Novak v. Harper et al, No. 3:2014cv00376 - Document 32 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 09/17/2014. (tjoh, )
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IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA CLERK U.S. DISTRICT COURT Richmond Division RICHMOND. VA WENDY NOVAK, Plaintiff, v. Civil Action No. STEPHEN T. HARPER, 3:14cv376 in His Capacity As Administrator of the Estate of JERMAINE BURTON, et al., Defendants. MEMORANDUM OPINION This Luke's RULE reasons VII matter set will be is before 12(b)(1) MOTION forth herein, the TO Court DISMISS 29, 2014, Harper as Stephen T. Burton, Onzie law Omara alleging violations. complaint Wendy be No. 9). Onzie For the granted and Count Novak Luke, various (Dkt. assaulted filed of and Michael No. 1). in The L. Complaint Estate Wade, facts as M 1, 21. women's of against Jermaine Henrico statutory, confined in the 2013. the a the constitutional, allege that Novak was sexually FACTS Administrator Regional Jail East on May 29, was defendant dismissed. May Sherriff the (Docket the motion will BACKGROUND On on County and common stated in the Henrico County On that day, restroom by Burton who was employed as a guard at the jail. SISI 21-24. she Jermaine At County the as Henrico time a of the Mental County assault, Health Regional Complaint, Luke's developing while and Luke was at by at the According to the "counseling with the employed Henrico stationed 58. included activities employed was relationships criminal alleges was East. duties investigating that, Worker Jail trust-based Luke inmates, Jail." at inmates, the 18. Jail, and Novak she was "engaged in an ongoing sexual relationship with Deputy Jermaine Burton." 52 6. After the the assault, misconduct and Novak informed jail was taken counseling. 5531-32. The "accused Novak to lying Ms. of Complaint . assaulted her" during that session. The Count only VII which Emotional 5576-80. role as abuse claim asserted alleges Distress . from for an alleges . and about interview that Luke otherwise and then verbally 534. against claim stemming for Luke in the Intentional the Complaint is Infliction of post-assault interview. The Complaint states that Luke's "conduct in using her a counselor to Ms. Novak reckless... outrageous to a Luke staff members suffer severe berate, after and emotional belittle, her and otherwise verbally rape was intolerable... [and distress." 55 intentional caused 76-79. and Plaintiff] Novak seeks compensatory damages in the amount of $2,000,000.00 and punitive damages in the amount of $350,000.00. 580. Luke has Jurisdiction Dismiss No. in for 11). the Rule Failure to 526 U.S. a Motion 12(b)(1) State a to (Dkt. Dismiss No. under Cir. 574, Rule Inc. 2006) 583 v. 12(b)(1) Astellas (citing 9) Claim under The challenge to subject matter Pharms., (4th both under motion Sucampo 548 filed Rule be Pharma, AG and a Lack of Motion 12(b)(6) to (Dkt. jurisdiction asserted must Ruhrgas for addressed Inc., first. F.3d 544, Marathon v. 471 Oil, Inc. (1999)). In her motion, Luke alleges that, because she and Novak are both citizens of Virginia and because the only claim against her arises under nucleus made Virginia of operative against the state fact other law with and the does not pending defendants, the share Court does common law federal a claims not have subject matter jurisdiction over the claim against her and must dismiss it. decline to based Alternatively, exercise reasons. Replied (Dkt. No. its responded matter party may file that this Court jurisdiction (Dkt. No. for 13) should policy- and Luke and the motion is ripe for disposition. LEGAL A argues supplementary Plaintiff 15), she STANDARD a motion jurisdiction under Fed. to R. dismiss Civ. P. for lack of 12(b) (1). subject If a court finds that is does not have subject matter jurisdiction over the case or controversy, it must dismiss the action. Arbaugh v. Y & H Corp., bears 546 the proper. Cir. U.S. burden 500, of 514 (2006). establishing Of that course, federal the plaintiff jurisdiction is Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th 2012). Challenges two ways. to First, subject matter jurisdiction may be made in a facial challenge to jurisdiction may be made by arguing that the complaint does not allege facts that permit the v. exercise United type of facts of federal States, 585 F.3d is raised, challenge alleged in the challenge can be made assertion of subject Id. 192 the jurisdiction. (4th court complaint are under must theory the Cir. true. 2009). that that all Second, Id. the the is Kerns If assume that jurisdiction See complaint's not true. Id. 697 F.2d 1213, 1219 (4th Cir. 1982)). In a court may consider evidence outside the pleadings. Luke raises a challenge of the first sort in this motion. 28 the U.S.C. district courts claims that United [has] §1367 courts shall have are form part of the matter 187, matter (quoting Adams v. Bain, that event, subject original related to action of which jurisdiction, jurisdiction claims in the the over action district all Constitution." "once valid jurisdiction over a federal claim, exercise supplemental jurisdiction a district it could, over other that same case or controversy under Article Thus, discretion, States have supplemental so the states that "in any civil they III of court in its additional state law claims if operative fact.'" (4th Cir. 715, and 1993) 725 arose of a ^common 985 (quoting United Mine Workers v. nucleus F.2d 168, Gibbs/ a ordinarily be from plaintiff's expected proceeding then, a common nucleus of claims to try are such 383 U.S. operative them that all in he one U.S. at 725. not satisfied and state would judicial assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Gibbs, 383 The "common nucleus of operative fact" standard is by "superficial claims claims .only Bd. 171 considered without regard to their federal or state character, Cnty of Supplemental jurisdiction exists if "the state claims... derive fact...