In Re: Mills v. ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1024
In Re: JAMES M. MILLS, State Trooper, in both his official
and personal capacity; D. L. LEMMON, Superintendent of the
West Virginia State Police, in his official capacity,
Petitioners.
On Petition for Writ of Mandamus. (3:07-cv-00142-JPB)
No. 08-1032
BRENDA A. BOSELY, Administratrix of the Estate of James C.
Bosely, Deceased; BRENDA BOSELY,
Plaintiffs - Appellees,
v.
COLONEL D. L. LEMMON, Superintendent of the West Virginia
State Police, in his official capacity; JAMES M. MILLS, State
Trooper, in both his official and personal capacity,
Defendants - Appellants,
and
MINERAL COUNTY SHERIFF’S OFFICE; CHIEF DEPUTY SABIN, of the
Mineral County Sheriff’s Office, in both his official and
personal capacity; JOHN DOES 1-5, in both their official and
personal capacities,
Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cv-00142-JPB)
Argued: May 13, 2008 Decided: July 29, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Alexander WILLIAMS,
Jr., United States District Judge for the District of Maryland,
sitting by designation.
Petition granted and affirmed by unpublished per curiam opinion.
ARGUED: (No. 08-1024) Lucien Garlow Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia; Perry Wayne Oxley, OFFUTT, FISHER &
NORD, Huntington, West Virginia, for Petitioners. John Christian
Yoder, Harpers Ferry, West Virginia, for Respondents.
(No. 08-1032) Jason Patrick Foster, STEPTOE & JOHNSON, Martinsburg,
West Virginia, for Appellants. John Christian Yoder, Harpers
Ferry, West Virginia, for Appellees. ON BRIEF: (No. 08-1024) Jason
P. Foster, STEPTOE & JOHNSON, Martinsburg, West Virginia, for
Petitioners. (No. 08-1032) Lucien G. Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Brenda A. Bosely (“Bosely”) brought this action on her own
behalf and as administratrix of the estate of the late Dr. James C.
Bosely. Originally filed in West Virginia state court, the suit
alleges various causes of action arising out of Dr. Bosely’s death
during the execution by two law enforcement officers of a mental
hygiene order. After removal of the action to federal district
court, the district court granted a motion by Bosely to remand the
case back to state court. The defendants now petition for a writ
of mandamus requiring the district court to retain jurisdiction
over the case. One defendant also appeals the denial of a motion
to dismiss the complaint on the grounds of absolute quasi-judicial
immunity and qualified immunity. We grant the mandamus petition
and affirm the denial of the motion to dismiss.
I.
According to Bosely’s complaint (“the complaint”), Bosely
swore out a mental hygiene complaint for her husband, Dr. Bosely,
alleging that he was suicidal and a danger to others. Bosely
alleges that West Virginia State Police Trooper James Mills and
Chief Deputy of the Mineral County Sheriff’s Office Paul Sabin
arrived at Dr. Bosely’s residence and took him into custody
pursuant to a mental hygiene detention order. The complaint
alleges that the officers “bashed Dr. Bosely’s head against the
3
kitchen wall after taking Dr. Bosely into custody, leaving blood on
the kitchen wall.” (Complaint, ¶ 20). It also alleges that
shortly thereafter, “Dr. Bosely received a single gunshot wound to
his head” and that he was pronounced dead on the scene at
approximately 10:14 that morning. (Complaint, ¶ 21). The
complaint alleges that Mills and Sabin knew that Dr. Bosely had
guns in the house and that he was potentially a danger to himself
and others. It also alleges that at all relevant times, the
defendants were acting under color of state law. Finally, it
alleges that Superintendent of the West Virginia State Police
Colonel D.L. Lemmon was vested with authority and control of Mills
and is vicariously liable for his actions.
The complaint asserts causes of action pursuant to
42 U.S.C.A. § 1983 (West 2003), the West Virginia Constitution, and
West Virginia common law. Specifically, it alleges that the
defendants violated Bosely’s rights not to be deprived of life
without due process of law under the Fifth and Fourteenth
Amendments to the United States Constitution and Article 3, § 10 of
the West Virginia Constitution and his rights to be free from
unreasonable searches and seizures under the Fourth and Fourteenth
Amendments to the United States Constitution and Article 3, § 6 of
the West Virginia Constitution. It also asserts causes of action
for negligence and wrongful death.
