Burcher v. McCauley

• Decision Date: 21 December 1994
• Docket Number: Civ. A. No. 3:94CV32B.
• Citation: 871 F. Supp. 864
• Parties: Roy H. BURCHER, Jr., et al., Plaintiffs, v. James C. McCAULEY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

871 F. Supp. 864

Roy H. BURCHER, Jr., et al., Plaintiffs, v. James C. McCAULEY, et al., Defendants.

Civ. A. No. 3:94CV32B.

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

December 21, 1994.

Douglas Early Ballard, Virginia Beach, VA, for plaintiffs.

Barbara Joan Gaden, Office of Atty. Gen., Richmond, VA, for defendants.

George H. Themides, pro se.

Katherine K. Themides, pro se.

L. Thomas Knight, pro se.

George Cook, pro se.

Joseph L.R. Pinnard, pro se.

Odelle Ottofaro, pro se.

Mary F. Worley, pro se.

Gloria Knight, pro se.

MEMORANDUM

MERHIGE, District Judge.

This matter is before the Court on defendants' motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Plaintiffs in this action are Roy H. Burcher, Jr. and Alfred W. Hauser, as well as thirty-three other individuals and "all those similarly situated." Plaintiffs were originally acting pro se, but most are now represented by counsel.

Defendants are the following individuals:

Virginia Supreme Court Justices Harry L. Carrico, A. Christian Compton, Roscoe B. Stephenson, Jr., Henry H. Whiting, Elizabeth B. Lacy, Leroy Rountree Hassell, Barbara Milano Keenan; Michael Rigsby; Eugene L. Reagan, James C. McCauley; as well as "other unknown conspirator(s)."¹

Plaintiffs' Amended Complaint alleges claims against defendants under 42 U.S.C. §§ 1983, 1985, 1986, and 1988, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962 and 1964, and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. This Court has federal question jurisdiction over plaintiffs' claims.

Background

In essence, plaintiffs assert that their constitutional rights were violated by the conduct of the heretofore named defendant "state actors." Specifically, plaintiffs complain of the defendants' alleged conduct relating to the fraudulent activities of one David M. Murray. While an attorney in Virginia, Murray defrauded clients, including plaintiffs, of millions of dollars and then committed suicide in February, 1992. Plaintiffs' allegations all center around the assertion that defendants failed to protect them from Murray's fraudulent scheme.

Plaintiffs claim that defendants "failed to protect the public from the fraudulent activities of David M. Murray," and that the Justices, "having knowledge of the wrongs conspired to be done ... or wrongs about to be committed, and having the power to prevent or aid in preventing the same, neglected or refused to do that which they by reasonable diligence could have prevented." Amended Complaint ¶¶ 11.0, 11.4. According to plaintiffs, the Justices should have better regulated the practice of law in Virginia and should have sanctioned Murray for his behavior.

The complaint also alleges that the State Bar defendants "personally participated in or directed the alleged violations of plaintiffs' rights and that their specific conduct was the direct or proximate cause of plaintiffs' injury." Amended Complaint ¶ 11.11. Plaintiffs appear to claim that the State Bar defendants should have prosecuted disciplinary violations against Murray and that they violated plaintiffs' rights by denying or reducing claims made by plaintiffs against the Client Protection Fund to redress their losses at the hands of Murray. Plaintiffs seek compensatory and punitive damages and have also requested various forms of declaratory and injunctive relief relating generally to the administration of the practice of law in Virginia.

Defendants previously moved to dismiss this action as to all defendants. The Court granted the motion as to the State Bar and took the motion under advisement as to all other defendants. On November 21, 1994, the remaining defendants filed the a motion for summary judgment. The Court subsequently entered an Order granting plaintiffs fifteen (15) days from the date of the Order, November 22, 1994, to respond to the motion for summary judgment, yet plaintiffs failed to respond. The Court, having decided that the complaint is best disposed of on the pending motion to dismiss, does not address the motion for summary judgment.

Discussion

Defendants assert that dismissal is appropriate on a number of grounds. First, they claim that all parties are immune from suit in the circumstances alleged by plaintiffs. Defendants argue that the Virginia Supreme Court Justices are immune from suit under the doctrines of judicial and legislative immunity. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Hirschkop v. Virginia State Bar, 421 F.Supp. 1137 (E.D.Va.1976).

