Buschi v. Kirven
| Citation | 775 F.2d 1240 |
| Decision Date | 29 October 1985 |
| Docket Number | No. 84-1280,84-1280 |
| Parties | 120 L.R.R.M. (BNA) 3059, 54 USLW 2270, 1 Indiv.Empl.Rts.Cas. 1726 Brendan BUSCHI; Dennis B. Draper, Jr.; Donald Vassey; Susan Andrews; Wanda Scott; Elizabeth G. Tsatsios and Jerry Wall, Appellants, v. Leo E. KIRVEN, Jr.; William J. Burns; Jean Harris; C. William Brett; Raymond F. Holmes; Glenn R. Yank; Paul L. Hundley; David Colton; Charles Spraker; L.F. Harding; John N. Dalton; Kenneth B. Yancey; Carolyn O. Marsh; Joseph J. Bevilacqua; Anne S. Goodman; Ruth Cook; Ralph DeWitt; Robert Harrison; Philip E. Denton; Charles S. Robb; Patrick A. O'Hare; Deborah L. Bryant; Robert Ware; Mary Bradshaw and Willis Spaulding, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Edward M. Wayland, Charlottesville, Va. (Wayland & Williams, Earl R. Burton, Charlottesville, Va., on brief) for appellants.
Karen A. Gould, Richmond, Va., Carter R. Allen, Waynesville, Va., John M. Claytor, Richmond, Va. (James W. Morris, III, Crews, Hancock & Dunn, Richmond, Va., Allen, Dalton & Watkins, Waynesboro, Va., Browder, Russell, Morris & Butcher, Richmond, Va., on brief) for appellees.
Before RUSSELL and SPROUSE, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Seven dismissed employees of the State Western Mental Hospital, located at Staunton, Virginia, have filed under 42 U.S.C. Sec. 1983 two actions charging basically that their discharges were the result of a conspiracy in violation of both their first amendment and due process rights. They have named as defendants some twenty-five state officials and employees, ranging from the Governor of the Commonwealth down through the department heads at the Hospital. The only difference in the plaintiffs' two complaints is the addition in the second complaint of two counts stating causes of actions for a "conspiracy to deprive mental patients [at the Hospital] of the equal protection of the laws" and the inclusion of five additional defendants.
Both complaints begin by stating in separate counts five causes of action. In the first of such causes of action, the plaintiffs allege that they had complained through institutional channels of patient abuse, racial discrimination, administrative and clinical mismanagement, waste and misuse of All the defendants--sometimes in joint answers, and sometimes separately--answered the complaints. The parties exchanged interrogatories. The defendants thereupon filed motions for summary judgment under Fed.R.Civ.P. 56, supporting these motions with affidavits and certain of the answers of plaintiffs to interrogatories. The plaintiffs responded with affidavits. On this record, the motions came on for hearing before the district judge, who, after extensive oral and written arguments, filed his order granting the motion in part and denying it in part.
state funds, and harassment of employees at the Hospital. They also allege that they had communicated such complaints to "representatives of the media," the American Civil Liberties Union (ACLU), the National Association for the Advancement of Colored People (NAACP), and the Equal Employment Commission (EEOC), as well as to the Governor of the Commonwealth and various Commonwealth officials. As a consequence of these complaints, so published by them, they allege they were subjected to disciplinary actions during the period from April 27, 1981 up to July 20, 1981, at which time they were "fired" because of what they allege to have been the exercise of their first amendment rights. In their separate due process cause of action they allege that they were denied a pre-termination hearing and that they had been prevented "from pursuing their complaints through [state administrative] grievance procedures." Their third cause of action purports to state a right of action under 42 U.S.C. Sec. 1985(3) by a class of "whistleblowers," of which they claim to be representatives, who had been discharged for the exercise of their right to expose publicly wrongdoing by the Hospital administration; and their fourth cause of action under 42 U.S.C. Sec. 1986, linked to their Sec. 1985(3) action, is for failure to prevent or correct the wrongs allegedly perpetrated by certain of the defendants in the third cause of action. The fifth cause of action was a pendent claim under certain Commonwealth statutes. The additional two causes of action in the enlarged second complaint set up a right of action for injuries suffered by the Hospital patients as a result of improper care. In their prayer for relief on all these charges, the plaintiffs sought a declaration of rights, reinstatement, backpay and restoration of benefits, injunctive relief against harassment by the Hospital administration, and monetary damages in the sum of seven million dollars ($7,000,000). Though they had added in their second complaint two causes of action for patient relief, the plaintiffs omitted any specific request for relief on behalf of the patients
