Battle v. Whitehurst, Civ. A. No. 2:93cv350.

• Decision Date: 26 August 1993
• Docket Number: Civ. A. No. 2:93cv350.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Sherry D. BATTLE, individually and trading as Battle Bail Bonding Co., Plaintiff, v. Alfred W. WHITEHURST, individually and in his official capacity as Judge, Fourth Judicial Circuit of Virginia, Circuit Court of the City of Norfolk, and Gary Wright, individually and in his official capacity as Chief Deputy Clerk for the Circuit Court of the City of Norfolk, and Charles Studds, individually and in his official capacity as Magistrate for the City of Norfolk, Defendants.

831 F. Supp. 522

Sherry D. BATTLE, individually and trading as Battle Bail Bonding Co., Plaintiff, v. Alfred W. WHITEHURST, individually and in his official capacity as Judge, Fourth Judicial Circuit of Virginia, Circuit Court of the City of Norfolk, and Gary Wright, individually and in his official capacity as Chief Deputy Clerk for the Circuit Court of the City of Norfolk,

and

Charles Studds, individually and in his official capacity as Magistrate for the City of Norfolk, Defendants.

Civ. A. No. 2:93cv350.

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

August 26, 1993.

Sa'ad El-Amin, El-Amin & Crawford, P.C., Richmond, VA, for plaintiff.

Linwood T. Wells, Jr., Office of Atty. Gen., Crim. Litigation Section, Richmond, VA, for defendants Alfred W. Whitehurst and Charles Studds.

John Stephen Wilson, Conrad Moss Shumadine, Willcox & Savage, P.C., Norfolk, VA, for defendant Gary Wright.

MEMORANDUM OPINION AND ORDER

PAYNE, District Judge.

Plaintiff, Sherry D. Battle, individually and trading as Battle Bail Bonding Co. ("Ms. Battle"), instituted this action under 42 U.S.C. § 1983 seeking damages from the Honorable Alfred W. Whitehurst, a judge of the Circuit Court of the City of Norfolk ("Judge Whitehurst"), Gary Wright, the Chief Deputy Clerk of that court ("Mr. Wright"), and Charles Studds, a Magistrate of the City of Norfolk ("Magistrate Studds"). The complaint also prays for injunctive relief against Judge Whitehurst. All defendants are sued in their individual and official capacities. Ms. Battle also seeks to hold the defendants liable under Va.Code Ann. §§ 18.2-499 and 18.2-500 for conspiring to injure her in her trade or business.¹

Relying upon principles of absolute judicial immunity or derivative immunity, all defendants have moved to dismiss Ms. Battle's claims for money damages under Fed. R.Civ.P. (12)(b)(6) for failure to state a claim upon which relief can be granted. Judge Whitehurst also has interposed the Eleventh Amendment to the Constitution of the United States as a defense to Ms. Battle's claims seeking injunctive relief against him. All defendants seek dismissal under Fed. R.Civ.P. 12(b)(6) of Ms. Battle's state law claim under Virginia Code Ann. §§ 18.2-499 and 500.

STATEMENT OF FACTS

Ms. Battle operates a bail bond business in the City of Norfolk. On June 30, 1992, Judge Whitehurst, acting in his judicial capacity and pursuant to the provisions of Virginia Code Ann. § 19.2-152.1, issued a certificate allowing Ms. Battle to act as a bondsman and setting the amount of her obligation at $200,000, thereby limiting Ms. Battle's ability to bond at an aggregate total of $200,000. It is undisputed that as of early January 1993 Ms. Battle had issued bonds in excess of the amount permitted by her certificate. Although the amount of the excess is not entirely clear, it was at least $6,050.

This action has its genesis in events which occurred on January 5, 1993. On that date, Ms. Battle posted bond for a prisoner who was subsequently and inadvertently released by the Norfolk Sheriff before the prisoner had signed his contract with Ms. Battle. Ms. Battle alleges that she asked Magistrate Studds for help in resolving this problem and that he was "completely uncooperative, telling Ms. Battle that the bond was not his problem." Ms. Battle reported this conduct to the Chief Magistrate of the City of Norfolk, who subsequently reprimanded Magistrate Studds. This, according to Ms. Battle, angered Magistrate Studds and prompted him to report to Mr. Wright that Ms. Battle had exceeded her $200,000 bonding limit.

Mr. Wright, who is not alleged to have been aware of the difficulty with the prisoner or the alleged recalcitrance of Magistrate Studds, immediately communicated to Judge Whitehurst that Ms. Battle reportedly had exceeded her bonding limit. According to an affidavit filed by Mr. Wright, Judge Whitehurst instructed him to send a letter to Ms. Battle informing her that the limit of her bonding capacity had been exceeded and to inform the Office of the Magistrate for the City of Norfolk that Ms. Battle was not permitted to post any more bonds until her certificate was reinstated by the court. On January 11, 1993, Mr. Wright wrote to Ms. Battle on the official letterhead stationery of the Office of the Clerk of Court: (1) advising her that she had exceeded her bonding limit of $200,000; (2) asking her to submit a list of currently outstanding bonds; (3) asking her to explain why her bonding limit had been exceeded; and (4) informing her that he was "advising the Office of the Magistrate that you are no longer allowed to bond in the Commonwealth of Virginia until the judges of the Norfolk Circuit Court reinstate you." This letter is cited in full in the complaint and a copy of it is attached to several of the briefs.