Defendants also raise the immunity issue in connection with the State Bar defendants. Defendants' position is that prosecutorial immunity and qualified official immunity shield these individuals from liability for failure to pursue disciplinary actions against Murray. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Williams v. Garrett, 722 F.Supp. 254 (W.D.Va.1989). Defendants also claim that the named State Bar officials are absolutely immune from liability for granting, denying, reducing, or otherwise adjudicating claims to the Client Protection Fund because such actions are quasi-judicial acts under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

In their second ground for attack, defendants claim that all defendants are entitled to immunity under the Eleventh Amendment. It is defendants' contention that plaintiffs' suit against these individually named defendants is, in reality, a suit against the state, and, as such, is clearly barred by the immunity afforded states and state agencies by the Eleventh Amendment. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978).

Defendants next raise the statute of limitations. They assert that all acts from which this suit arises had to have occurred prior to Murray's death in February of 1992. Defendants urge that because a two-year statute of limitations applies to civil rights actions arising in Virginia, plaintiffs' claim for monetary recovery, which was filed on May 23, 1994, is barred by the statute of limitations. See Williams v. Westbrook Psychiatric Hospital, 420 F.Supp. 322 (E.D.Va.1976).

Defendants further argue for dismissal with the contention that plaintiffs have failed to state a cause of action under 42 U.S.C. § 1983 because public employees do not owe the plaintiffs a legal duty of care. In support, defendants raise the public duty doctrine, under which a government employee's liability in tort cannot be premised on any duty he owes to the public at large. See Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902 (1990). It is defendants' position that plaintiffs attack defendants merely because they are government employees with responsibilities to administer and regulate the practice of law in Virginia and charge that defendants, in failing to perform these duties properly, breached a duty allegedly owed to the plaintiffs as members of the general public. Defendants contend that because these allegations would subject the officials to potential liability for every action they take, they present a classic case for the application of the public duty rule and fail to make out a claim under Section 1983.

Defendants also claim that plaintiffs have failed to make out a claim under the federal conspiracy statute, 42 U.S.C. § 1985 and RICO, 18 U.S.C. §§ 1961 et seq. Defendants urge that plaintiffs have not provided the factual showing of a common purpose among defendants which is required by Section 1985. American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); Buschi v. Kirven, 775 F.2d 1240, 1248 (4th Cir.1985).

Defendants also assert that plaintiffs have not alleged specific facts to support their RICO claim in that they cannot establish that defendants participated in any racketeering activities as prohibited by 18 U.S.C. § 1962, and they cannot show that the pattern of racketeering activity extended beyond the boundaries of Virginia into interstate commerce as required by the statute. 18 U.S.C. § 1962.

Finally, defendants argue that the claims raised by plaintiffs are without merit as they really seek to represent the interests of the general public. Defendants assert that plaintiffs cannot rest their claims to relief on the legal rights or interests of third parties. United States Dept. of Labor v. Triplett, 494 U.S. 715, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990)

Federal Rule of Procedure 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief may be granted. In reviewing a motion to dismiss, a court must take as true facts set forth in the complaint. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The motion should be granted only when it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts which could be proven in support of his claim. Islam v. Jackson, 782 F.Supp. 1111, 1113 (E.D.Va.1992).

The Court is of the opinion that defendants' motion to dismiss is well taken and that all claims should be dismissed.

Plaintiffs have raised claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988, civil RICO, and FOIA. The Court will address each claim individually.²

As an initial matter, although defendants did not specifically raise the FOIA claim in their motion to dismiss, the Court determines that it lacks jurisdiction to hear the claim. Plaintiffs have alleged that they are entitled to relief for a violation of FOIA, 5 U.S.C. § 552. FOIA requires that agencies of the United States Government make certain information available to the public upon request. 5 U.S.C. § 552(a). The statute grants jurisdiction to a district court of the United States to enjoin an agency from wrongfully withholding records which have been requested. 5 U.S.C. § 552(a)(4)(B). Plainti...