Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gordon v. Kiser

Supreme Court of Virginia

December 6, 2018

CARL D. GORDON
v.
JEFFREY B. KISER, ET AL.

          FROM THE CIRCUIT COURT OF WISE COUNTY Chadwick S. Dotson, Judge

          PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, McCullough, JJ., and Lacy, S.JJ.

          OPINION

          ELIZABETH B. LACY SENIOR JUSTICE.

         In this 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.

         FACTS AND PROCEEDINGS

         Carl D. 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.

         On 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.

         Gordon 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.

         No 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 Court.[1]

         ANALYSIS

         Gordon's 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.

         1. Motion for Nonsuit

         The 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 agree.

         An 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.

         In the 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.

         Based 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.[2]

         Gordon 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.

         Courts 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.

         2. Pre-Service Review and Summary Dismissal

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.