The complaint further alleges that Ms. Battle asked both Mr. Wright and Judge Whitehurst for access to the evidence supporting the charge that she had exceeded the limit set by her certificate. Mr. Wright is said to have denied "having the evidence" and referred Ms. Battle to Judge Whitehurst, who also supposedly denied having it. In any event, on January 19, 1993, Ms. Battle submitted to Judge Whitehurst what her complaint describes as "written evidence" showing that her active bonds in the Commonwealth totaled $206,050. She says that her submission also showed that her then pledged collateral was worth $208,000 ($198,000 in real estate equity and $10,000 cash) which she offered to augment with additional collateral. When Ms. Battle brought these facts to Mr. Wright's attention he informed her that the relevant limit was that set by her certificate, not the estimated value of the pledged collateral. Mr. Wright further informed Ms. Battle that other bondsmen were being investigated and, according to the complaint, he told Ms. Battle that another bondsman had received a letter such as the one Mr. Wright sent to her on January 11, 1993.

On January 25, 1993, Ms. Battle delivered a letter to Judge Whitehurst confirming that she had delivered the above-described evidence to Mr. Wright and offering to deposit additional collateral. Ms. Battle says that on the next day she made several attempts to meet with Judge Whitehurst, who declined to meet with her and instead sent word that "her case would be decided at the next meeting of judges which would take place next week." That meeting is said to have occurred on February 2, 1993, and, according to the complaint, Judge Whitehurst wrote to Ms. Battle on February 4, 1993, that "the judges of this circuit have decided to revoke your certificate to act as a professional bondsman. This decision is based upon the fact that you have written bonds far in excess of your collateral." That letter also is quoted in full in the complaint and a copy of it also is attached to several briefs.

Ms. Battle, an African-American female, alleges that the state court did not revoke the certificate of the white, male bondsman who in January 1993 reportedly received from Mr. Wright a letter similar to the one Mr. Wright sent to Ms. Battle. This, says Ms. Battle, shows that the action taken against her was based solely on her gender and race. Finally, in a related charge, she alleges that in the past white bondsmen have exceeded their bonding limits without adverse consequence, and that certain reporting requirements of Va.Code Ann. § 19.2-152.1 have not been enforced against bondsmen generally, thereby encouraging them to exceed their bonding limits.

On the strength of these allegations, Ms. Battle asserts that Mr. Wright and Judge Whitehurst have affirmatively abused their power by revoking her bonding certificate. Ms. Battle first argues that Va.Code Ann. § 19.2-152.1 only permits suspension of her bonding privilege, not revocation of her license, and that accordingly those defendants abused their power by revoking her license. She also contends that the action taken against her (whether suspension or revocation) was an affirmative abuse of power because it was not preceded by a hearing as required by Va.Code Ann. § 19.2-152.1. Ms. Battle next claims that Mr. Wright and Judge Whitehurst acted arbitrarily and capriciously, denied her constitutionally protected property interest in continuing to act as a bondsman pursuant to the certificate, denied her liberty interest by denying her a hearing to clear her name after having stigmatized her by informing the Norfolk magistrates that she had exceeded her bonding limit, and denied her equal protection of the law based on her gender and race. Finally, Ms. Battle alleges that Judge Whitehurst, Magistrate Studds and Mr. Wright conspired to injure her in her trade or business in violation of Virginia Code §§ 18.2-499 and 500. In this regard, she charges in conclusory terms that each defendant was motivated by spite and ill-will because Ms. Battle was not "cowed by their white, male attempts to control and dominate her" and because she refused to go along with unspecified practices expected of bondsmen in Norfolk.

Ms. Battle's complaint was filed on April 23, 1993. Five days later, by letter dated April 28, 1993, Ms. Battle wrote to Judge Whitehurst and represented that her current bond obligations totalled $57,000, offered again to post additional collateral, and asked for his "immediate attention to this matter." On May 11, 1993, counsel for Judge Whitehurst responded to Ms. Battle and informed her and her counsel that it would be appropriate to withdraw the temporary revocation imposed on February 4, 1993, if Ms. Battle could demonstrate that her outstanding bond obligations were in fact then in the amount of $57,000. Counsel for Ms. Battle also was asked to submit supporting evidence and was told that thereafter "the Court will review the evidence with reasonable dispatch and act appropriately." At oral argument on the pending motions counsel for Ms. Battle acknowledged that there had been no...