not entitled to
take a nonsuit.
cases relied upon by the Warden, the motions at issue had
been briefed and argued by both parties and "[n]either
the parties nor the court anticipated any further
proceedings," such as briefing and argument.
Anheuser-Busch Cos., 289 Va. at 319. Therefore,
nothing further was necessary to submit the case to the court
for disposition. Here, in addition to a November 1 hearing
date, Gordon had not yielded the issues to the court for
consideration because he specifically requested additional
time to respond to the Warden's motions.
on these facts, we hold that because both parties had not
submitted the issues to the circuit court for decision, the
circuit court erred in denying Gordon's motion for a
nonsuit. Accordingly, we will vacate that portion of the
circuit court's judgment holding that the complaint was
speculative and failed to establish irreparable harm and the
lack of an adequate remedy at law.
argues that if this Court concludes, as we have, that the
circuit court erred in failing to grant his motion for
nonsuit, we need not review the circuit court's judgment
imposing prospective denial of in forma pauperis
status or the pre-service review with potential summary
dismissal of any future complaints because the circuit court
would not have reached these issues had it granted the
nonsuit. We disagree.
have statutory and inherent power to "protect [their]
jurisdiction from repetitious and harassing conduct that
abuses the judicial process." Adkins v. CP/IPERS
Arlington Hotel LLC, 293 Va. 446, 452-53 (2017); Code
§ 8.01-271.1 (providing that courts may sanction a
lawyer or litigant for filing pleadings that are not
well-grounded in fact and law or interposed to harass, cause
unnecessary delay or needlessly increase litigation costs). A
circuit court retains jurisdiction to consider a motion for
sanctions of the type requested by the Warden either before
it rules on the request for nonsuit or if it rules within 21
days of entry of a final order in the case. Williamsburg
Peking Corp. v. Xianchin Kong, 270 Va. 350, 355 (2005);
see also Johnson v. Woodard, 281 Va. 403, 409 (2011)
(demonstrating that a circuit court may consider and rule on
a motion for sanctions filed after entry of a nonsuit order).
Here, even if the circuit court had granted Gordon's
motion for nonsuit, it would have retained jurisdiction to
rule on the sanctions request for 21 days after entry of the
nonsuit order. Because the circuit court imposed the
sanctions contemporaneously with entry of its judgment order,
the rulings were timely. Therefore, we reject Gordon's
suggestion that we need not review the circuit court's
ruling on the sanctions request.
Pre-Service Review and Summary Dismissal
Adkins, we reaffirmed a court's inherent
authority to protect its jurisdiction from harassing conduct
that abuses the judicial process, while acknowledging that
restricting the ability of a litigant to access the court
system is a drastic remedy that should be used sparingly. 293
Va. at 452. In that case, we adopted the four-factor test
established in Cromer v. Kraft Foods North America,
Inc.,390 F.3d 812 (4th Cir. 2004), in deciding whether
such a remedy was appropriate. The four factors to be
considered are (1) the party's history of litigation and
whether the party has filed vexatious, harassing or
duplicative lawsuits; (2) whether the party had a good faith
basis for pursuing the litigation or simply intended to
harass; (3) the extent of the burden on the courts and
parties; and (4) the adequacy of alternative sanctions.
Adkins, 293 Va. at 452. After applying these
factors, we ...