Worthington v. Palmer et al, No. 3:2015cv00410 - Document 66 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. READ Opinion for complete details. Signed by District Judge Robert E. Payne on 11/24/2015. (ccol, )
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Worthington v. Palmer et al Doc. 66 IN THE UNITED STATES DISTRICT COXJRT FOR THE EASTERN DISTRICT OF VIRGINIA ' ^ ^ Richmond Division ! NOV212015 Va XAVIER WORTHINGTON, I i".' "I-!MOI '0. VA 1 '•; Plaintiff, V. Civil Action No. ROSE PALMER, BON 3:15cv410 ESQ., SECOURS - ST. MARY'S HOSPITAL, CASTLE REAL ESTATE, INC., BONITA WALLACE, JEWISH FAMILY SERVICES, MCGRATH & DANIELSON, MOTORCYCLE LAW GROUP, TWO UNKNOWN SIGNATORIES/ WITNESSES GROUP FROM MOTORCYCLE LAW TO ALLEGED WILL OF CLYDE H. SEGEAR, SARAH BETH KEUKEN, ELIZABETH C. MOOZ, TARA A. CRISINATI, DONSHEA SMITH, ESQ., HENRICO COUNTY CIRCUIT COURT JUDGE I, AND HENRICO COUNTY CIRCUIT COURT JUDGE II, Defendants. MEMORANDUM OPINION This matter is before the Court on the MOTION TO DISMISS of Defendants Motorcycle Worthington Motorcycle J. Thomas Law McGrath Group, Group t/a mistakenly ("Worthington") Law P.C. as ("McGrath, McGrath named by McGrath P.C."), & Danielson Plaintiff & Sarah Xavier Danielson K. and and Rittenberry, Dockets.Justia.com mistakenly named Worthington by ("Keuken/Rittenberry"); Lindsey Norment, one of "Two Unknown McGrath, named Keuken Beth named by Worthington as Signatories/Witnesses Group to Alleged Will of Clyde H. Thomas Sarah as from Motorcycle Law Segear" by Worthington as ("Norment"); one of and J. "Two Unknown Signatories/Witnesses from Motorcycle Law Group to Alleged Will of Clyde H. Segear" Defendants") MOTION TO DISMISS (ECF HOSPITAL, No. DISMISS (ECF 7); (ECF 13); No. TARA ("McGrath") A. (collectively, DEFENDANT No. 11) ; DEFENDANT DEFENDANTS CRISINATI, JEWISH BON FAMILY MOTION ST. SMITH'S MARY'S MOTION TO (ECF No. 15); DEFENDANT ROSE PALMER, ESQ.'S MOTIONS TO DISMISS (ECF Nos. P. (b) (1) TO (6) DISMISS PURSUANT TO FED R.S CIV. 12 McGrath SERVICES' JUDGES' SECOURS DONSHEA AND "the & 26, 27); DEFENDANT ELIZABETH C. MOOZ' S MOTION TO DISMISS No. 35); and CASTLE DEFENDANTS' MOTION TO DISMISS FED. R. CIV. P. 12 (b) (1) 12 (b) (6) & (ECF No. (ECF PURSUANT TO 43). For the reasons set forth herein, Defendants' motions will be granted. I. BACKGROUND In a assertions (sometimes Complaint and that short is on self-identified grandson of Clyde H. long on rhetoric specificity, as Segear "XW") , Xavier who ( "Segear") , and Worthington claims asserts conclusory to a the variety of claims against twelve named, and two unnamed, defendants. 2 be Those claims arise out of the following scenario, recounted from paragraphs 16 through 38 of Worthington's Complaint (ECF No. 1). The facts are recited as they are stated in the Complaint, best they can be sorted from the rather rambling, as conclusory text. On or about March 26, Mary's Hospital 2013, complaining Segear entered Bon Secours-St. "about his leg/foot." While hospitalized, Segear was evaluated on March 28 and April 2, 2013 by Dr. Durre Khan to determine whether Segear "had the capacity to make decisions for that Se gear determined himself and his "retained the wife." Dr. Khan capacity to make decisions." For reasons Complaint, Circuit in and under circumstances "April/May, of Court 2013," County, Henrico Bon not recited in the filed, in the Petition for Secours Virginia, a Appointment of Guardian and Conservator for Segear. that result, (unnamed) To secure it is alleged that Bon Secours and its employees administered Prednisone induce to symptoms of incapacity in Segear. Mooz, a lawyer, li tern for Segear. incapacitated," was appointed by Judge I as guardian ad Mooz interviewed Segear "to have him deemed notwithstanding awareness evaluations made by Dr. Khan. manager at Bon Secours, and Crisinati, of the two Mooz worked with Smith, 3 previous a case a nurse practitioner at Bon Secours, to arrange a follow-up evaluation of Segear that, for unarticulated reasons, 14, 2013, after Prednisone, the Crisinati is alleged to be illegal. date on prepared which an Segear had evaluation On June received reportedly concluding that Segear "did not retain the capacity to make decisions." Palmer, a lawyer, who was appointed by Judge I to be Segear's "Guardian and Conservator," presented the Crisinati report to Judge I "so that she could be appointed Guardian and Conservator." At the time that Judge I held that Segear was incapacitated and appointed Palmer, he allegedly knew that the Petition and the diagnosis were false. There are no facts alleged to support that conclusory assertion. Segear died on July 14, 2013, apparently leaving a will that was authored by employees of the law firm McGrath, P.O., and that was notarized by Keuken (whose correct name is Sarah Rittenberry), an employee of McGrath, P.C.^ Jewish Family Services is said to have falsely claimed "rights over [Segear's] bank accounts" and is alleged somehow to have depleted them. employees), Castle Realty, Wallace (one of that firm's and Palmer are alleged to have illegally sold ^ Worthington pled that Keuken/Rittenberry is employed as a clerk of court. (Compl. SI 9). There is no factual support for that conclusion and Worthington no longer appears to take that view of her employment. Segear's properties and retained the profits from the sale. No facts are offered to support those conclusions. According to the Complaint, Palmer at one time represented to the Circuit Court of the City of Richmond that Segear had died intestate. 