Docket – April 12, 2019

4th U.S. Circuit Court of Appeals

Lucas v. Henrico Cty. Pub. Sch. Bd. (U), 4th Cir. (per curiam) from EDVA at Richmond (Hudson).

The district court erred in concluding that it lacked subject-matter jurisdiction over the plaintiffs’ federal civil rights claims.

The plaintiffs, a parent and two education advocates, raised numerous claims against the Henrico County School Board and related defendants arising from a protest the plaintiffs staged at the parent’s child’s former elementary school. The school had involuntarily unenrolled him, which the plaintiffs attribute to disability discrimination. The protest led to the plaintiffs’ arrest and convictions for trespassing.

The relief the plaintiffs sought for their federal civil rights claims would have been against the defendants; it did not include modifying their state court convictions. Thus, the district court didn’t lack subject-matter jurisdiction under the Rooker-Feldman doctrine. Moreover, even if Younger abstention was proper, as the district court concluded, the district court should have stayed rather than dismissed the civil rights claims, because the plaintiffs sought damages as well as declaratory and injunctive relief. Finally, because the erroneous dismissal of all federal claims led the district court to decline supplemental jurisdiction over the plaintiffs’ state law claims, that portion of the judgment will be vacated.

However, the district court properly dismissed claims against Henrico prosecutors and a judge based on prosecutorial and judicial immunity.

Affirmed in part, vacated in part, and remanded.

U.S. District Court – Virginia Eastern

Khavkin v. Clarke, EDVA at Richmond (Payne).

The court will not dismiss the pending petition for habeas corpus. The petitioner contends that his trial counsel had a conflict of interest and that, as a result, counsel coerced him to plead guilty.

Sufficient evidence exists to show at this stage that trial counsel performed deficiently by operating under a potential conflict of interest. Counsel had previously represented a key witness in the case and failed to inform his client or put it on the record before the trial court. The evidence doesn’t establish an actual conflict, but the record is sufficient to necessitate a hearing because it’s difficult to understand why counsel wouldn’t disclose what clearly should have been disclosed.

The petitioner claims ineffective assistance in the forms of allegedly coercing a guilty plea and providing erroneous advice about the consequences of such a plea. The petitioner’s allegations that he didn’t understand the consequences of his plea are not credible because the trial court specifically advised him correctly as to the consequences, curing any allegedly deficient advice from counsel. However, the petitioner’s claims that he was coerced is not so frail. He says he made clear to counsel that he was not guilty and wanted to go to trial, but that counsel said they wouldn’t defend him because there was no chance to win the case and he would get a life sentence if he went to trial. The petitioner was made to understand that he had no alternative to entering into a plea agreement; this advice may have been borne of counsel’s conflict of interest.

The petitioner also may have received ineffective assistance of counsel during his state habeas proceedings. State habeas counsel clearly raised the claim that trial counsel had a conflict of interest and also induced the petitioner “to plead guilty to the crime of murder, notwithstanding that counsel had a conflict of interest.” However, state habeas counsel failed to plead all of the elements of a conflict of interest claim. Thus, the petitioner has made a sufficient preliminary showing on this point to necessitate an evidentiary hearing. Material facts remain in dispute regarding adequacy of counsel and whether the petitioner can demonstration prejudice.

Motion to deny habeas petition denied.

U.S. District Court – Virginia Western

Hairston v. Royal Bldg. Prods. Inc., WDVA at Abingdon (Jones).

Genuine issues of material fact remain in this employment discrimination case, in which the plaintiff claims that he lost his job due to racial animus. The employer claims that termination was a performance-based decision in a reduction in force following an acquisition.

Here, the plaintiff has presented direct evidence of racial discrimination, in the form of racial slurs allegedly used by other management-level employees about the plaintiff, who is black. One instance came immediately after the plaintiff’s termination, with the employee saying “we’re finally rid of” the plaintiff and referring to him with a racial slur.

