Schilling v. Washburne

592 F.Supp.3d 492

Robert SCHILLING, Plaintiff,

v.Richard WASHBURNE, et al., Defendants.

Case No. 3:21-cv-00022

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

Signed March 18, 2022

Matthew Daniel Hardin, Hardin Law Office, Washington, DC, for Plaintiff.

Jim H. Guynn, Jr., Guynn & Waddell, PC, Salem, VA, for Defendants Leo Mallek, Lawrence Bouterie.

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

Plaintiff Robert Schilling alleges that two poll workers and the Chief Elections Officer of the Woodbrook Precinct in Albermarle County attempted to prevent him from voting in the June 2021 Democratic primary because they knew him to be a Republican radio personality and outspoken critic of the Albermarle County Board of Supervisors. Dkt. 31 ("Amended Complaint") ¶ 42. Specifically, Schilling alleges that Defendants used the pretext of a non-existent mask mandate to temporarily block his access to the voting machines, id. , thereby violating his constitutional and statutory voting rights and committing various intentional torts, id. at ¶ 1.

Defendant and Chief Elections Officer Leo Mallek has moved to dismiss Schilling's suit. Dkt. 6. Mallek argues that even should Schilling's allegations prove true, he will not have committed a federal rights violation or a tort. Dkt. 7 pp. 1–2. The Court disagrees. Because Schilling has stated claims under 42 U.S.C. § 1983 and state tort law, the motion to dismiss will be denied with respect to those counts. But it will be granted with respect to Schilling's putative Voting Rights Act claim because the provision Schilling invokes does not create a private cause of action.

I

The following facts are alleged in Schilling's amended complaint and assumed true for purposes of resolving this motion. See King v. Rubenstein , 825 F.3d 206, 212 (4th Cir. 2016) (explaining standard of review).

Plaintiff Robert Schilling is a local conservative radio host and internet journalist. Amended Complaint ¶ 2. Prior to election day in Virginia's Democratic primary, Schilling wrote Richard Washburne, the General Registrar of Voters in Albermarle County, and received confirmation that he would not be required to wear a mask to vote. Id. at ¶ 23.

However, upon entering Woodbrook Precinct on election day, Schilling was stopped by Defendant Leo Mallek, the Woodbrook Precinct's Chief Officer of Election, id. at ¶ 3, and asked to put on a mask before proceeding, id. at ¶ 25. Schilling declined to do so. Id. at ¶ 26. At some point during their interaction, Mallek lowered his own mask. Id. at ¶ 27. Schilling asked for Mallek's name, but Mallek did not give it. Id.

Subsequently, Defendant David Carey, a poll worker, id. at ¶ 5, approached Schilling from behind and physically blocked his path to the polling area. Id. at ¶ 29. Carey attempted to convince Schilling to leave the building. Id. at ¶ 30. When Schilling tried to walk around Carey instead, Carey stepped in front of Schilling, causing their bodies to make contact. Id. at ¶ 30. Carey then grabbed Schilling's arm and/or shoulder. Id. Schilling exclaimed, "You cannot block me from voting! Take your hands off me!" Id. at ¶ 31. Once Carey's hands were removed, Schilling proceeded around Carey into the polling area. Id. Though the interaction with Carey took place in Mallek's presence, Mallek did not at any point express any objection to Carey's actions. Id. at ¶ 30.

Once inside the polling area Schilling was approached from behind by Defendant Lawrence Bouterie, another poll worker. Id. at ¶¶ 6, 32. Bouterie put his hands on Schilling's arm and/or shoulder and demanded that Schilling follow him. Id. at ¶ 33. Schilling again stated, "Don't touch me!" Id. at ¶ 34. Bouterie responded, "We're going outside." Id. at ¶ 35. Schilling continued to refuse, stating "I'm not going outside. You can't tell me I can't vote." Id. Another poll worker placed a call to Washburne and loudly stated, "We have a problem! We have a voter who refuses to wear a mask!" Id. at ¶ 36.

Schilling was ultimately permitted to vote. Id. at ¶ 37. But he claims he was delayed five minutes by the events described above. See id. at ¶¶ 37, 40 (Schilling estimates he could have voted within two minutes if not delayed, but because of his confrontation with Defendants a total of seven minutes elapsed from the time he entered the precinct to the time he cast his vote).