2 It is apparently Worthington rests his central thesis: intestate and that, under the on that ground that that Segear actually died Virginia law of intestate succession, Worthington is entitled to "2/3 of Clyde H. Segear's estate." From this string of conclusory assertions, Worthington tries to fashion several legal claims. Worthington's claims are paragraph in his Complaint. not delineated by count, In paragraph 4 0, but by he asserts that Defendants deprived Worthington, Segear, and Segear's wife: of their property and property rights by accelerating and causing the death of Clyde H. Segear, and generating a false diagnosis of incapacity/dementia through the unlawful use of Prednisone, to have Clyde H. Segear declared incapacitated/demented, all under color of state law and use of the courts of Virginia, in violation of 42 U.S.C. Sec. 1983 and the First and Fourteenth Amendments. In addition, paragraph 40 alleges that all defendants conspired to achieve the alleged foregoing deprivation. In paragraph 41, Worthington alleges that the defendants deprived him: 2 That, says Worthington, occurred when Palmer filed an affidavit in "Richmond Probate Court." (Compl. <JI 31). 5 of his First and Fourteenth Amendment rights to Companionship of his grandparents, and particularly his grandfather, Clyde H. Segear, by creating and maintaining false and inaccurate records that declared Clyde H. Segear incapacitated and demented for the sole purpose of unlawfully taking the property and property rights of Plaintiff "XW", and to not be deprived of companionship of his grandfather and his property and property rights without Due Process of law. Here too, Worthington alleges that the defendants conspired with each other to effectuate those deprivations. In paragraph 42, Worthington alleges that the defendants deprived him of his Fourteenth Amendment Due Process and Equal Protection rights "in the same manner as described in paragraph #41." This paragraph too has a generalized conspiracy assertion. Worthington also asserts two state law claims. In paragraph 43 he alleges that each of the defendants committed medical malpractice and conspired to do so. In paragraph 44 he alleges that each of the defendants caused him "Intentional Infliction of Emotional Worthington seeks injunctive relief, (Compl. A-I) . both Distress" and compensatory declaratory relief, conspired and to punitive do so. damages, and attorneys' fees. All Defendants pursuant to Fed. have timely filed R. Civ. P. 12(b) (6), Motions to Dismiss claiming that Worthington has failed to state any claim upon which relief can be granted. (ECF Nos. 7, 11, 13, 15, 26, Palmer 43). and Mooz have additionally filed motions to dismiss on grounds of insufficient service of process, pursuant to Fed. Nos. 27, 35). Civ. P. 12 (b) (5). Defendants Jewish Family Services, Family Services"), same person, R. Judges I and II "Judge Yoffy"), Inc. (ECF ("Jewish (later discovered to be the Bon Secours - St. Mary's Hospital ("Bon Secours"), Crisinati, Donshea Smith ("Smith"), Castle Real Estate, also Inc. ("Castle"), filed motions to and Bonita dismiss on the Wallace ("Wallace") ground have that Worthington lacks standing to pursue several of his claims. (ECF Nos. 11, 13, 15, 43). II. DISCUSSION A. Standard of Review As a threshold matter, the recognizes Court that Worthington's pro se status entitles his pleadings to a liberal construction. (2007) See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 ( citations omitted) ; Gordon v. Leeke, 57 4 F. 2d 114 7, 1151 (4th Cir. 1978). Nevertheless, recognize Rule B's vision for "[e] ven pro se plaintiffs must 'a system of simplified pleadings that give notice of the general claim asserted, allow for the preparation issues of a basic defense, 7 narrow the to be litigated, and provide claims.'" Sewraz v. Aug. 26, 2008) mean Guice, (quoting (S.D.N.Y. 1972)). not a means that for quick dispositions 2008 WL 3926443, Prezzi v. Berzak, at 57 sham (E.D. Va. 149, *2 of 151 F.R.D. The requirement of liberal construction "does the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court." (D.S.C. 901 July 16, F.2d 387 2009) (4th Skelton v. EPA, (citing Weller v. Cir. 1990)). Ashcroft conclusory, v. Iqbal, factually 556 Dept. Finally, standards set by Bell Atlantic v. and 2009 WL 2191981, at *2 the Twombly, U.S. 662 unsupported of Soc. Servs., basic pleading 550 U.S. (2009) claims 544 that apply to (2007) foreclose pro se litigants. 1. All Fed. R. Civ. P. 12(b) (6) Defendants have Fed. R. Civ. P. 12(b) (6) filed motions to for failure to state a claim upon which relief can be granted. dismiss, to dismiss pursuant To survive a Rule 12 (b) (6) motion to a complaint must "provide enough facts to state a claim that is plausible on its Co., 551 F. 3d 218, U.S. at 555). "A 222 face." Robinson v. (4th Cir. claim has 2009) facial Am. Honda Motor (quoting Twombly, plausibility when 550 the plaintiff pleads factual content that allows the court to draw the reasonable inference misconduct alleged." that Iqbal, the defendant 556 U.S. 8 at is 678 liable for the (citing Twombly, 550 U.S. at A 556). court "will accept the pleader's description of what happened ... along with any conclusions that can be reasonably conclusory allegations pleaded facts." Practice and Dominion 2014} . drawn therefrom," encompassing Charles A. Wright Procedure § Sec. Co., 1357 L.L.C., but the & WL legal not effects Arthur R. Miller, (3d ed. 2014 "need 1998); 1415095, accept of Federal Chamblee v. at *4 the (E. D. Old Va. "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b} (6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic conduct a recitation of context-specific well-pleaded entitlement elements analysis to allegations factual to the relief." Id. In of a claim and to determine plausibly considering whether the suggest an a to motion dismiss, the court may "properly take judicial notice of matters of public record." