Marks v. U.S. Social Sec. Admin.

Page 517

963 F.Supp. 517

Louis A. MARKS, et al., Plaintiffs, v. UNITED STATES SOCIAL SECURITY ADMINISTRATION, et al., Defendants.

Civil Action No. 4:95cv0050.

United States District Court, E.D. Virginia, Newport News Division.

March 6, 1997.

Louis A. Marks, Jr., Hampton, VA, pro se.

Brenda J. Marks, Hampton, VA, pro se.

Jeremy S. Thompson, Hampton, VA, pro se.

Susan Lynn Watt, United States Attorney's Office, Norfolk, VA, for United States Social Security Administration, John Groover, U.S. Dept. of Veterans Affairs.

LaDale Kenneth George, Office of Attorney General of Virginia, Richmond, VA, James Stuart Gilmore, III, Attorney General of Virginia, Richmond, VA, William Henry Hurd, Richmond, VA, Jane D. Hickey, Office of the Attorney General, Richmond, VA, for Commonwealth of Virginia, Department of Rehabilitative Services.

William Henry Hurd, Richmond, VA, Michael Paul Curreri, Bryan A. Fratkin, Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, VA, Margaret Alice Browne, Office of the Attorney General, Richmond, VA, LaDale Kenneth George, Office of Attorney General of Virginia, Richmond, VA, James Stuart Gilmore, III, Attorney General of Virginia, Richmond, VA, Jane D. Hickey, Office of the Attorney General, Richmond, VA, for Carolina Longa, MD, Luc Vinh, MD.

Donna J. Hall, Mays & Valentine, Norfolk, VA, Irma W. Merrill, Merrill, James & Merrill, Memphis, TN, for Bank of America, NT and SA, Boatman's National Mortgage Company.

Mary Christine Maggard, Shapiro and Burson, Virginia Beach, VA, for Shapiro and Burson Trading as Professional Foreclosure Corporation, Christine Patterson, Lori-Don MacNamee, Dana Powers.

Thomas Scott Carnes, Sykes, Carnes, Bourdon & Ahern, P.C., Virginia Beach, VA, for Long and Foster Realty, Lynn Therell, Bill Peiffer.

Alan Brody Rashkind, Furniss, Davis, Rashkind & Saunders, PC, Norfolk, VA, for A. Paul Burton.

MEMORANDUM OPINION AND ORDER

JACKSON, District Judge.

INTRODUCTION

On August 6, 1996, the United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part and remanded the above-styled case to this court. In view of its holding in Biggs v. Meadows, 66 F.3d 56 (4th Cir.1995), the Court of Appeals remanded this case for the limited purpose of addressing whether the appellants (plaintiffs) state a claim against Defendants Longa and Vinh in their individual capacities. On October 2, 1996, the Court of Appeals issued the mandate to this Court. Accordingly, it was ordered that the parties file briefs and/or dispositive motions addressing the question of whether plaintiffs state a claim against Defendants Longa and Vinh in their individual capacities. All parties have responded to the Court. Additionally, Plaintiffs have filed a Motion to Rehear, to which all defendants have responded. Thus, the matter is now ripe for judicial determination. For the reasons stated below, the Court FINDS that Defendants Longa and Vinh were not sued in their individual capacities. Accordingly, the motion to dismiss is GRANTED. The Motion to Rehear is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1992, Plaintiff Brenda Marks filed an application for disability benefits. The Social Security Administration (SSA) denied Ms. Marks' application for disability insurance benefits, and affirmed its decision on reconsideration. Upon Ms. Marks' request for a hearing by an Administrative Law Judge on November 18, 1993, the Office of Hearings and Appeals notified her that a hearing would be scheduled at a later date because of the volume of pending requests for hearing at that office. In April 1994, before the hearing could be scheduled, the Virginia Department of Rehabilitative Services Disability Determination Service reversed the denial. Since then, Ms. Marks has received retroactive benefits and regular monthly disability benefits. Thirteen months passed between Ms. Marks' application for benefits and the SSA's granting of those benefits. Plaintiff Brenda Marks, her husband Louis Marks, and Ms. Marks' son, Jeremy Thompson claim that the delay in hearing Ms. Marks' claim and the continued denial of benefits resulted in the foreclosure on their property.

