CHARLESTON – The City of Gilbert is arguing there is no reason it should be included as a defendant in the civil rights lawsuit against former Mingo County Circuit Court Judge Michael Thornsbury.
The City filed its motion to dismiss and accompanying memorandum in support on Nov. 14 in Robert Woodruff’s case against it and several others. Woodruff is the man who is alleged to have been the target of a conspiracy headed by Thornsbury.
Allegedly, Thornsbury was pursuing a romantic relationship with his secretary, who is Woodruff’s wife. Thornsbury has pleaded guilty to a different civil rights scheme and is awaiting sentencing.
“Plaintiff has not alleged any facts involving the City of Gilbert or even attempted to articulate why the City of Gilbert is a necessary party,” the City’s memorandum says.
“Accordingly, the Plaintiff has failed to state a claim against the City of Gilbert. The only reference to the City of Gilbert in the body of Plaintiff’s complaint is in paragraph 8 wherein the Plaintiff asserts ‘The City of Gilbert, West Virginia, is a political subdivision with its principle place of business at P.O. Box 188, Central Avenue, Gilbert, West Virginia 25621.
“Throughout the body of Plaintiff’s Complaint, the Plaintiff makes no further allegation against Defendant the City of Gilbert or alleges that the City of Gilbert committed any act or failure to act.”
Other defendants in the lawsuit, which was filed Sept. 30, are Thornsbury; Jarrod Fletcher; Steve Canterbury, the administrator of the state Supreme Court; Trooper Brandon Moore; Colonel Jay Smiths, commander of the State Police; Jeff Cline; Officer Nathan Glanden; and the commissioners of the Mingo County Commission.
In addition to the City of Gilbert’s, five other motions to dismiss have been filed. They were filed by Thornsbury, Glanden, Moore, Smithers and Canterbury.
Thornsbury is claiming the civil complaint was not served on him properly.
“In this matter, the plaintiff has served a copy of the summons and complaint on the wrong address and upon a person who was not an agent of Mr. Thornsbury’s,” the memorandum in support of his motion to dismiss says.
“Therefore, Mr. Thornsbury has yet to be served. While Mr. Thornsbury did formerly live at the address where service was attempted, he moved out of that address into another residence.
“He has not visited or slept at the residence, nor has he kept any of his personal belongings at the location since on or before Oct. 3, 2013.”
As a result, the complaint should be dismissed, attorney Philip B. Sword of Shuman, McCuskey & Slicer in Charleston argues.
Woodruff was referred to as R.W. in an indictment filed against Thornsbury filed by U.S. Attorney Booth Goodwin. On Oct. 2, Thornsbury pleaded guilty to charges in an information alleging a second scheme and resigned. He faces a maximum penalty of 10 years imprisonment.
Woodruff’s complaint says his wife was subjected to sexual harassment.
Woodruff said he was only recently made aware of the scheme to deprive him of his rights and the attempt to seduce his wife.
Goodwin alleged Thornsbury instructed a co-conspirator to plant illegal drugs under Woodruff’s truck. Goodwin alleged this happened after the secretary broke off a romantic relationship with Thornsbury, though Woodruff’s complaint says his wife resisted the advances.
However, the co-conspirator backed out of the plan at the last minute, Goodwin alleges.
Thornsbury then told a state trooper to file a criminal complaint against Woodruff, the indictment says. The indictment alleged Woodruff was stealing scrap metal from his employer, even though Woodruff had permission to salvage the metal.
A criminal complaint was filed against Woodruff in December 2008.
Thornsbury presided over the grand jury in January 2009 and picked Fletcher, the county’s director of Homeland Security and Emergency Management with whom he co-owned real estate and a wine shop, as jury foreperson.
Goodwin alleges Thornsbury was able to co-opt the grand jury’s authority and used it to victimize Woodruff. He created a set of subpoenas that ordered Woodruff’s employer and other local companies to surrender private documents, Goodwin says.
One company resisted and discovered the business ties between Thornsbury and Fletcher, the indictment says. Thornsbury eventually abandoned his plan to use the grand jury against Woodruff, it says.
In 2012, Woodruff was charged with assault and battery. He had been involved in an altercation with two other men, one of whom drew a gun. The charges against the two men were dismissed, and Thornsbury told the county prosecutor to ensure Woodruff received six months’ home confinement, the indictment says.
After Woodruff refused a plea deal, the prosecutor dismissed the case on the eve of trial.
Woodruff is represented by Michael O. Callaghan of Neely & Callaghan in Charleston.
Canterbury says he is entitled to Eleventh Amendment immunity, because the amendment prohibits damages suits in federal court against a government official in his or her official capacity.
Canterbury says he was only sued in his official capacity, and that the complaint made no specific allegations toward him.
“(T)he plaintiff must establish that the employer or supervisor engaged in unconstitutional conduct,” the memorandum says.
“The plaintiff has made no such showing in the present case.”
Canterbury is represented by Stephanie J. Shepherd of Hedges Lyons & Shepherd in Morgantown.
The City of Gilbert is represented by John P. Fuller of Bailey & Wyant in Charleston.
From the West Virginia Record: Reach John O’Brien at email@example.com.