Marshall v. Marshall

Decision Date01 March 2021
Docket NumberCivil No. 3:20cv442 (DJN)
Parties Cynthia Advani MARSHALL, Plaintiff, v. John MARSHALL, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

Victor Michael Glasberg, Nickera Simone Rodriguez, Victor M. Glasberg & Associates, Alexandria, VA, for Plaintiff.

Justin Saunders Gravatt, Caroline V. Davis, Duane Hauck Davis Gravatt PC, Richmond, VA, for Defendant John Marshall.

Samuel Keith Barker, Law Offices of S. Keith Barker PC, Glen Allen, VA, for Defendant Robert Marshall.

Irving Michael Blank, George Owen Young Naylor, Blank & Marcus LLC, Richmond, VA, for Defendant Andrea Marshall Voehringer.

John David McChesney, Henrico County Attorney's Office, Henrico, VA, for Defendant T.W. Holmes.


David J. Novak, United States District Judge

Plaintiff Cynthia Advani Marshall ("Plaintiff") brings this action against Defendants T. W. Holmes ("Officer Holmes") and John Marshall, Robert Marshall, Brenda Marshall Thompson, and Andrea Marshall Voehringer (collectively, the "Marshall Defendants"), alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and common law property principles. This matter now comes before the Court on the Motions to Dismiss (ECF Nos. 27, 30, 32, 34, 36) filed by Officer Holmes and the Marshall Defendants.

For the reasons set forth below, the Court hereby DENIES Officer Holmes’ Motion to Dismiss (ECF No. 27), Andrea Marshall Voehringer's Motion to Dismiss (ECF No. 32), John Marshall's Motion to Dismiss (ECF No. 34) and Robert Marshall's Motion to Dismiss (ECF No. 36). However, the Court hereby GRANTS Brenda Marshall Thompson's Motion to Dismiss (ECF No. 30) and DISMISSES WITHOUT PREJUDICE all claims against her.


At this stage, the Court must accept as true the facts set forth in the Complaint (ECF No. 1). Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Against this backdrop, the Court accepts the following facts as alleged for purposes of resolving the instant Motions.

A. Factual Background

In 2015, Plaintiff married Watson Melton Marshall ("Mr. Marshall") after he divorced his first wife in 2014 after 58 years of marriage. (Compl. ¶¶ 2, 6.) Mr. Marshall had four children with his first wife: John Marshall, Robert Marshall, Brenda Marshall Thompson and Andrea Marshall Voehringer. (Compl. ¶ 4.) At the time of their father's marriage to Plaintiff, Andrea Voehringer resided in Pennsylvania, and the remaining three children resided in Virginia. (Compl. ¶ 4.) John Marshall serves as a judge of the Henrico County Circuit Court in Virginia. (Compl. ¶ 9.)

During their marriage, Mr. Marshall and Plaintiff resided in Plaintiff's home, which Plaintiff conveyed to herself and Mr. Marshall as tenants by the entirety following their marriage. (Compl. ¶¶ 7-8.) Over the next several years, Mr. Marshall's relationship with his four children steadily declined due to their "relentless hostility" towards Plaintiff and the children's ongoing frustration regarding the circumstances of their father's marriage to Plaintiff. (Compl. ¶¶ 9-10.) Their relationship became so fractious that, eventually, Mr. Marshall communicated to his children that he would not see them without Plaintiff present. (Compl. ¶ 10.) John Marshall agreed to "abide by this rule," but indicated that he would no longer see his father because of it. (Compl. ¶ 10.) Mr. Marshall's relationship with his other children similarly deteriorated in the ensuing years. (Compl. ¶ 12.)

In the spring of 2018, Mr. Marshall's health began to decline. (Compl. ¶ 13.) He started to refuse food and drink and began to experience breathing difficulties. (Compl. ¶¶ 13-15.) Eventually, in June of 2018, Mr. Marshall was admitted to Virginia Commonwealth University Hospital for treatment, where he remained hospitalized for several days. (Compl. ¶ 15.) At that time, Mr. Marshall completed a Virginia Advance Directive for Health Care, appointing Plaintiff as his agent to make health care decisions for him. (Compl. ¶ 17.)

Mr. Marshall was readmitted to the hospital on July 18, 2018, after his condition again deteriorated. (Compl. ¶ 18.) Mr. Marshall suffered from several episodes of irrationality and disorientation during his hospitalization. (Compl. ¶ 19.) Plaintiff opted to stay with him in the hospital room on several occasions during this stay in an attempt to help mitigate his symptoms and disorientation. (Compl. ¶ 20.)

According to Plaintiff, on the morning of July 21, 2018, after Plaintiff had spent the night at her husband's bedside, one of Mr. Marshall's daughters, Andrea Voehringer, arrived at the hospital to visit her father. (Compl. ¶ 22.) Andrea suggested that Plaintiff go home and take a break from her hospital duty. (Compl. ¶ 22.) Plaintiff agreed. (Compl. ¶¶ 22-23.)