On April 27, 1995, Plaintiffs filed this action. Each plaintiff claimed $500,000.00 in punitive and compensatory damages against the following defendants: the SSA, John Groover (manager of the Hampton Administration office), Virginia Department of Rehabilitative Services ("the Department"), Dr. Longa and Dr. Vinh (two employees of the Department), Department of Veteran's Affairs ("the VA"), Bank of America, Boatman's National Mortgage Company, Shapiro & Burson, Christine Patterson, Lori-Don MacNamee, and Dana Powers (three lawyers who work for Shapiro & Burson), Long & Foster Realty, Lynn Therell and Bill Peiffer (two employees of Long & Foster), and A. Paul Burton (City Attorney for the City of Hampton).

Defendants each moved to dismiss the action pursuant to Rule 12(b)(1) and this Court granted the motion finding that federal jurisdiction did not exist over Claim (1) under 42 U.S.C.A. § 405(g), 1983 (West 1994 & Supp. 1996) or 28 U.S.C. § 1331 (1988). Plaintiffs appealed that decision. The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of all defendants and claims except with regard to Defendants Longa and Vinh. On appeal, the Court found that this Court had not addressed the recent decision in Biggs v. Meadows, 66 F.3d 56 (4th Cir.1995), which holds that in order to state a cause of action under § 1983, a plaintiff is not required to plead expressly the capacity in which he is suing a defendant. The Fourth Circuit remanded the case for the limited purpose of addressing whether Plaintiffs state a cause of action against Defendants Longa and Vinh in their individual capacities.

II. LEGAL STANDARD

Under the standard adopted by the United States Court of Appeals for the Fourth Circuit in Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir.1995), the Court must examine various factors to determine whether a state official is being sued in a personal capacity when the Plaintiff does not allege such capacity specifically. Id. at 61. In Biggs, the court pointed to a number of factors that might indicate that a suit was filed in such a manner, including "the plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom, or the lack of indicia of such a policy or custom on the face of the complaint," "the Plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits," and "[t]he nature of any defenses raised in response to the complaint ... [b]ecause qualified immunity is available only in a personal capacity suit [and] the assertion of that defense indicates that the defendant interpreted the Plaintiff's action as being against him personally." Id. (citations omitted). "Throughout, the underlying inquiry remains whether the Plaintiff's intention to hold a defendant personally liable can be ascertained fairly." Id.

III. DISCUSSION¹

A. Individual Capacity

The court in Biggs first pointed to a plaintiff's failure to allege that the defendant acted in accordance with a governmental policy or custom as indicative of an intention to sue defendants in their individual capacity. In their Complaint, Plaintiffs do not allege an official policy or custom. Plaintiffs argue in their Memorandum addressing the issue of individual liability submitted after remand:

Plaintiff, where citing statute and policy, has at all times represented the actions of these defendants to be a violation of statute and policy. As the Plaintiffs recognize the actions to be a violation of statute and policy, actions would be outside of official duties, clearly an indication of Plaintiffs' desire for this Court to address the individual accountability of these two defendants.

(Pls.Mem. at 2.) The Court construes this argument as misinterpreting the significance of the allegation of official policy and custom to the issue of capacity. Where a plaintiff sues a state defendant and alleges that there was a policy or practice of violating citizen's rights, that allegation weighs against individual capacity in favor of official capacity. Where there is no indicia of such a policy or custom on the face of the complaint, then the complaint might be interpreted as suing the defendants in their individual capacity. Thus, the argument presented above does not speak directly to the factor pointed to in Biggs except to the extent that it asserts that the actions for which the Plaintiffs are suing were outside the scope of official duties because they were allegedly violations of state statute and policy.² Such an argument is relevant to the question of capacity. However, Plaintiffs contradict this inference with the statement that "[t]he Court has jurisdiction in this matter in that all defendants named were acting in their capacities as an agent for an agency or division of the United States of America." (Pls.' Resp. to Mot. to Dismiss at 1) (emphasis added). The Court finds that no inference can be drawn from the Plaintiffs' allegations that Defendants Longa and Vinh violated statute and arguably violated policy in the face of the contradictory language found in the Plaintiffs' Response to the Motion to Dismiss.

The Court in Biggs next pointed to the Plaintiff's request for compensatory or punitive damages, since such relief is unavailable in official capacity suits. Plaintiffs argue that because they sought both punitive and compensatory damages from these defendants, a clear indicator exists that the defendants were being sued in their individual capacity. However, Plaintiffs sought monetary relief in the form of compensatory and punitive damages against all defendants indiscriminately. Just as Plaintiffs derive a claim for compensatory and punitive damages against Defendants Longa and Vinh from their general ad damnum clause, this Court...