Briggman v. Virginia, Dept. of Social Servs., Dcse

• Decision Date: 21 December 2007
• Docket Number: Civil Action No. 5:07CV00073.
• Citation: 526 F.Supp.2d 590
• Parties: David B. BRIGGMAN, Plaintiff, v. Commonwealth of VIRGINIA, DPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT EFORCEMENT, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

526 F.Supp.2d 590

David B. BRIGGMAN, Plaintiff, v. Commonwealth of VIRGINIA, DPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT EFORCEMENT, et al., Defendants.

Civil Action No. 5:07CV00073.

United States District Court, W.D. Virginia, Harrisonburg Division.

December 21, 2007.

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David B. Briggman, Keezletown, VA, pro se.

Christina Nicole Gilliam, Attorney General of Virginia, Richmond, VA, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, District Judge.

The plaintiff in this case, proceeding pro se, has alleged that numerous state agencies and officials have violated his civil rights and have committed actions which are against federal and state law during the Commonwealth's handling of the plaintiff's child support obligations and its collection efforts related to the plaintiff's nonpayment of child support. This matter is before the court on the motion to dismiss filed by many of the state defendants as well as the plaintiffs motions for class certification and preliminary injunction. For the reasons set forth below, the defendants' motion to dismiss will be granted, and the plaintiff's motions will be denied.

FACTUAL BACKGROUND

The plaintiff, David B. Briggman ("Briggman"), was required to pay child support pursuant to a 1988 order of the Arlington County Circuit Court. According to the plaintiff, at the time the order was entered, he was already $6,300 in arrears on his child support obligations. Since that time, Briggman has accumulated arrearages upon which interest was imposed at statutory rates, has been subject to several motions to show cause why he should not be found in contempt for lack of payment, has been sentenced to at least two periods of incarceration after being found in contempt for nonpayment of child support, and has been required to pay purge clauses of varying amounts in order to obtain his release from prison on those contempt charges. Although the child to whom Briggman owed a duty of support has apparently attained her majority at this time, he may still be in arrears with regard to certain outstanding child support obligations.

The defendants named in this case include: the Department of Social Services, Division of Child Support Enforcement; Office of the Attorney General; Circuit Court Judges; Juvenile and Domestic Relations Court Judges; Clerks of the Juvenile and Domestic Relations Courts; the Virginia State Bar; Bob McDonnell, in his official capacity as Attorney General; Marilyn B. Tavenner, in her official capacity as Secretary of Health and Human Resources; Maurice Jones, individually and as Commissioner of the Department of Social Services; Nathaniel L. Young, Jr., individually and as Director of the Division of Child Support Enforcement; Nancy L. Crawford, individually and as Regional Special Counsel for the Division of Child Support Enforcement; Loretta Swope, individually and as Program Administrative Manager III for the Division of Child Support Enforcement; Michele Burke, Harvey A. Wynn, James Hawkins, and Diane Spencer-Storey, Program Administrative Specialists for the Division of Child Support Enforcement; and Janice J. Wellington, Thomas G. Underwood, Herman A. Whisenant, Jr., Julia S. Savage, and Frank A. Hoss, Jr., Juvenile and Domestic Relations Court Judges. In addition to these state defendants, Briggman had also named Gregory E. Stambaugh and James B. Pattison as "Private Prosecutors" for the Commonwealth of Virginia, however he has moved to voluntarily dismiss both of these individuals from this action. With regard to the remaining defendants, Briggman alleges that they were involved with various actions related to his child support obligations which deprived him of civil rights and rights secured to him pursuant to Virginia and federal law as well as the Constitution of the United States.

THE PLAINTIFF'S CLAIMS

Briggman has asserted twelve claims in his amended complaint, some against particular defendants and some against all of the defendants generally. Briggman also contends that the actions taken by the defendants have affected persons who are similarly situated. In that regard, the plaintiff has filed a motion for class certification in order to convert this action to a class action, presumably with himself as the class representative.

In Count One of the plaintiffs amended complaint, Briggman states that he has been made subject to legal proceedings initiated by non-attorney employees of the Division of Child Support Enforcement ("DCSE") in violation of Virginia law, which prohibits the unauthorized practice of law. The plaintiff states that this practice has been sanctioned by the Office of the Attorney General as well as by all the judges of the Commonwealth, including particularly the named defendants Janice J. Wellington, Thomas G. Underwood, Herman A. Whisenant, Jr., and Julia S. Savage. The plaintiff also states that defendants James Hawkins and Diane Spencer-Storey have signed pleadings on behalf of the DCSE and are not attorneys. Briggman claims that this practice has deprived him of his civil rights in that he was subjected to arrest, imprisonment and the loss of money without due process of law in violation of 42 U.S.C. § 1983.