[I]f, out White v. Cnty of Newberry, (1966)). federal they or have Of by some Ed., et the fact facts al, factual overlap" "that the in common." 100 Fed. of the federal Shavitz Appx 146, v. 150 federal and state Guilford (4th Cir 2004) (internal citations omitted) . DISCUSSION Novak's because with her it state does federal law claim not share a law claims. against common Novak's Luke must nucleus case is of in be dismissed operative federal fact court on the basis of Federal Question jurisdiction under the auspices of 28 U.S.C. §13311, because she alleges violations of her rights under the United cognizable However, for in the Constitution federal single Intentional under Virginia there is no States court claim state tort diversity because raised Infliction (Counts of of against (Dkt. jurisdiction II) is a 1. SI 80). case jurisdiction over the sole claim against Luke, count can be reached under the grant are 1983. that claim arises Because and claim against Luke does not arise under federal law, has § tort Distress this that U.S.C. Luke No. in and 42 Emotional law. I Novak's this Court only if that of supplemental jurisdiction conferred by 28 U.S.C. § 1367. "To determine this case derive whether the federal prove under each type of Keiter, Corp., 2013) . of et In Counts Count VII Stephens, al., and law 2013 U.S. II it (the Gray Dist. is & it in is required to the Complaint." Tobey Shreaves, LEXIS claims fact, Plaintiff will be claim raised in Hurts, other words, I state from a common nucleus of operative first necessary to determine what v. and 114078, a Professional *10 (E.D. Va. necessary to compare the elements federal claims) with the elements of (the pendant state law claim). 1 "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 6 1331 I. The Elements of the Federal and State Claims Count I alleges that Burton violated Novak's Eighth Amendment2 right to be free from cruel and unusual punishment when II he committed assault alleges that right to be male guards inmates. which Sheriff free to and battery Wade from cruel be placed violated the Novak's rape) . Eight Count Amendment and unusual punishment by allowing in units of the jail housing female Counts I and II were brought under 28 U.S.C. § 1983,3 itself plaintiffs confers to sue in no substantive federal court constitutional or statutory rights. 875 F. Supp. 127 L. Ed. U.S. (i.e., 1124 2d 137,144, (E.D. 114, n.3 2 "Excessive bail 114 Va. 1994) (1994) rights, for but allows of federal violations Amato v. City of (citing Albright (citing Baker v. Richmond, v. Oliver, McCollan, 443 (1979))). shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 3 "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to the District of Columbia." 42 U.S.C. §1983 7 be a statute of In order to prove a deprivation of Amendment on a from Assault (Count against I), of the Harper Novak must deprived recklessly unusual theory her punishment Constitutional (Burton's prove of Right personal that Burton right her and that rights under the Eighth to such be actions to be Free representative) intentionally free were of not or cruel and taken "in a good-faith effort to maintain or restore discipline... [but were taken] maliciously and McMillian, 503 U.S. sadistically to 1, 6-7 cause (1992). In harm." Hudson v. order to prove a deprivation of rights under the Eighth Amendment on a theory of the Constitutional Punishment II), Due to Novak must Wade "kn[ew] health and Right to Deliberate prove by be Free Cruel Indifference a preponderance of and disregard[ed] safety." from Farmer and against of the Wade Brennan, 511 (Count evidence an excessive risk to v. Unusual that [Novak's] U.S. 825, 838 (1994) . Of of course, federally jurisdiction establish those conferred under three the by person; (3) acting Medford, 119 F.3d 487 U.S. 42 U.S.C. proved, under § And, 1983, "(1) Constitution 42, if rights. elements: secured Atkins, elements, or color 1156, 1160 48 (1988)). the a of (4th establish violations to a establish plaintiff deprivation federal state Cir. also 2011) must a right of statute; law." federal (2) by Jenkins (citing West a v. v. Novak's claim against Luke is claim for Intentional Infliction order to recover a emotional proof. was on distress, a claim a of must satisfy intolerable; or 3) reckless; there 2) was the a tort v. resulting Johnson, II. emotional four conduct 276 Va. The Federal To 370 elements facts her § 1983 showing of was outrageous connection between severe." or the and 4) Supervalu, Inc. (2008). and State Claims establish establish 356, was of the wrongdoer's conduct causal distress "In infliction wrongdoer's conduct and the resulting emotional distress; the law Distress. intentional The plaintiff must show that 1) intentional state Emotional of plaintiff Virginia that Share No Factual Elements claim against Burton Harper, did, in Novak fact, must sexually assault her and thus violate her constitutional right to be free from assault under the Eighth Amendment. To establish the §1983 claim against there was Wade, Novak must Novak's safety in the jail, failed to claims indeed, that show that that Wade knew of it, evidence that the