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). B. Claims Against Judge Yoffy Judge Yoffy argues that all of Worthington's constitutional and state law claims against him must fail because he enjoys absolute judicial immunity. (Def. Judges' Mem. of Law in Supp. of (ECF Mot. to Dismiss, at 5 correct. 9 No. 14)). That is clearly It is well-settled that suits judges are absolutely immune from for damages arising out of their Pulliam v. Allen, 466 U.S. 522, York State Unified Court Sys., 2011) ("[T]he solely on claims 543 442 against the (1984); F. Hence, barred by the the claims doctrine judge enjoys absolute of judicial 588 Defendants New (2d Cir. are judges against See McCluskey v. App'x 586, State judicial acts performed by capacity. judicial actions. in their Chief Judge based judicial Lippman immunity."). are Moreover, a judicial immunity for actions within his judicial capacity even if his actions are allegedly in error or unconstitutional. 1985) . A Chu v. judge acts Griffith, within his 771 F.2d 79, judicial 81 (4th Cir. capacity when the challenged act is "a function normally performed by a judge" and the parties "dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978). "Judicial judge engaged taken in the immunity in can be nonjudicial judge's overcome actions--that judicial capacity'; complete lack of jurisdiction." 141, 11-12 145 (4th Cir. (1991)); 2013) only (2) Doe, (quoting Mireles v. Waco, see also Stump, 435 U.S. at 356 (1) the 'actions is, or Rodriguez v. where: not there was a 54 9 F. App' x 502 U.S. 9, (noting that a judge is stripped of immunity only when he acts "in the clear absence of acted all without jurisdiction.") . jurisdiction, Even where "the 10 scope a of judge may have the judge's jurisdiction must be construed broadly where the immunity of the judge." Stump, 435 U.S. Court clearly has indicated that "[a] issue is the at 356. The Supreme judge will not be deprived of immunity because the action he took was in error, maliciously, 357. recognized that is Id. or was in excess of his authority." Similarly, a was done at 356- sister court within the Fourth Circuit has judicial immunity applies "even when the judge accused of acting maliciously and corruptly ... 'not protection or benefit of a malicious or corrupt judge, for the but for the benefit of the public, whose interest it is that the judges should be at liberty independence and without Hutchinson, to exercise fear 2010 WL 35215 64, their functions of consequences.'" at *7 ( S. D. W. with Broessel v. Va. Aug. 12, 2010) (internal citations omitted). Here, Worthington Judge Yoffy Stump, 435 U.S. clear that entirely of "dealt that the allege clear in absence normally at 362. the performed judge in the Complaint of that jurisdiction." because it is entirely contested actions with might not Nor could he, the "function[s] 435 U.S. Complaint "in at 356. both Worthington Stump, acted does his by by Judge a Yoffy judge," judicial are and capacity." There are no facts to be found in the allow the Court to plausibly infer that Judge Yoffy's decision to appoint a guardian for Segear, and the subsequent decision not to rescind 11 that guardianship, were matters outside Judge Yoffy' s jurisdiction as a Circuit Court judge. Worthington "abdicated his argues in his Response judicial authority, that Judge Yoffy issued pronouncements based on this fraud and, therefore, was lacking jurisdiction[.]" No. 36, at 3). (ECF Worthington also repeats his allegations that Judge Yoffy "knew that a fraudulent document was presented to the court" and also adds that "his failure to recuse/disqualify himself [] divested him of jurisdiction." these are conclusory allegations not credit only remedy, these 8. Accordingly, the Court simply unsupported allegations. Worthington's if he is dissatisfied with Judge Yoffy's decisions, was to have appealed those decisions in state court. do that. However, that are entirely unsupported by specific allegations of fact. does Id. at Therefore, He did not all of Worthington's claims against Judge Yoffy will be dismissed. C. Claims in Paragraph 40 In paragraph 40 of the Complaint, Defendants "conspired to, Clyde H. and did, Segear and Alice B. property and property Worthington alleges that deprive Plaintiff Segear ["the Se gears"] , rights ... in violation of 1983 and the First and Fourteenth Amendments." 42 'XW', and of their U.S. C. Sec. This paragraph, which the Court construes as a due process claim, fails to state a claim under Section 1983 because, 12 for the reasons discussed below, Worthington has not plausibly alleged that Defendants Because Worthington fails to acted under color of state law. allege a cognizable claim under § 1983, Worthington's conspiracy claims under § 1983 must fail as well. Furthermore, to the extent that Worthington attempts to bring a constitutional claim on the behalf of Mr. and Mrs. Segear, he lacks standing to do so. Section rights,' 1983 "'is not itself a source of substantive but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Amato v. City of Richmond, 875 F. Supp. 1124, 1132 (E.D. Va. 1994) U.S. 266, 144 n. 3 271 (1994) (1979))). (citing Albright v. Oliver, 510 (quoting Baker v. McCollan, To state a claim under § 443 U.S. 1983, 137, a plaintiff must allege, through specific factual assertions, that: (1) "the defendant by the (2) "the has deprived him of a right secured Constitution and the laws of the United States"; and defendant deprived him of this constitutional right under color of any statute, ordinance, State or Territory." 150 (1970). regulation, custom, or usage, of any Adickes v. S.H. Kress & Co., 398 U.S. 144, Therefore, "the first step in any such claim is to identify the specific constitutional right allegedly infringed." Id. Where a plaintiff fails to plead a cognizable constitutional violation, he has no recourse under § 1983. 