While that employee didn’t personally make the termination decision, there was no sole decision-maker. Instead, the employee – who had at least some supervisory authority over the plaintiff – was one of a handful of people who provided input that resulted in the plaintiff’s negative performance evaluation, which led to his termination. A jury could infer that, when the employee gave his input about the plaintiff, he understood that the evaluation was for the purpose of reducing the workforce. These circumstances are sufficient to analyze the use of racial slurs as direct evidence of race discrimination. In the alternative, the slurs would allow a reasonable juror to conclude that the employer’s legitimate non-discriminatory explanation for the plaintiff’s termination was a pretext for race discrimination.

A reasonable juror could also find that the plaintiff’s termination was retaliation for reporting racial harassment. The plaintiff reported harassment to his supervisor, who suggested that the plaintiff respond by resigning and who recommended the plaintiff’s termination only two months later.

Finally, the plaintiff has offered sufficient evidence of a racially-hostile work environment that a jury should decide the employer’s liability for it. In two years of employment, the plaintiff received anonymous phone calls at work using racial slurs telling him to “leave here”; heard from other black employees that they experienced race-based animus from supervisors; was subjected to race-based jokes; was excluded from managerial meetings by white colleagues; and was denied company privileges that white managers received. Moreover, the plaintiff reported his concerns to his supervisors several times, yet the record contains no evidence that the company investigated allegations of racial animus or harassment during the plaintiff’s employment.

Motion for summary judgment denied.

Va. Indus. Plastics Inc. v. Cabinet Saver LLC, WDVA at Harrisonburg (Urbanski).

This suit arises from the name “cabinet savers,” which the parties both use to refer to plastic liners designed to protect kitchen sink cabinets and other surfaces from water damage. Both parties manufacture products of this description. The plaintiff has registered a trademark for use of the “Cabinet Saver” mark.

Contrary to the plaintiff’s argument, this matter can’t be resolved purely on the pleadings as presently filed. The defendant has denied numerous factual allegations in the complaint, some related to whether the defendant’s use of the mark has or is likely to cause confusion among customers. Denial of these assertions bars the court from granting judgment on the pleadings.

The defendant has also asserted a number of affirmative defenses, including that the plaintiff knew about the defendant’s use of the mark and attempted to hijack it in order to cause customer confusion, harming the defendant. These facts, while insufficient to support an assertion of fraud in the procurement, are sufficient to support the defense of unclean hands. With at least one affirmative defense minimally supported, judgment on the pleadings is inappropriate.

Motion for judgment on the pleadings denied.

Z.F. v. Adkins, WDVA at Big Stone Gap (Jones).

A middle school student may proceed in this case alleging that the defendant, a deputy sheriff and resource officer at the plaintiff’s school, unlawfully seized his person and seized and searched his cell phone, using excessive force.

The student alleges that, during his lunch period, the officer demanded his cell phone, without giving any reason and without any wrongdoing by the student. When the student didn’t comply, the officer escorted him out of the cafeteria. When the officer again demanded the phone but would not give a reason, the student said he was going to call his father and attempted to do so. The officer then allegedly tackled the student, restrained him by lying on top of him, and took his cell phone. The officer searched the phone but didn’t find evidence of illegal activity.

The facts indicate no reason to suspect the student of any wrongdoing before and during his interaction with the officer. The facts also don’t indicate that the student posed an immediate threat to anyone’s safety or that he was resisting the seizure. Moreover, these events occurred when the student was a 14-year-old middle school student attending school. Although further development of the facts may reveal that the officer’s seizure of the student and his phone and subsequent search of the phone satisfy the reasonableness standard, the student has stated facts at this stage sufficient to proceed with his Fourth Amendment claims.

As to the defendant’s motion for summary judgment, all of the evidence the defendant included in the motion is unsworn and unauthenticated. Further, summary judgment here is inappropriate before the student has had an opportunity for discovery.

Motions to dismiss and for summary judgment denied.

Categories: Daily Dockets

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