4
The complaint names Lemmon and Mills (“the state defendants”)
as defendants in their official capacities as employees of the
State of West Virginia, up to the limit of the State’s insurance
policy. Mills is also named in his official capacity. Sabin is
named in both his individual and official capacities. And the
Mineral County Sheriff’s Office is the final named defendant.
The defendants removed the case to federal district court on
the basis of federal-question jurisdiction. See
28 U.S.C.A. §§ 1446, 1441, 1331 (West 2006). The state defendants
subsequently moved to dismiss the complaint on the basis of
absolute quasi-judicial immunity and qualified immunity. They also
asserted that official-capacity claims are not permissible under
42 U.S.C.A. § 1983, and that the complaint otherwise failed to
state a claim upon which relief could be granted. The state
defendants further asserted Eleventh Amendment immunity against the
official-capacity claims that were based on respondeat superior
principles.
Bosely took the position that the state defendants waived any
defense of Eleventh Amendment immunity when they removed her case
to federal court, and she therefore urged the district court to
retain jurisdiction over the entire case. Alternatively, citing
Morris v. Canterbury, 2:05-CV-1 (S.D. W. Va. May 2, 2005), she
suggested that if the district court concluded that the defendants
had not waived Eleventh Amendment immunity as a defense to the
5
official-capacity claims, the entire case should be remanded to
state court because the remaining state-law claims would
predominate and litigating the official-capacity claims in state
court and the other claims in federal court on the same facts would
be inconvenient.1
For their part, the state defendants maintained that they had
not waived Eleventh Amendment immunity by removing the case to
federal court and that the respondeat superior claims were barred
by the Eleventh Amendment. They also argued that neither
considerations of convenience nor the predominance of state-law
claims authorized a remand of the entire action back to state
court.
The district court granted Bosely’s motion to remand. The
entirety of the district court’s substantive analysis regarding
this decision was as follows:
In their Motion to Remand, plaintiffs cite Morris v.
Canterbury et al., 2:05-CV-1, (S.D.W.V. May 2, 2005), in
which the Southern District of West Virginia remanded all
causes of action to the Kanawha County Circuit Court.
The Court finds remand of all claims to be a suitable
disposition for the present case as well. The Court
questions the theory of removing the case based on
federal jurisdiction and then moving to dismiss the case
based on lack of jurisdiction. Because the State Court
1
Bosely asserted this position in her memorandum to her motion
to remand. In the motion itself, Bosely actually requested
primarily that the district court remand the entire case to state
court and alternatively that the court find that the defendants had
waived immunity by removing the case to federal court and therefore
retain jurisdiction over the entire case.
6
has jurisdiction to hear all claims, the Court finds it
best to remand the entire case.
Based on the foregoing, the Court finds that the
plaintiffs’ Motion to Remand should be, and hereby is,
GRANTED. The Motion to dismiss is DENIED. Accordingly,
this case is hereby REMANDED to the Circuit Court of
Mineral County, West Virginia, for all further
proceedings.
(Remand Order, at 2) (citations omitted).
The state defendants filed this petition for writ of mandamus
challenging the district court’s decision to remand the case to
state court; Sabin and the Mineral County Sheriff’s Office later
joined in the petition. We granted a motion by the defendants to
stay the proceedings in the district court, and the state court has
likewise stayed all proceedings pending the disposition of this
petition.
Mills has also appealed the denial of his motion to dismiss on
the bases of absolute quasi-judicial and qualified immunity.
II.
The defendants contend that they properly removed this case to
federal court and that the district court was obliged to retain
jurisdiction over Bosely’s claims. They therefore argue that the
district court erred by remanding the action to state court and
request that we order the court via writ of mandamus to retain
jurisdiction. Bosely, however, contends that 28 U.S.C.A. § 1447(d)
(West 2006) precludes our review of the remand order because the
7
district court remanded the case based on its perception that it
lacked subject-matter jurisdiction over the claims. We conclude
that we are authorized to review the remand order, and we grant the
relief that the defendants request.