13 Furthermore, purposes for private persons only act "under color of law" a participants of in Section joint 1983 activity claim with when they are willful Id. state officials. at 152. This means that a plaintiff has no recourse under Section 1983 for private wrongful." 2001) conduct, Mentavlos v. "no matter Anderson, (citation omitted). how discriminatory 24 9 F. 3d 301, Moreover, 310 or (4th Cir. "private misuse of a state statute does not describe conduct that can be attributed to the State." In Lugar v. particular, retained, Edmondson Oil Co., it is well-settled court-appointed, or a under color of state law." *3 (D.S.C. Apr. 10, 2007) "an 922, attorney, public defender, Knox, between state was done whether not act 2007 WL 1146344, and a at in a naked assertion of conspiracy private parties," must allege that Defendants acted jointly in concert, act does (1982). conspiracy under Section 1983, through "more than overt 941 (collecting cases). plaintiff, actor that Lilly v. To successfully plead a a 457 U.S. furtherance of the plausibly and that some conspiracy that resulted in the plaintiff's deprivation of some constitutional right. (E.D. Shooting Point, LLC v. Cumming, 243 F. Supp. 2d 536, 537 Va. 2003). That is, a plaintiff must plausibly allege deprivation of a constitutional right in order to state a claim for civil conspiracy under cause of action is the § 1983, because "' [t] he gist of the deprivation 14 and not the conspiracy.'" Id. (quoting Lesser v. Braniff Airways, Inc., 518 F.2d 538, 540 n.2 (7th Cir. Importantly, 1975)). something more than a Id. at 421-23. Worthington's Claims on His Own Behalf Because the protection plaintiff must make naked assertion of conspiracy between a state actor and private parties." 1. "[a] of First Amendment "property and is not the proper source for property rights," the Court construes Worthington's Paragraph 40 claims on his own behalf as a Due Process Worthington claim, has Defendants brought failed to acted "under under show color Section that any state of However, 1983. of law." the remaining Therefore, the claims in Paragraph 40 will be dismissed with prejudice as to all Defendants. First addressing Worthington's claims against the McGrath Defendants, it is clear that McGrath, Norment, and McGrath, P.C. are private actors. No allegations suggest otherwise. No authority holds otherwise. Nor did the status of Keuken/Rittenberry as a notary public employed by McGrath, P.C. transform her actions, or those of any other defendants, state." into Filarsky v. conduct Delia, (internal citation omitted). the Fourth privately Circuit employed has notary "fairly 132 S. attributable Ct. 1657, to 1661 the (2012) Although it does not appear that specifically public 15 is addressed automatically whether a a "state actor" for purposes of § 1983, the Court finds persuasive the reasoning of the district court in Williams v. Nat'l Notary Assoc.-Florida, 2008 WL 8122804 (M.D. Fla. Nov. 4, 2008). As the court in Williams observed, a notary public is not a state official. And, although the Code of Virginia refers in passing to the "office" of notary public, the statute as a whole makes clear that a notary public merely holds a "commission." Code Ann. §§ 47.1-21 et seg. Also, the "statutory powers and duties given to notaries public are ministerial: administer oaths," document is a true the Va. power to certify that copy thereof, to the power to a copy of a certify affidavits or depositions of witnesses, and to perform verifications of fact. Williams, 2008 WL 8122804, at *4; Va. Code Ann. § 47.1-12. Such ministerial actions "are not imbued with the imprimatur of the State, as are those of public officials." Id. Moreover, "the statute recognizes the widely known fact that, [as here,] notaries public are often employed by private entities." see also Va. Code Ann. § 47.1-27 notary's employer). 1^/ (detailing the liability of a As explained in Williams, the employment "of many notaries public by nongovernmental entities strongly suggest[s] that a notary public is not a public official, as public officials are typically employed by the State in an official capacity." addressed the Id. issue have Other district reached this 16 same courts to have conclusion. S^ Sanders v. the Cty. of Bradford, 2014 WL 10294769, at *5 n.6 (M.D. Pa. Nov. 21, 2014); Hall v. Tallie, 2014 WL 9311958, at *8 (N.D. Ala. Mar. 10, 2014); Noonan v. Allen, 2012 WL 6726711, at *1 (D. Md. Dec. 21, 2012). Here, Keuken/Rittenberry acted in her capacity as an employee of private actor McGrath, P.C., when she notarized Segear's will, and that action is not fairly attributable to the state." Thus, McGrath, Worthington's conclusory allegations that Norment, and Keuken/Rittenberry conspired to concoct a "fraudulent Last Will and Testament" fail to reveal any actions taken by any state actor under color of state law, as is required to state a claim under § 1983. Moreover, although Worthington McGrath repeatedly asserts that the defendants conspired with Judge Yoffy, he fails to allege any facts from which the occurred. Court There could is infer no that plausible any conspiracy predicate that actually supports Worthington's conclusory conspiracy claim in paragraph 40. Second, with respect Castle Real Estate, Inc., to Defendants Bonita Wallace and ("the Castle Defendants"), Worthington has failed to provide any specific facts showing that the Castle Defendants were involved with the state court proceedings in any way. Indeed, the sole brief mention of the Castle Defendants in the Complaint reveals only that Worthington spoke by telephone with Wallace, a real estate agent, 17 and that Wallace provided Worthington's contact information to Palmer. Worthington has (Compl. 