alleged Both of these sexual assault did, take place because the operative fact required to prove one's constitutional right to be violated is that an assault did in fact of to and that Wade take sufficient acts to protect Novak. require a threat the operative facts free occur. required to prove that from assault was Similarly, one a supervisor was unconstitutionally and deliberately indifferent to harm is that there truly was a risk of harm (i.e., that the for, prove establish that the Luke aware state of law a history of, risk of in this case, sexual assault.) To supervisor was a claim against intentionally acted in or potentiality Luke, such a Novak must way ordinary citizen would deem "utterly intolerable in society" and distress. The that Russo operative outrageous, that No. Harper) 1, behavior White, 241 required belittle, caused Va. for 23, Novak 27 this severe (Sup. claim Ct. are suffered M77, emotional Va. that 1991). Luke did and otherwise verbally abuse" Novak in severe 78). an a civilized unacceptable manner during their appointment Novak, has (Dkt. v. facts indeed "berate, an this that emotional distress as a and result. Proof of the assault and battery (as to and proof of deliberate indifference to a known risk of assault and battery (as to Wade) law claim because neither is need not be proved in the state an element of that claim. In her response to Luke's motion under Rule 12(b)(6), argues that related to another way, "the level whether any of the rape finder of outrageousness occurred fact in would the is fundamentally first likely Novak have place. to Put evaluate the validity of Ms. Novak's rape allegation before being able to determine whether outrageousness Luke's necessary to action support 10 rise a to claim the of level of intentional infliction of emotional distress." that, in some cases, peculiarly at 1-2. "[t]he extreme and outrageous the conduct may arise is Response from the actor's susceptible to It is true character of knowledge that the other emotional distress, by reason of some physical or mental condition or peculiarity." Restatement (Second) the assault actually occurred is not an operative fact in this case, because the whether Torts § 46 outrageousness (comment of Luke's the assault can be proven, aware in that fact The whether However, behavior does whether not turn on but rather turns on whether Luke was Novak reported the sexual assault whether or not it Luke is had occurred. question it is "berate[d], individual assault. f). presented sufficiently belittle [d], who by had and Novak's outrageous otherwise informed Luke Complaint that 111. at claim she against for Luke verbally was Whether a to abuse[d]" victim of the have assault an sexual actually occurred is not operative to this question because, at the time the interaction between Novak and Luke took place, Luke did not know whether an assault had reported one. health counselor assault whose It to claims had actually happened, only would be equally outrageous "berate" a were later patient vindicated that for a mental reporting in court Novak as a it sexual would be to "berate" one whose claims were later disproved or dropped. 11 What matters is the counselor's knowledge at the time of the actually occurred is not interaction. Additionally, an operative whether fact for sexual that assault Luke's it actions sufficient that she on interaction that its with make court. the assault did that the Novak's claims in types emotional And, establish of it action, plead on not nor is and prove distress turn is from her whether the although definitively proving place would emotional is to distress, cause not truly a victim Novak Novak must does take of proof of a plaintiff one not for "severe neither help distress adequate Luke are nor establish unfounded or necessary to case. The that severe This that Luke's of the suffered she was emotional Rather, actual Luke. such Novak easier element own. assault is proven in exaggerated, it caused severe suffered that While proving that might necessary to prove assault establishing emotional distress." of the judicial claims presented in "would ordinarily be proceeding." Gibbs, this case are not such expected to try them all 383 U.S. at 725. Rather, one would typically expect that the very different harmful acts, the causes bodies of occurring brought of law on in action and each pointing different separate for days cases to relying different between in the 12 on entirely groupings different proper different of actors, courts. facts would That be these alleged harms tangentially share commonalities such as location and victim do not establish that they share a "common nucleus of operative fact" as is required to establish supplemental federal jurisdiction under 28 U.S.C. § 1367. Id. 725. Rather, this case presents the type of "superficial factual overlap" that does not satisfy the rigorous requirements that authorize the exercise of jurisdiction under Section 1367. Shavitz 100 Fed. Appx at 150. CONCLUSION For the reasons DISMISS set forth above, Defendant Luke's MOTION TO FOR LACK OF JURISDICTION UNDER RULE 12(b)(1)(Dkt. No. 9) will be granted as to Count VII of the complaint. Count VII and thus The Luke will be dismissed from this action.4 dismissal will be without prejudice. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Date: Virginia September j l , 2014 4 ONZIE LUKE'S RULE 12(b)(6) MOTION TO DISMISS (Docket No. 11) cannot be reached because the jurisdiction. 13 Court lacks subject matter
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