Subject to an exception not applicable in this case, section
1447(d) provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C.A. § 1447(d). Notwithstanding this seemingly
clear language, the Supreme Court has held that appellate-court
review of remand orders is statutorily prohibited only if the
remand is based on one of the grounds listed in
28 U.S.C.A. § 1447(c) (West 2006)--lack of subject-matter
jurisdiction or a timely objected-to defect in the removal
procedure. See Powerex Corp. v. Reliant Energy Servs., Inc., 127
S. Ct. 2411, 2416 (2007). In determining whether a remand order is
reviewable, the critical question is not whether the district court
correctly based its remand on a ground listed in § 1447(c), but
rather, whether the district court believed that such a ground
pertained. See In re Blackwater Sec. Consulting, LLC, 460 F.3d
576, 585 (4th Cir. 2006). Here, no defect in the removal procedure
is alleged; thus, we focus on whether the district court believed
that it lacked subject-matter jurisdiction over the case. Our
review is precluded if “the District Court relied upon a ground
that is colorably characterized as subject-matter jurisdiction.”
8
Powerex Corp., 127 S. Ct. at 2418. If, however, the district court
did not believe that its lack of subject-matter jurisdiction
required the remand, we are authorized to consider the correctness
of the remand decision. See Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 196 (4th Cir. 2008).
Here, we have no reason to believe that the remand order was
based on a perceived lack of subject-matter jurisdiction over the
case. The order acknowledged that the state defendants asserted
Eleventh Amendment immunity as a defense to Bosely’s federal
constitutional claims only.2 And no party disputed that the
district court possessed subject-matter jurisdiction over at least
some of the claims. Indeed, all parties explicitly recognized that
any decision to remand all claims back to state court would be
based on an exercise of the court’s discretion to obtain the most
desirable result. And the language of the remand order, which
includes no reference to § 1447, confirms that the remand decision
was, in fact, based on a discretionary weighing of prudential
concerns rather than on a jurisdictional determination. See
(Remand Order, at 2) (noting Bosely’s reliance on Morris and
concluding that remand of all claims was a “suitable disposition”);
id. (“find[ing] it best to remand the entire case” in light of the
fact that the state court offered a forum where all claims could be
2
In fact, although it is not important to our decision, we
note that Eleventh Amendment immunity was asserted only as a
defense to some of those claims.
9
heard together).3 Because the basis for the remand of the case
could not be “colorably characterized as subject-matter
jurisdiction,” Powerex Corp., 127 S. Ct. at 2418, our review of the
remand order is not precluded. See Barksdale v. Washington Metro.
Area Transit Auth., 512 F.3d 712, 715 (D.C. Cir. 2008) (holding
that court of appeals was authorized to review remand where remand
was based on district court’s discretionary determination that
remand would be more convenient for plaintiff’s counsel).
Having determined that the remand order is reviewable, we have
little trouble concluding that remand was improper. Federal-
question jurisdiction clearly exists over Bosely’s § 1983 claims.
See Front Royal & Warren County Indus. Park Corp. v. Town of Front
Royal, 135 F.3d 275, 278 (4th Cir. 1998). And, the district court
possessed supplemental jurisdiction over the state-law claims
arising out of the same set of facts. See 28 U.S.C.A. § 1367 (West
2006). Although the state defendants asserted Eleventh Amendment
immunity as a defense to some of the § 1983 claims, the fact that
that defense can be waived, see Lapides v. Bd. of Regents, 535 U.S.
613, 618 (2002), suggests that, even if it was not waived here, it
3
The district court’s statement that it “question[ed] the
theory of removing the case based on federal jurisdiction and then
moving to dismiss the case based on lack of jurisdiction,” (Remand
Order, at 2), apparently refers to the issue of whether the
defendants waived Eleventh Amendment immunity by removing Bosely’s
case to federal court. That language does not even suggest that
the district court disagreed with the parties’ view that it
possessed subject-matter jurisdiction over at least some of the
claims.
10
is not jurisdictional, see United States v. Cotton, 535 U.S. 625,
630 (2002) (explaining that lack of subject-matter jurisdiction
cannot be waived); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 654
n.8 (4th Cir. 2006) (“Because the statute of limitations is a
waivable defense, the district court erroneously determined that
its restrictions are jurisdictional in nature.”).4 Moreover, even
if Eleventh Amendment immunity is a jurisdictional bar, assertion
of the bar against one claim does not destroy removal jurisdiction
over the remaining claims--certainly not over the claims against
Sabin and the Mineral County Sheriff’s Office, to which the
immunity clearly does not apply.5 See Wisconsin Dep’t of
Corrections v. Schacht, 524 U.S. 381, 392 (1998) (“A State’s proper
assertion of an Eleventh Amendment bar after removal means that the
federal court cannot hear the barred claim. But that circumstance
does not destroy removal jurisdiction over the remaining claims .