55 25-26). failed to allege that the Castle Defendants acted "under color of state law." Worthington's reply brief contends that the Castle Defendants must have conspired with Palmer because the two had offices in the therefore... conspired taking with same thereafter Defendants Rittenberry.(ECF building, No. to Judge 57, and "they/ the unlawful Notary Keuken- consummate Yoffy f that and 14). Fanciful, conclusory allegations of that sort simply do not support the existence of any conspiracy. Nor do they in any way suffice to make a plausible case that the McGrath defendants were somehow state actors. Thus, the Complaint fails to state a claim against the McGrath defendants both because of the absence of a plausible theory of state action and because it fails to meet the requirements of Twombly and Iqbal as to the conspiracy aspect of paragraph 40. ^ Because the Court finds that Keuken/Rittenberry is not a state actor, the Court devotes no further discussion to Worthington's arguments that the remaining defendants' alleged conspiracy with her renders their conduct state action within the meaning of § 1983, However, even if Keuken/Rittenberry were a state actor, the Complaint provides no factual basis to support the conclusory argument that any defendants either in, or outside of, McGrath, P.C. entered into any agreement with Keuken/Rittenberry. 18 Similarly, Worthington offers nothing more than repetitive legal conclusions to support his contention that Defendants Tara Crisinati, Donshea Defendants") matter. Smith, and Bon Secours conspired with Judge Yoffy, ("the Bon Secours or anyone, for that Indeed, Worthington does not even allege that any of the Bon Secours Defendants had any contact whatsoever with Judge Yoffy, much less that they reached any sort of agreement. Worthington only states, in conclusory fashion, that "Defendant Jewish Family Services (JFS) and thus Bon Secours and all defendants, knew as a matter of fact, and law, that XW visited his grandfather regularly over the years prior to his demise." (ECF No. 52, 5 7) not allege how (emphasis added). or why Jewish However, Worthington does Family Services might have possessed such knowledge, why such knowledge should be imputed to the Bon Secours Defendants, or how such knowledge shows that the Bon Secours Defendants were "jointly officials in the prohibited action." engaged with state Adickes, 398 U.S. at 152 (quoting United States v. Price, 383 U.S. 787, 794 (1966)). In a document titled "Sur-Reply Affidavit," (which, ironically, is not notarized or otherwise sworn) Worthington again alleges that "Bon Secours, Castle Defendants, JFS, Yoffy, Keuken-Rittenberry, and their other co-conspirator defendants deprived XW of his right to be his grandfather's guardian/conservator..." 58, t 18). The Court can discern 19 no facts in (ECF No. any of Worthington's filings that provide any plausible support for the allegation that the Bon Secours Defendants had any role in the alleged conspiracy. Thus, Worthington has failed to plausibly allege that the Bon Secours Defendants acted "under color of state law." Moreover, as to those defendants, the Complaint fails the test of Twombly and Iqbal as to the conspiracy aspects of paragraph 40. The only allegations even mentioning Defendant Jewish Family Services, found in one of Worthington's many "Affidavits" filed in response to Defendants' more conclusory. motions to dismiss, are even Worthington says that "JFS is being sued as a co-conspirator with two state actors," that "JFS was privy to all that occurred," and that "JFS was a willing party to the fraudulent, invalid ^Last Will and Testament.'" 8-9, 17) . "'naked These allegations assertions' devoid Iqbal, 556 U.S. at 677 present of 'further a (ECF No. 49, textbook factual example of enhancement.'" (internal citation omitted). Worthington has failed to offer any facts from which the Court could infer that Jewish Family Services acted "under color of state law" for purposes of § 1983 or that others who were state it engaged in a actors. Thus, as to conspiracy with Jewish Family Services, the Complaint fails to satisfy Twombly and Iqbal both as to its state actor contentions contentions. 20 and as to its conspiracy With respect to Mooz, Worthington again attempts to establish a conspiracy by alleging that: [n]ot only is a Judge sued as a coconspirator in this action, but also [Ms. Rittenberry], the Notary Public, who produced the fraudulent ... 'Last Will and Testament of Clyde H. Segear,' which Ms. Mooz alludes to in her pleadings ... [Ms. Mooz] has been using this fraudulent ... 'Last Will and Testament' ... to claim disinheritance of [Worthington's] mother and, therefore, no entitlement to inheritance rights of any kind for [Worthington] . (ECF No. 55, "initiated a for However, the illicit Thus, alleges that Mooz Se gear with a to have him deemed incapacitated." (Comp!. 'll Worthington does not provide any factual support conclusion that or otherwise, reason to also number of interviews with Clyde H. determined idea 18). Worthington 6-8). Mooz with ever Judge think that Segear' s created Yoffy, will was or any sort that Mooz fraudulent or of pact, had any invalid. the Complaint is devoid of any plausible basis upon which Mooz was a state actor. 