Lesueur–richmond Slate Corp.. v. Fehrer

• Decision Date: 03 November 2010
• Docket Number: Case No. 6:09cv00068.
• Citation: 752 F.Supp.2d 713
• Parties: LeSUEUR–RICHMOND SLATE CORPORATION, Plaintiff,v.Damien C. FEHRER, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

752 F.Supp.2d 713

LeSUEUR–RICHMOND SLATE CORPORATION, Plaintiff,
v.
Damien C. FEHRER, et al., Defendants.

Case No. 6:09cv00068.

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

Nov. 3, 2010.

[752 F.Supp.2d 714]

David P. Mitchel, Michael John Brickhill, Michael J. Brickhill PC, Appomattox, VA, for Plaintiff.Stephen Michael Hall, Attorney General of Virginia, Karri Byers Seaman Atwood, Office of the Attorney General, Richmond, VA, for Defendants.

Memorandum Opinion NORMAN K. MOON, District Judge.

Plaintiff LeSueur–Richmond Slate Corporation (“LeSueur” or “Plaintiff”) brings this action to recover damages pursuant to 42 U.S.C. § 1983, the Fourth Amendment to the United States Constitution, Article I, § 11 of the Constitution of Virginia, and Va.Code § 19.2–59. Plaintiff alleges that defendants Damien C. Fehrer (“Fehrer”) and Vernon L. Harris (“Harris”), mineral mine inspectors with Virginia's Department of Mines, Minerals, and Energy (“DMME”); defendant James E. Smith (“Smith”), mineral mine inspector supervisor with DMME; and defendant Conrad T. Spangler (“Spangler”), director of the DMME's Division of Mines and Minerals (collectively “Defendants”) engaged in repeated, illegal warrantless searches of Plaintiff's property during 2007 and 2008.

Defendants now move to dismiss on the basis of several theories: (1) claim preclusion; (2) Younger abstention; (3) qualified immunity; and (4) failure to state a claim. While I do not address the claim preclusion and Younger abstention theories, I find that Plaintiff fails to state a claim. For the reasons set forth below, I find that the warrantless searches in issue here are constitutional and Defendants are entitled to qualified immunity. Accordingly, Defendants' motion to dismiss will be granted with prejudice in an accompanying order.

I.

DMME is the Virginia administrative body charged with enforcing Title 45.1 of the Virginia Code, which provides the law governing mines and mining in the Commonwealth. Within DMME, the Division of Mines and Minerals is specifically responsible for enforcing the Mineral Mine Safety Act, Va.Code § 45.1–161.292:1 et seq. (the “MMSA”). In general, the MMSA provides that surfaces mineral mines that are inspected by the federal Mine Safety and Health Administration shall not be subject to inspection by the DMME. Va.Code § 45.1–161.292:54B. However, DMME “inspectors and other employees may enter such mines in order to ... respond to complaints of violations of [the MMSA] and Chapters 14.5 (§ 45.1–151.293 et seq.) and 14.6 (§ 45.1–161.304 et seq.) [of Title 45.1 of the Virginia Code].” Va.Code. § 45.1–161.292:54B. Under the DMME's Procedures Manual, in responding to a complaint “the mine inspector will inform the operator ... of the nature of the complaint and the intention to conduct an investigation.” Compl. Ex. D. The Procedures Manual also requires that:

When investigating a safety complaint, the mine inspector will make effort to conduct the inspection so as not to divulge or direct attention to the complainant who will remain anonymous. This may require the inspection of a variety of equipment and areas other than those indicated in the original complaint.

[752 F.Supp.2d 715]

Id. Plaintiff alleges that, read together, these provisions effectively give DMME unfettered access to its property, in violation of its rights under the federal Constitution, the Virginia Constitution, and state law.

The inspections giving rise to Plaintiff's claims followed five separate anonymous complaints.¹ Following the first such complaint on December 13, 2007, defendant Fehrer conducted a wide ranging investigation of the LeSueur property on December 21, 2007. This “included inspections of the powder magazine and explosive transport truck and pit areas, review of MSHA citations, review of pre-shift, blasting, training and employee records, and interviews” with staff and management. Compl. ¶ 12. Still responding to the December 13 complaint, defendants Smith, Harris, and Fehrer entered the LeSueur property to review records and conduct additional interviews on four subsequent days, through January 15, 2008.