However, unbeknownst to Plaintiff, this suggestion represented a mere "ploy" to remove her from the hospital room so that Andrea, Robert and John Marshall could secure legal decision-making power for their father and initiate a plan to remove Plaintiff from their father's life. (Compl. ¶ 23.) Specifically, during Plaintiff's absence, the Marshall Defendants summoned a family lawyer to their father's hospital room, where this lawyer proceeded to execute new versions of various legal documents including: (1) a new advance medical directive naming John and Robert as Mr. Marshall's medical agents; and, (2) a new general durable power of attorney that revoked the powers of attorney previously granted to Plaintiff and granted power of attorney, "as broad as possible," to John and Robert. (Compl. ¶ 24.) "[A]n enfeebled Mr. Marshall — he died August 8, 2018 — unable to write properly, affixed his mark" to these documents. (Compl. ¶ 25.)

The Marshall Defendants used this new authority to take several legal steps on their father's behalf. First, on July 23, 2018, two days after the execution of the aforementioned documents, the Marshall family lawyer filed a complaint in the Henrico County Circuit Court, seeking a divorce for Mr. Marshall from Plaintiff. (Compl. ¶ 26.) Mr. Marshall did not sign or mark this document. (Compl. ¶ 26.) Second, using their power of attorney, the Marshall defendants directed the hospital staff and Mr. Marshall's doctor to prevent Plaintiff from accessing her husband. (Compl. ¶ 28.)

Despite these orders, Plaintiff visited her husband on July 25, 2018, believing that the hospital could not bar her from seeing her husband other than by a court order. (Compl. ¶ 29.) However, during her visit, Brenda Thompson discovered Plaintiff in her father's room and told Plaintiff "that she was ‘not supposed to be there.’ " (Compl. ¶ 31.) A nurse then told Plaintiff that she needed to leave. (Compl. ¶ 31.) Hospital security was called, and upon their arrival, they informed Plaintiff that she was not on Mr. Marshall's list of permitted visitors and, as such, she had to leave. (Compl. ¶ 32.) Any further attempt to visit her husband would constitute trespassing. (Compl. ¶ 32.) This visit represented the last time that Plaintiff saw her husband alive. (Compl. ¶ 34.)

The Marshall Defendants also sought an emergency protective order ("EPO") that would secure Mr. Marshall's isolation from his wife and prevent Plaintiff from entering her home, so that the Marshall Defendants could enter the home and "take what they saw fit." (Compl. ¶ 35.) According to Plaintiff, the Marshall Defendants failed to obtain a statement from their father supporting the protective order application, so, instead, they "secured the assistance of an officer with the Henrico County Police Department, defendant T.W. Holmes, to obtain an emergency protective order for them." (Compl. ¶¶ 36-37.) Robert prepared a criminal complaint and affidavit alleging that Plaintiff posed a threat to Mr. Marshall's well-being, and Officer Holmes filled out a supplementary criminal complaint against Plaintiff based on Robert's affidavit. (Compl. ¶ 40.) They certified that Mr. Marshall, " ‘in hospital/hospice care,’ was ‘physically or mentally incapable of filing a petition’ " for the EPO on his own behalf. (Compl. ¶ 28.)

On July 26, 2018, shortly after 10 p.m., Robert and Officer Holmes appeared before Magistrate Sara Munoz of the Henrico Juvenile and Domestic Relations Court to seek the emergency protective order. (Compl. ¶ 41.) According to Plaintiff, "it was highly unusual for such an application to be made and immediately granted after 10 p.m., in circumstances where there was no apparent immediate threat to the person intended to be protected," and that "to secure the order, defendants traded on the fact that one of the persons supporting the proposed order was a Henrico Circuit Court judge." (Compl. ¶ 42.) According to Plaintiff, Robert and Officer Holmes also used Mr. Marshall's "dead letter" divorce case as an exhibit to their motion for the EPO. (Compl. ¶ 43.)

The magistrate issued the EPO just after 10 p.m., with an expiration date of July 30, 2018, at 11:59 p.m. (Compl. ¶ 53.) The EPO included a provision prohibiting Plaintiff from having any contact with Mr. Marshall and another provision granting Mr. Marshall possession of the marital home shared by Plaintiff and Mr. Marshall to the exclusion of Plaintiff. (Emergency Protective Order (ECF No. 1-5).) Plaintiff contends that Robert and Officer Holmes "solicited and received" the EPO containing this exclusion provision despite "[k]nowing that Mr. Marshall was expected to remain in his VCU hospital bed for at least the duration of their proposed emergency protective order; [and] knowing that during this period, not to say for a considerably longer period of time, there was no chance that he might return to the home he shared with his wife." (Compl. ¶ 46.)

Shortly after 11 p.m., Officer Holmes and two other Henrico County police officers arrived at Plaintiff's home and served her with the protective order. (Compl. ¶ 54.) They informed her...

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