4 4 Alternatively, even if the Court were to find that Mooz acted on behalf of the state in her capacity as guardian ad !item, she would be entitled to absolute immunity from § 1983 claims, "given that the complaint discloses no actions complained of that occurred outside of the proceedings during which [Palmer] was acting as guardian ad li tern." Murphy v. Goff, 2010 WL 2292130, at *4 (W.D. Va. June 7, 2010) (citing Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994) ("[e]ven if Asbill lied to the judge in open court, she was still acting as the guardian, and is immune from § 1983 liability.")); see also 21 Finally, noted above, the same is "lawyers do true not for act Defendant Rose Palmer. *under color of state merely by making use of the state's court system." Asbil, 42 F.3d 886, Sparks, 449 U.S. Palmer sought 24, 890 28 (4th Cir. (1980)). appointment as 1994) As law' Fleming v. (quoting Dennis v. Worthington has alleged that Segear's guardian, "failed to attempt to contact Plaintiff 'XW'" prior to doing so, failed to provide Worthington with information concerning his grandparents, and subsequently "filed a Real Estate Affidavit in the Probate Court of Richmond City." (Compl. SI5 21-22, None of those assertions establish that Palmer was a 30). state actor in failing to do what Worthington alleges that she did not do. And, even if she was a state actor (and she is not), those allegations posit no wrongdoing by Palmer, because there is no allegation that she was obligated to contact Worthington before qualifying as Segear's Conservator or that she was obligated to give Worthington information about his grandparents. no cited authority that such obligations exist, There is and the Court found no authority to that effect.^ Worthington that Palmer Serdah v. tries somehow Edwards, to establish conspired 2011 WL with 3849703, state Judge at *3 action Yoffy (W.D. by to Va. alleging deprive Aug. 30, 2011) . ^ Nor is there any alleged wrong in the filing of the alleged Real Estate affidavit, or any basis in law to believe that doing so was somehow wrongful. 22 Worthington of his inheritance. However, the Complaint contains no pleaded facts that plausibly {or otherwise, posit a conspiracy between those two for for that matter) that, or any other, purpose. In sum, Palmer was allegedly the Complaint provides no a state actor actionable as to conduct her basis own with conduct Judge paragraph 40 is directed toward Palmer. meet the Twombly and Iqbal to consider that or to the insofar Yoffy as as Nor does the Complaint requirements as to the conspiracy aspect of paragraph 40. Because Worthington particularity that attributable to fail. any In any the has of state," event, as failed to Defendants' the a claims sister allege conduct in "fairly 40 court must aptly "a under [his] grandparents' wills is insufficient or that property under those has been allocated in a [his] any summarized, wills that is Paragraph district complaint by plaintiff[] with manner inheritance not to [his] liking does not constitute a cause of action that Section 1983 was intended to address." Supp. 502, Therefore, 513 (D.N.J. Poling v. 2000). K. That Hovnanian Enters., certainly is so 99 F. here. the claims in Paragraph 40 based on the deprivation of Worthington's own Due Process rights will be dismissed as to all Defendants. 23 2. Claims on Behalf of Mr. and Mrs. Segear In Paragraph 40 of his Complaint, Worthington also alleges that Defendants deprived Worthington "and Clyde H. Segear and t, Alice B. Segear of their violation of the First to Worthington's failure property and property and Fourteenth Amendments. to plausibly allege rights" in In addition state action, to the extent that Worthington wishes to bring any claims on behalf of the Segears, he lacks standing to pursue claims on behalf of Segear or Mrs. Segear. The standing requirement is met only where three conditions are satisfied: "(1) the plaintiff must allege that he or she suffered an actual or threatened injury that is not conjectural or hypothetical; (2) the injury must be fairly traceable to the challenged conduct; and (3) to redress the injury." Cir. 2006) 560-561 a favorable decision must be likely Miller v. Brown, 462 F.3d 312, 316 (4th (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992)). Moreover, the Supreme Court has established that a party "generally must assert his own legal rights and interests, rights or and cannot his claim to interests of third parties." U.S. 490, 499 737, 750 (1984) litigant rest from (1975); see (noting raising relief Warth v. generally Allen v. that another standing party's 24 on rights). legal Seldin, Wright, doctrine the 468 422 U.S. prohibits As the a party invoking federal jurisdiction, the plaintiff bears the burden of establishing these elements. Lujan, 504 U.S. at 560-61. With respect to third-party standing, a party may assert claims on behalf of another only if he can show that: (1) the litigant and the third party suffered the same "injury in fact," (2) the litigant must have a "close relationship" with the third party, and (3) there must exist some hindrance to the third party's ability to bring suit for herself. U.S. 400, 410-411 (1991). Powers v. Ohio, 499 Furthermore, in Virginia, constitutional claims on behalf of a decedent must be brought by the decedent's personal representative. Cty. Of Albemarle, 2005 WL 3533428, See, e.g., Stephens v. at *9 (W.D. Va. Dec. 22, 2005); O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345, 1348 (E.D. Va. 1981). Worthington does not allege, nor could he, Segear's appointed personal representative. that he is Therefore, he lacks standing to bring any claims on Segear's behalf. Moreover, with respect to his claims on behalf of Alice Segear, at a minimum, Worthington fails the third prong of the Powers test, because he has alleged no reason why Ms. Segear cannot bring suit on her own behalf. Thus, Worthington's claims Segears will be dismissed for lack of standing. 