In Count Two, the plaintiff contends that judges in the Juvenile and Domestic Relations Courts routinely impose purge clauses upon persons, including Briggman, who have been found guilty of criminal contempt and sentenced to a period of incarceration, presumably for nonpayment of child support The plaintiff claims that the purge clauses result in the re-classification of such an individual from a criminal contemnor to a civil contemnor, which in turn eliminates the entitlement for "day-for-day" credit off his term of imprisonment and results in the deprivation of liberty and property without due process of law in violation of 42 U.S.C. § 1983.

In Count Three, Briggman charges the defendant judges of the Juvenile and Domestic Relations Courts with imposing purge clauses against civil contemnors, including himself, without making any finding with regard to the contemnor's present ability to pay such a purge clause. The plaintiff states that Virginia law does not require a judge to make such a finding prior to the imposition of a purge clause. Nevertheless, Briggman claims that this action has deprived him of his liberty and property without due process of law in violation of 42 U.S.C. § 1983.

In Count Four, the plaintiff states that the Clerks of the Juvenile and Domestic Relations Courts, without the intervention of a judge, are issuing civil show cause summonses based upon the alleged failure to comply with child support obligations and are determining whether to issue a criminal or civil show cause summons in violation of Va.Code Ann. § 16.1-278.16, which requires the court to make such determinations. The plaintiff claims that these actions have deprived him of liberty and property without due process of law in violation of 42 U.S.C. § 1983.

In Count Five, asserted against only defendant Underwood, the plaintiff claims that he was subjected to false arrest and imprisonment when defendant Underwood issued a warrant for the plaintiff's arrest due to failure to appear at a hearing scheduled in state court during a period when Briggman had removed his case to federal court. Although the case was remanded back to state court shortly after the hearing date, the plaintiff contends that defendant Underwood took his action in the absence of any jurisdiction over Briggman's case.

In Count Six, asserted against only defendant Savage, the plaintiff claims that he was subjected to false arrest and imprisonment when defendant Savage issued a capias for his arrest based upon the nonpayment of an $8,000 purge clause imposed after a finding that Briggman was in civil contempt of court. The plaintiff claims that he had appealed the order of the Juvenile and Domestic Relations Court judge to the Circuit Court and that defendant Savage lacked any jurisdiction to order his arrest or to determine whether he had perfected his appeal to the Circuit Court.

In Count Seven, the plaintiff states that defendants DCSE and the Juvenile and Domestic Relations and Circuit Court judges have improperly made retroactive modifications to child support orders in violation of 42 U.S.C. § 666 and Va.Code § 20-108. Specifically, the plaintiff claims that defendant Wellington retroactively modified a 1988 support order by awarding the plaintiff's ex-wife $6,168 for his daughter's medical payments in 1997. Furthermore, in 2005, Briggman asserts that defendant Underwood agreed to further modify the 1997 order by awarding interest on the medical payments for a period of three years. Later, defendant Whisenant allegedly further modified the 1988 support order by awarding interest on the entire period during which the award of medical payments was outstanding.

In Count Eight, the plaintiff asserts that defendant DCSE has engaged in the retroactive modification of interest rates on child support arrearages in violation of 42 U.S.C. § 666 and Va.Code § 20-108. Specifically, Briggman claims that, after Va. Code § 63.1-267 was passed in 1995 to permit the collection of interest on child support arrearages, the Division improperly applied the statute to arrearages currently on the books rather than only to prospectively accumulated child support arrearages.

In Count Nine, the plaintiff claims that defendants DCSE, the judges in the Juvenile and Domestic Relations Courts and Circuit Courts, the Office of the Attorney General and the Virginia State Bar have aided non-attorney employees of the DCSE in signing pleadings and motions to show cause thus engaging in the unauthorized practice of law. The plaintiff contends that this action is in violation of his civil rights and of 42 U.S.C. §§ 1983, 1985 and 1986.

In Count Ten, the plaintiff alleges that the judges in the Juvenile and...