. . .”). Thus, it is apparent that the district court possessed
subject-matter jurisdiction over this case.
4
The Supreme Court has not yet decided whether the assertion
of Eleventh Amendment immunity is a jurisdictional matter. See
Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 391
(1998).
5
Because we conclude that the district court retained
jurisdiction over at least some of the claims even if the state
defendants validly asserted Eleventh Amendment immunity, we need
not address whether the removal of the case operated as a waiver of
that defense. Cf. Lapides v. Board of Regents, 535 U.S. 613, 622-
24 (2002) (concluding that state’s removal of case to federal court
amounted to a waiver of the state’s Eleventh Amendment immunity, at
least as to the state-law claims asserted against the state).
11
Possessing federal-question jurisdiction, the district court
was obliged to exercise it; it had no authority to decline the case
simply because it believed that it would be better for the case to
proceed in state court. See Deakins v. Monaghan, 484 U.S. 193, 203
(1988) (“[T]he federal courts have a virtually unflagging
obligation to exercise their jurisdiction . . . .” (internal
quotation marks omitted)); Barksdale, 512 F.3d at 716 (holding that
district court lacked authority “to remand a case for the
convenience of counsel”); Martin v. Stewart, 499 F.3d 360, 363 (4th
Cir. 2007) (“The Supreme Court has repeatedly instructed that
federal courts have a strict duty to exercise the jurisdiction that
is conferred upon them by Congress.” (internal quotation marks
omitted)). And because there was no valid basis for the district
court to refuse to exercise its jurisdiction over this case,
mandamus relief is in order. See Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 351-53 (1976); Borneman v. United
States, 213 F.3d 819, 826 (4th Cir. 2000).
III.
We next address Mills’ appeal of the district court’s denial
of the state defendants’ motion to dismiss the complaint.
Initially, we note that we can only conclude from the fact
that the district court denied the motion to dismiss summarily,
12
without any discussion of its merits, that the dismissal was
without prejudice and was based simply on the fact that the court
had decided to remand the entire case back to state court. Mills
urges us to reverse the denial, contending that the state
defendants are entitled to absolute quasi-judicial immunity and
qualified immunity. Because these immunities are designed to
shield those that they protect from not only the burdens of
liability, but also the burdens of litigation, see Mitchell v.
Forsyth, 472 U.S. 511, 526-27 (1985), we consider whether the
record at this stage of the litigation demonstrates that Mills is
entitled to either of these immunities. We conclude that it does
not.
We begin with the doctrine of absolute quasi-judicial
immunity. Judges performing judicial acts within their
jurisdiction are entitled to absolute immunity from civil liability
claims. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per
curiam). “‘[Q]uasi-judicial’ . . . officials whose duties are
comparable to those of judges or prosecutors” are likewise entitled
to absolute immunity. Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th
Cir. 1999); see Goldstein v. Moatz, 364 F.3d 205, 213 (4th Cir.
2004). And such immunity extends to the judge’s subordinates for
“functions that are more administrative in character [that] have
been undertaken pursuant to the [judge’s] explicit direction.”
Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992). The basis for
13
extending the immunity in these situations is to prevent a judge’s
subordinates from becoming a “lightning rod for harassing
litigation” challenging decisions for which the judge is immune.
Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1,
3 (1st Cir. 1976). Relying on Martin v. Hendren, 127 F.3d 720 (8th
Cir. 1997), Mills contends that he is entitled to absolute quasi-
judicial immunity since the complaint seeks to hold him liable for
his execution of a judicial order. In Hendren, Officer Hendren
injured Martin when carrying out a judge’s order to remove Martin
from the judge’s courtroom. In a subsequent federal action, the
Eighth Circuit held in a split-panel decision that Hendren was
entitled to absolute quasi-judicial immunity from suit since “[a]
judge’s absolute immunity extends to public officials for acts they
are specifically required to do under court order or at a judge’s
direction.” Hendren, 127 F.3d at 721 (internal quotation marks
omitted).