25 on behalf of the D. Claims in Paragraph 41 Worthington claims Defendants have First Fourteenth and grandparents. to bring in Paragraph violated his 41 of the Complaint that constitutional Amendments to the rights under companionship of the his The Court interprets this paragraph as attempting both a substantive due process claim under the Fourteenth Amendment, and a right of association claim under the First Amendment. However, support for this assertion, Worthington has offered no legal and because the Court can find no precedent to support the existence of such rights under either the First or Fourteenth Amendments, Worthington's constitutional claims pertaining to the deprivation of his grandparents' companionship must be dismissed. Neither the Fourth Circuit nor the Supreme Court has ever held, or even implied, that adult grandchildren have a constitutional right to visit and speak on the telephone with their grandparents under the Fourteenth Amendment. At most, the Supreme Court has held that the state may not constitutionally prohibit grandparents grandchildren. (1977). and has Moore v. However, never companionship. from living with City of East Cleveland, their minor 431 U.S. 494 the context of this right is quite limited, been interpreted to encompass As one sister court within the wisely noted: 26 a right to Fourth Circuit [The] substantive due process cases do not hold that family relationships are, in the abstract, protected against all state encroachments, direct or indirect, but only that the state may not interfere with an individual's right to choose how to conduct his or her family affairs. The emphasis in these cases on choice suggests that the right is one of preemption; rather than an absolute right to a certain family relationship, family members have the right, when confronted with the state's attempt to make choices for them, to choose for themselves. Willard v. City of Myrtle Beach, 1989). 728 F. Supp. 397, 402 (D.S.C. Indeed, the Supreme Court has held that the fundamental Fourteenth Amendment right of parents to make child-rearing decisions allows parents to deny grandparents the companionship of their district grandchildren, court's Worthington's companionship Troxel v. must be process this in argument, is not "reluctant because Harker Heights, implying, assessment Granville, uncharted thus a expand are 503 U.S. 57 for scarce 115, (2000). the concept responsible and and with the contrary to protected declines to recognize such an interest here. interest. Furthermore, of courts substantive decision-making open-ended." 125 (1992). 27 accord grandparent-grandchild constitutionally guideposts area Willard that 530 U.S. to in Collins due in v. Therefore, the Court Similarly, grandparental no court has recognized such a companionship right of association. claim under the First Amendment Supreme Court associational jurisprudence first, the right of consists of two distinct doctrinal threads: association deprivation of protects relationships," and second, of kinds "certain it provides a highly personal "right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, grievances, assembly, petition for the redress of Roberts v. and the exercise of religion." States Jaycees, 468 U.S. 609, 617-618 United Concerning the (1984). former, the Supreme Court has noted that "the relationships that might be entitled to this sort of constitutional protection are those that marriage; attend cohabitation creation raising the the and with one's and sustenance of education a family-and children; Id. at relatives." of 619 (citations omitted). Unsurprisingly, given substantive due protections concerning family," the process Court has the close doctrine and "the creation been unable to parallels the and First between Amendment sustenance locate any of a appellate decision expanding the First Amendment right of association to encompass mere companionship. recognize such a right The Court therefore declines to here. Worthington's constitutional claims under the First and Fourteenth amendments concerning the 28 companionship of his grandparents as asserted in paragraph 41 will accordingly be dismissed as to all Defendants. E. Claims in Paragraph 42 In Paragraph 42 of the Complaint, Defendants "conspired herein their of to, and Fourteenth did, Worthington claims that deprive Amendment Due Plaintiffs Process (sic] and Equal Protection Rights in the same manner as described in paragraph #41." (Compl. 42). Worthington's due process claims fail for the reasons discussed in Part C above, so that analysis will not be repeated here. Additionally, Worthington provides no facts supporting a claim to relief under the Equal Protection Clause, and therefore the remaining claims in Paragraph 42 will also be dismissed as to all defendants. To plead an equal protection violation based on valid laws that: or (1) he ordinances, was treated similarly situated; and (2) or purposeful. Cir. 2001). a plaintiff differently from Garraghty, others 239 F.3d 648, "Once this showing is made, allege who are under the requisite level of scrutiny." into account 654 (4th the court proceeds to the disparity in treatment even taking plausibly that such treatment was intentional Morrison v. determine whether Here, must facially can be justified Id. the more liberal pleading standards for pro se plaintiffs, the Court is unable to discern a single allegation in the Complaint 29 tending to show that Worthington similarly matter, absent was "treated situated.n "others from the differently Morrison, who are 239 F.3d similarly narrative; the from others at are are For 654. situated" Complaint who that altogether concerns only the alleged mistreatment of Worthington and his grandparents. single conclusory paragraph claiming Due Process and This Equal Protection violations fails to provide even a "sheer possibility that a defendant has acted unlawfully." Therefore, Worthington's claims in Iqbal, 556 U.S. at 678. Paragraph 42 shall be dismissed with prejudice as to all Defendants. F. Claims in Paragraph 43 In Paragraph 43 of the Complaint, Worthington alleges that all Defendants Malpractice." "conspired to, and did, commit Medical Defendants argue that Worthington does not have standing to pursue any medical malpractice claim on behalf of Segear. They are correct. Virginia decedent's medical Code § personal malpractice discussed in Part representative of 8.01-229(8) (1) representative claim on C. 2 above, Segear. provides has behalf standing of Worthington Thus, that the is only a to bring a decedent. not Worthington the does As personal not have standing to bring any medical malpractice claims on behalf of Segear, and Worthington's medical malpractice dismissed with prejudice as to all Defendants. 