Barry v. Whalen

• Decision Date: 22 June 1992
• Docket Number: Civ. A. No. 3:92-CV-33.
• Citation: 796 F. Supp. 885
• Parties: Marion BARRY, Plaintiff, v. Patrick WHALEN, Individually, Jackie Taylor, Individually, Eugene Ray, Individually, Lisa Wegner, Individually, Joe Krovisky, Individually, and Gregory Bogdan, Individually, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

796 F. Supp. 885

Marion BARRY, Plaintiff, v. Patrick WHALEN, Individually, Jackie Taylor, Individually, Eugene Ray, Individually, Lisa Wegner, Individually, Joe Krovisky, Individually, and Gregory Bogdan, Individually, Defendants.

Civ. A. No. 3:92-CV-33.

United States District Court, E.D. Virginia, Richmond Division.

June 22, 1992.

COPYRIGHT MATERIAL OMITTED

Beverly Diane Crawford, Sa'Ad El-Amin, El-Amin & Crawford, P.C., Richmond, Va., for plaintiff.

Robert William Jaspen, U.S. Atty.'s Office, Richmond, Va., for Patrick Whalen.

Carolyn Sabol, Regional Counsel, Mid-Atlantic Region, Federal Bureau of Prisons, Dept. of Justice, Annapolis Junction, Md., for Jackie Taylor.

MEMORANDUM

MERHIGE, District Judge.

Barry filed this action against the above named six defendants in their individual capacities seeking a temporary restraining order; a preliminary and permanent injunction; declaratory judgment; and compensatory and punitive damages for violations of his civil and constitutional rights under 42 U.S.C. § 1983; the Fifth and Sixth Amendments to the United States Constitution; and for violation of his right to privacy. This matter is now before the Court on the six defendants' individual motions to dismiss, or alternatively motions for summary judgment, and simultaneous motions to substitute the United States as the proper defendant with respect to all non-constitutional claims. These motions have been fully briefed and argued and are ripe for disposition by this Court. As the parties on May 18, 1992 stipulated to the dismissal with prejudice of Defendant Whalen, the following memorandum addresses only the remaining five defendants.

Factual Background

This litigation arises from allegations that Marion Barry engaged in sexual activity with a female visitor while he was an inmate at the Federal Prison Camp located in Petersburg, Virginia. On or about January 6, 1992, Barry received an Incident Report which contained allegations by two white inmates, Floyd Archer Robertson and Robert W. Bromley, and their wives. The Report alleged that Barry had engaged in sexual acts with a female visitor in the visiting room of the prison on December 29, 1992. The allegations stated, among other things, that Barry had oral sex with his visitor; that Barry had his hand under his visitor's dress; and that the visitor had her hand on Barry's genitals.

Inmate Robertson was transferred subsequently to FCI Butner, North Carolina. While at Butner, Robertson gave an extensive telephone interview with the Washington Post during which Robertson discussed in detail the allegations of the Incident Report filed against Barry. It is alleged that Defendant Wegner arranged and monitored this interview which was the basis for an article which appeared in the Washington Post.

Upon inquiry relating to Robertson's transfer, Defendant Krovisky allegedly confirmed to the Washington Post that Robertson was transferred to North Carolina for his own safety relative to threats allegedly made against Robertson by Barry following the filing of the Incident Report. Defendants Ray and Bogdan also allegedly released information to the press relating to the allegations of sexual conduct by Barry.

An informal hearing was held regarding the alleged incident on January 7, 1992 by the camp administrator at the FCI in Petersburg, Virginia. The camp administrator found Barry guilty of violating prison Rule 205, which prohibits engaging in sexual acts, and recommended sanctions. Barry was advised on the day of this hearing that his hearing date before a District Hearing Officer (DHO) would be January 16, 1992. On January 9, 1992 at 10:30 a.m., Barry was notified that his hearing before the DHO would in fact be the next day at 8:00 a.m.

Barry's hearing was held on January 10, 1992 at 9:00 a.m. and presided over by DHO Jackie Taylor. Taylor determined that Barry was guilty of violating Rule 205, which prohibits prisoners from engaging in sexual acts. In view of the violation, Taylor imposed the following sanctions: fifteen days of isolation, to be suspended for ninety days; immediate transfer to a Level II prison facility; and that the female visitor referenced in the Incident Report could not visit Barry for 120 days.