We do not find the Eighth Circuit’s decision persuasive. As
recognized by the dissent in that case, the majority failed to
appreciate the distinction between protection from liability simply
for following a judge’s order and protection from liability for
carrying out a judge’s order in a manner not sanctioned by the
judge. See Hendren, 127 F.3d at 723 (Lay, J., dissenting); see
also Richman v. Sheahan, 270 F.3d 430, 436 (7th Cir. 2001); Martin
v. Bd. of County Comm’rs, 909 F.2d 402, 405 (10th Cir. 1990) (per
14
curiam) (“[A] judicial warrant contains an implicit directive that
the arrest and subsequent detention be carried out in a lawful
manner.”). Here, Mills’s alleged unconstitutional execution of the
order was not specifically authorized by the judicial officer who
issued the warrant. Nor does the complaint seek to hold Mills
liable for a quasi-judicial decision. Rather, the decision
challenged in the complaint is the defendants’ decision of how to
execute the warrant. Thus, the state defendants clearly are not
entitled to absolute quasi-judicial immunity. See Richman, 270
F.3d at 435-36 (holding that officers ordered to restrain man in
courtroom were not entitled to absolute quasi-judicial immunity
from suit alleging the officers used excessive force in restraining
the man); Bd. of County Comm’rs, 909 F.2d at 405 (holding that
officers executing arrest warrant were not entitled to absolute
quasi-judicial immunity from suit alleging the officers used
excessive force and provided constitutionally inadequate medical
attention in executing the warrant).
Qualified immunity, not absolute immunity, is the defense that
will be available to the state defendants if it is supported by the
facts. Qualified immunity generally shields “[g]overnment
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
15
U.S. 800, 818 (1982). Mills argues that if the district court did
not err in failing to grant his motion to dismiss on the doctrine
of absolute quasi-judicial immunity, it erred in failing to dismiss
the constitutional claims against him in his individual capacity on
the basis of qualified immunity. It is that issue to which we now
turn.6
“In a suit against an officer for an alleged violation of a
constitutional right, the requisites of a qualified immunity
defense must be considered in proper sequence.” Saucier v. Katz,
533 U.S. 194, 200 (2001). The threshold inquiry is whether the
facts alleged, taken in the light most favorable to Bosely,
demonstrate the violation of a constitutional right. See id. If
they do, then we must determine whether the contours of the right
were clearly established such that a reasonable officer would
understand that his actions violated that right. See id. at 201.
We review a district court’s decision to deny a motion to dismiss
on the basis of qualified immunity de novo. See Blankenship v.
Manchin, 471 F.3d 523, 528 (4th Cir. 2006).
Mills’ argument on appeal is simply that the allegations in
the complaint, even if taken as true, are too vague and conclusory
to demonstrate the violation of constitutional rights. See Bell
6
The denial of a motion to dismiss on the basis of qualified
immunity is an appealable order. See Behrens v. Pelletier, 516
U.S. 299, 307 (1996).
16
Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (holding that
allegations in complaint must be sufficient “to state a claim to
relief that is plausible on its face”). We disagree. A complaint
need only give “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“Specific facts are not necessary; the statement need only “‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 127 S. Ct.
2197, 2200 (2007) (per curiam) (quoting Twombly, 127 S. Ct. at
1964). There is no heightened pleading standard for qualified-
immunity cases. See Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.
2001).
Here, the complaint alleged that, after taking Dr. Bosely into
custody, “Mills and Sabin bashed Dr. Bosely’s head against the
kitchen wall” and failed to protect him from being shot in the
head, and that Dr. Bosely died shortly thereafter. (Complaint,
¶¶ 20-22). While it may well be the case that Bosely will
eventually be required to plead her claims with more specificity in
order to protect the state defendants from possibly being
“subjected to unnecessary and burdensome discovery or trial
proceedings,” Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see
Iqbal v. Hasty, 490 F.3d 143, 157-59 (2d Cir. 2007), we conclude
that at this stage, the factual allegations are sufficient, and
denial of the motion to dismiss was proper.
17
IV.
In sum, we grant the defendants’ petition for a writ of
mandamus requiring the district court to retain jurisdiction over
this case and we affirm the district court’s denial of the state
defendants’ motion to dismiss the complaint on the basis of
absolute quasi-judicial and qualified immunity.
PETITION GRANTED AND AFFIRMED
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