30 claims will be G. Claims in Paragraph 44 In Paragraph 44 of the Complaint, Worthington claims that all defendants "individually and collectively, conspired to, and did, cause Plaintiff." for infliction was causally of of conduct was outrageous related to emotional distress, (1974). intentional and was or intolerable; (3) type of extreme emotional distress could be White, (1991). 241 Va. 23 plaintiffs that expected to still distress factual the was and Eldridge, (4) 215 Va. is so severe that endure it. " need not comply with must than enhancement." the "bare Iqbal, New Nonetheless, severity assertions 556 P. heightened Hatf ill v. (4th Cir. 2005). substantiate with more the no Russo v. However, pursuant to Fed. R. Civ. York Times Co., 416 F.3d 320, 337 further that: (2) distress; pleading standard required by Virginia courts. emotional plaintiff The alleged emotional distress must be "the reasonable person plaintiff on conduct the Womack v. severe. 342 the a reckless; emotional 338, federal Distress in order to prevail on a claim Plaintiff's Plaintiff's distress 8, Emotional and prove by clear and convincing evidence, defendant's conduct Infliction Under Virginia law, intentional must allege, (1) Intentional U.S. of his devoid at of 678-79 (internal citation omitted). Even three assuming elements of that the Worthington test above, 31 he has has satisfied the first pleaded no specific facts tending Indeed, to show that Worthington psychological harm has his emotional alleged beyond no this distress physical, single is severe. reputational, conclusory or paragraph. Because Worthington has failed adequately to plead the element of severe proved, distress, would Worthington's he has failed him entitle statement to to allege relief facts on that, if claim. "defendants ... did[] that this cause Intentional Infliction of Emotional Distress on Plaintiff" is a conclusory Thus, legal allegation Worthington' s and claims not for entitled intentional to any weight. infliction of emotional distress in paragraph 44 will be dismissed as to all Defendants. H. Worthington's Common Law Conspiracy Claims Although it is not entirely clear from the Complaint, it appears that Worthington asserts a claim against all Defendants for common law civil conspiracy. However, any (Compl. 31, 33, 35, 40-44). because Worthington has failed to sufficiently allege underlying wrong, as is required by Virginia law, Worthington's civil conspiracy claims will be dismissed against all Defendants. Under Virginia law, a plaintiff conspiracy claim must allege facts agreement between two or more asserting a sufficient to show: persons (2) to civil ( 1) an accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful 32 means, which (3) results in damage to plaintiff. Wiley, 485 F. Supp. 2d 694, 703 (E.D. Va. 2007) Glass, 228 Va. 39, 47 (1984)). Importantly, Firestone v. (citing Glass v. where "there is no actionable claim for the underlying alleged wrong, there can be no action for civil conspiracy based on that wrong." Citizens for Fauquier County v. SPR Corp., 37 Va. Cir. 44, 50 (1995). other words, "in Virginia, a common law claim of In civil conspiracy generally requires proof that the underlying tort was committed." Almy v. Grisham, 237 Va. 68, 81 (2007). Moreover, "there can be no conspiracy to do an act which the law allows." Hechler Chevrolet, Inc. v. Gen. Motors Corp. , 2 30 Va. 3 9 6, 4 02 is not (1985). Furthermore, enough merely plaintiff to to must survive allege allege a motion that facts the Va. 2003). As explained in See dismiss, conspiracy supporting conspiracy with particularity. Quality Tobacco Prods., LLC, to took the place; existence 261 F. Supp. 2d 483, the of a a v. Bell 499-500 Bay Tobacco, Bay Tobacco, it (E.D. LLC plaintiff must plead agreement in more than mere conclusory language in order to survive a motion to dismiss, because "a conspiracy claim asserted in mere conclusory language is based on inferences that are not fairly or justly drawn from the facts alleged." 33 Id. Worthington's allegations of conspiracy fail that test. First, Worthington's claims that Defendants conspired to commit medical malpractice and intentionally inflict emotional distress must fail because, for the reasons stated above, Worthington has failed to state Worthington has sufficient a claim for the underlying failed to plead his Even particularity. torts. Second, claims of conspiracy with construing the complaint liberally, Worthington did not state any specific facts tending to show that any Defendants made any agreement among themselves to commit medical malpractice or emotional distress on Worthington. failed to state a claim for to intentionally Therefore, common law inflict Worthington has conspiracy, and Worthington's conspiracy claims will be dismissed with prejudice as to all Defendants. CONCLUSION For the reasons set forth herein, Worthington's Complaint will be dismissed as to all claims and all Defendants. It is so ORDERED. Isl Robert E. Payne Senior United States District Judge Richmond, Virginia Date: November "V'f; 2015 34
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