Barry filed an administrative appeal. Subsequently, Barry filed a three-count complaint alleging a variety of state and federal claims against the above named six defendants. Each defendant has filed a motion to dismiss, or in the alternative for summary judgment, on the following grounds:

Grounds for Dismissal as to Defendants Wegner and Krovisky:

1. Insufficiency of service of process under F.R.C.P. 4(e);

2. No constitutionally valid basis for the exercise of personal jurisdiction exists;

3. The Federal Tort Claims Act mandates substitution of the United States for Defendants Wegner and Krovisky as to all claims not premised on violations of the constitution or a federal statute specifically authorizing suits against federal employees in their individual capacities;

4. As to any constitutional claims:

(a) the complaint fails to state a constitutional cause of action against Wegner or Krovisky;

(b) Barry must exhaust his administrative remedies before his Bivens claim may be entertained by this Court; and

(c) if the complaint can be construed to articulate a viable constitutional cause of action, the action must be dismissed because of the defendants' qualified immunity from suit.

Grounds for Dismissal as to Defendant Bogdan and Ray:

1. The Federal Tort Claims Act mandates substitution of the United States for Defendant Bogdan as to all claims not premised on violations of the constitution or a federal statute specifically authorizing suits against federal employees in their individual capacities.

2. As to any constitutional claims against Defendant Bogdan:

(a) the complaint fails to state a constitutional cause of action against Bogdan;

(b) Barry must exhaust his administrative remedies before his Bivens claim may be entertained by this Court; and

(c) if the complaint can be construed to articulate a viable constitutional cause of action, the action must be dismissed because of Bogdan's qualified immunity from suit.

Grounds for Dismissal as to Defendant Taylor:

1. As to Counts I and II¹, Taylor as a Disciplinary Hearing Officer is cloaked with absolute immunity from liability on account of actions he takes in that capacity. In the alternative, Counts I and II should be dismissed based on Defendant Taylor's qualified immunity from suit.

2. Counts I and II fail to state constitutional claims upon which relief can be granted or are subject to summary judgment in favor of Defendant Taylor.

3. Counts I and II may not proceed against Defendant Taylor in his personal capacity for declaratory and injunctive relief.

I. JURISDICTIONAL ISSUES

A. Insufficiency of Service of Process

Both Defendants Wegner and Krovisky were personally served with the summons and complaint at their respective places of employment. Defendant Wegner is employed by the Bureau of Prisons at the Federal Correctional Institution in Butner, North Carolina, and resides in North Carolina. Defendant Krovisky is employed by the United States Department of Justice in Washington, D.C., and resides in Maryland. Defendants Wegner and Krovisky assert, correctly in the Court's view, that the manner of service of process utilized by the plaintiff in this case failed to conform to any of the acceptable modes of service described in Rule 4 of the Federal Rules of Civil Procedure. Pursuant to Rule 4(e), defendants such as Wegner and Krovisky who are not residents of, or found within, the state in which the district court is held must be served with process in the manner prescribed by the applicable laws of the state in which the district court is held. As this Court sits within the Eastern District of Virginia, Virginia law is of course applicable.

Under Virginia Code § 8.01-329(A), hand delivery of process to out-of-state defendants is effective service of process providing that "the exercise of personal jurisdiction is authorized" by Virginia's Long Arm Statute.

Under the pertinent part of Virginia's Long Arm Statute:

(A) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth.

Virginia Code § 8.01-328.1(A)(4).

Virginia courts have interpreted this statute broadly to assert jurisdiction over non-residents to the extent permissible under the due process clause of the federal constitution. Brown v. ABC, 704 F.2d 1296 (4th Cir.1983). When jurisdiction is sought pursuant to Virginia's Long Arm Statute, the appropriate analysis is two-fold: first, the Court must determine that the statutory language purports to assert personal jurisdiction over the defendant; second, if the answer to the first question is in the affirmative, the Court must determine whether the statutory exercise of jurisdiction is constitutionally permissible. See Peanut Corp. v. Hollywood Brands, Inc., 696 F.2d 311 (4th Cir.1982); Processing Research, Inc. v. Larson, 686 F.Supp. 119 (E.D.Va.1988).

Under § 8.01-328.1(A)(4), supra, this Court must initially determine if either Defendant Wegner or Krovisky has caused a tortious injury within the Commonwealth of Virginia. Courts examining Virginia's Long Arm Statute have found that the question of whether a defendant has caused a "tortious injury" in the Commonwealth turns on whether injury has occurred in Virginia. Pennington v. McDonnell Douglas Corp., 576 F.Supp. 868 (E.D.Va.1983). Undoubtedly if Mr. Barry has suffered cognizable injury as a result of Wegner or Ray's actions, then he...