Schilling also alleges that his criticism of the Board of Supervisors in Albermarle County is well-known, id. at ¶ 2, that Mallek's wife is a member of that Board, id. at ¶ 3, and that Mallek is aware of Schilling's criticisms, id. at ¶ 42. Schilling further alleges that these facts, alongside Carey's and Bouterie's willingness to make close bodily contact, as well as Mallek's removal of his own mask, support an inference that the Defendants' purported concern with enforcing a mask mandate was pretext and that their true motivation was to prevent Schilling from voting in retaliation for his political activism. Id. at ¶¶ 41–42. See also id. at ¶ 8 (alleging that Mallek and his codefendants acted "in concert and with a common purpose").

II

"A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the claims pled in a complaint." ACA Fin. Guar. Corp. v. City of Buena Vista, Va. , 917 F.3d 206, 211 (4th Cir. 2019). A complaint is considered sufficient if it alleges facts that, taken as true, plausibly state a claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Only facts can render a claim for relief plausible. "[F]ormulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Nor is it sufficient for a plaintiff to plead facts merely consistent with liability. The plaintiff must plead enough factual content to nudge a claim across the border from mere possibility to plausibility. Id. at 570, 127 S.Ct. 1955. See also Francis v. Giacomelli , 588 F.3d 186, 193 (4th Cir. 2009).

III

As a threshold matter, the allegation that Mallek and his co-defendants acted with ulterior motives is itself an inference that should not be credited unless adequately supported by factual allegations. See Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ("[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."). See also Giacomelli , 588 F.3d at 193 (instructing courts to discount "unadorned conclusory allegations"); Jordan v. Alt. Res. Corp. , 458 F.3d 332, 338 (4th Cir. 2006) (reiterating that a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.") (internal quotation marks omitted). However, at the motion to dismiss phase, a plaintiff need only allege sufficient facts to render a proffered inference plausible, as opposed to merely possible. See Iqbal , 566 U.S. at 678–89, 132 S.Ct. 2073.

While this is a close case, the Court concludes that Schilling has pled sufficient facts to satisfy the liberal standards applicable to this motion and render plausible his allegation of subterfuge. In arriving at this determination, the Court relies on three factual allegations in particular: (1) that there was, in actuality, no applicable mask requirement; (2) that Schilling is a well-known critic of Mallek's wife; and (3) that Mallek removed his own mask while purportedly attempting to enforce a masking requirement.

But that is not the end of the analysis. The question remains whether Mallek's alleged conduct—including the inference that he acted to impede Schilling from voting because of Schilling's political activism—constitutes a federal rights violation or a tort under Virginia law.

Count One: Violation of Constitutional Right to Vote

In his first count, Schilling asserts a claim under 42 U.S.C. § 1983. Amended Complaint ¶¶ 43–53. That familiar statute creates a private right of action against "[e]very person who, under color of [state law], subjects, or causes to be subjected [any person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States]."

To state a claim under § 1983, "a plaintiff must establish three elements ...: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law." Jenkins v. Medford , 119 F.3d 1156, 1159–60 (4th Cir. 1997). Only the first requirement is at issue here.

Schilling claims that Mallek deprived him of his constitutional right to vote. Amended Complaint ¶ 46. Several constitutional amendments explicitly guarantee the right to vote against certain named forms of discrimination. See U.S. CONST. amend. XV, § 1 (forbidding abrogation or denial of right to vote on the basis of race, color, or previous condition of servitude); U.S. CONST. amend. XIX (forbidding abrogation or denial of right to vote on the basis of sex); U.S. CONST. amend. XXVI, § 1 (forbidding abrogation or denial of right to vote of those 18 and older on the basis of age). Another prohibits poll taxes in federal elections. U.S. CONST. amend. XXIV, § 1.

In addition to these explicit protections, the Supreme Court has repeatedly declared the right to vote, including the right to vote in a state primary election, to be a fundamental right secured by the Equal Protection Clause of the Fourteenth Amendment. See e.g., Reynold v. Sims , 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (explaining that "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."). Thus, it is clearly established that " ‘severe’ restrictions" on the right to vote are subject to strict scrutiny. Burdick v. Takushi , 504 U.S. 428, 434, 112 S.Ct. 2059, 119...