In his order on the motions for summary judgment, the district judge held that the plaintiffs' first cause of action, which stated, as he construed it, a "violation of the plaintiffs' right to freedom of speech, a charge made basically under the First Amendment" was "a charge which should properly go forward." He found without merit the plaintiffs' due process claim as stated in their second cause of action, ruling, on the basis of Robertson v. Rogers, 679 F.2d 1090 (4th Cir.1982), that there was "not a property or liberty interest in state employment." Plaintiffs' third cause of action under section 1985(3) was dismissed on the ground that there was "no showing of any disparity in the treatment of these employees." The section 1986 action, set forth in plaintiffs' fourth count, was dismissable because it required as a predicate a violation of section 1985(3) and fell with the dismissal of the section 1985(3) action. The pendent state action, constituting plaintiffs' fifth cause of action, was dismissed because Section 18.2-499 of the Code of Virginia provided only criminal penalties and Section 18.2-500 requires a finding of an illegal conspiracy. Finally, the district judge dismissed the two causes of action which the plaintiffs had sought to maintain on behalf of Hospital patients for lack of standing on the part of the plaintiffs to maintain such suits.
In addition to these rulings, the district judge had granted individual motions for dismissal filed by certain defendants. The first of the defendants so dismissed were the defendants Bradshaw and Spaulding, At the time of the disposition of the motions for summary judgment, the district judge consolidated the first amendment claims of the plaintiffs as stated in the two complaints of the plaintiffs. As so consolidated, the causes came on for trial before a jury. From a jury verdict in favor of the defendants and the judgment entered thereon, the plaintiffs have appealed. We affirm.
who were the chairperson and the counsel, respectively, of the Local Human Relations Committee, to which had been assigned the investigation and reporting on the patient abuse claims raised by the defendants. The district judge found that the two were quasi-judicial officials who in the matters in controversy were acting entirely in their official duties and, under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), were immune from suit. Similarly, the defendant O'Hare, the assistant State Attorney General, whose only connection with the case was his assignment as attorney to the Mental Health and Mental Retardation Department, was dismissed on the same grounds. The district judge finally dismissed all charges of conspiracy against those state officials at central headquarters in Richmond who had no direct connection with the Western Mental Hospital, on the ground that "state employees engaged in the exercise of their duties, acting as state officials, could not be charged with conspiracy." Under this ruling, defendants Robb, Dalton, Bevilacqua, Harris, Yancey, Marsh, Ware, Bryant, and Goodman were eliminated as defendants in the first cause of action stated by the plaintiffs in both complaints, which was the only cause of action permitted to "go forward."
Before considering the grounds of error asserted by the plaintiffs, a sketch of the facts largely as developed at the hearing on the motions for summary judgment is appropriate. All of the plaintiffs were employees in the Department of Social Services at the Western Mental Hospital, the plaintiff Buschi being the head of such department. In the summer of 1980 the defendant Burns was appointed administrator and chief executive officer at the Hospital. It is suggested in the affidavits of the defendants, not specifically disputed in plaintiffs' affidavits, and plainly established on the record as a whole, that the plaintiff Buschi and a close associate, Gary Hardley, 1 who was the director of Quality Assurance and Education Services at the Hospital, were strongly opposed to, and did everything they could to prevent Burns' appointment. When disappointed in their efforts to thwart Burns' appointment, they began a concerted effort to effect his removal as administrator. By his own affidavit, Buschi, who appears from the record to have been the leader on behalf of the plaintiffs in all the matters resulting in this lawsuit, raised, as early as September 1980 and continuing unabated in the following months, repeated complaints questioning the legality of admission practices at the Hospital, (practices which in one instance at least dated back as far as 1974) the propriety of the treatment of so-called "forensic" patients, the carrying out of alleged unauthorized research, racial discrimination, the improper, if not illegal, relationship between the Hospital and the University of Virginia, and more importantly, patient abuse. Others among the plaintiffs made similar...
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