After DMME received the second anonymous complaint on January 3, 2008, Fehrer returned to the LeSueur property and “conducted an extensive and general inspection of its mining and manufacturing facilities.” Compl. ¶ 16. DMME received another complaint on January 14, 2008. In response, Smith, Harris and Fehrer conducted an investigation spanning seventeen hours, and spread over four separate days, whereupon they inspected equipment and records, and conducted employee interviews. The final inspection in response to the January 14 complaint was on March 12, 2008. During the same period, defendant Spangler, as director of the Division of Mines and Minerals, made clear to Plaintiff that he “unequivocally supported” the conduct of the inspectors. Compl. ¶ 23.

Following a fourth complaint on March 7, 2008, Fehrer and Harris again conducted inspections spanning four separate days. Plaintiff characterizes these inspections as an “extensive and intrusive review of the company's property, equipment, practices and paperwork.” Compl. ¶ 26. After a final complaint on April 6, 2008, Fehrer, accompanied by Harris on all but one occasion, made eight additional entries on the LeSueur property from April through June 2008.

Defendants conducted their investigations under color of state law. Plaintiff alleges that during each inspection of the LeSueur property, Defendants wore the uniform of the Division of Mines and Minerals, and other symbols of state authority. Compl. ¶ 10. In correspondence between Spangler and Plaintiff, Spangler defended his staff's action as consistent with the Mineral Mine Safety Act. During one of the inspections following the March 7 complaint, Harris allegedly told a LeSueur official, “state law regarding our authority is very broad and we can do anything we think is needed.” Compl. ¶ 28.

II.

The purpose of a motion to dismiss under Rule 12(b)(6) is “to test the legal sufficiency of a complaint, rather than the facts alleged in support of it....” Hall v. Virginia, 385 F.3d 421, 427 (4th Cir.2004). Therefore, in considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff.

[752 F.Supp.2d 716]

Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Christopher v. Harbury, 536 U.S. 403, 406, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); see also Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir.2005). A complaint should not be dismissed “unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief.” Hall, 385 F.3d at 427 (quoting Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)).

In Count I of the complaint, Plaintiff seeks relief under 42 U.S.C. § 1983, which provides a civil action against any person who, under color of state law, subjects another person to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Plaintiff alleges that the MMSA's warrantless surface mine inspection program violates the Fourth Amendment prohibition of unreasonable searches and seizures. In Count II, Plaintiff seeks relief under Va.Code § 19.2–59, which provides a right of action for “any person aggrieved” by the warrantless “search [of] any place, thing or person.” Under Virginia law, it is well established that a court must “harmonize apparently conflicting statutes to give effect to both.” Boynton v. Kilgore, 271 Va. 220, 229, 623 S.E.2d 922 (2006). Therefore, this court must read Va.Code § 19.2–59 in light of the MMSA's explicit provision for warrantless inspection of surface mines.

Consequently, the legal sufficiency of Counts I and II depends on whether the MMSA's warrantless inspection program shields Defendants from liability. Defendants will be so shielded if they are entitled to qualified immunity. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, the disposition of both Counts I and II turns on whether the MMSA's warrantless inspection program is “clearly” unconstitutional within the meaning of Harlow. Unless it is clearly unconstitutional, Plaintiff has no legal right to recover under Section 1983 or on the related state law claim.

A.

When evaluating a qualified immunity claim, the district court should generally first determine whether a right “would have been violated on the facts alleged; [and] ... second ... whether the right was clearly established.” Smith v. Smith, 589 F.3d 736, 739 (4th Cir.2009) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); But see Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (finding this sequential analysis “often appropriate” but not mandatory). Thus, I turn first to considering whether Plaintiff would establish a violation of rights on the facts alleged. Although it is a close question, I ultimately conclude that the warrantless inspection program at issue...