CHARLESTON – A lawsuit against the Logan County Board of Education has been dismissed from federal court, but the plaintiff’s attorney plans to re-file it.

Attorney Ben White says he plans to re-file the lawsuit next week. He said he’s had financial problems as a result of the economy and had to downsize his law practice.

“I have one part-time employee now and when I was doing well, I had six full-time employees,” White told the Charleston Gazette-Mail.

Duane J. Ruggier II of Pullin, Fowler, Flanagan, Brown & Poe, who represented the defendants, said if the case is re-filed, he and the other attorneys intent to oppose it.

“We intend to oppose the re-filing of the lawsuit and further defend the case vigorously on its merits, if so required,” Ruggier said.

Ruggier said before its dismissal, the lawsuit was only in its initial stage of litigation.

In District Judge Thomas E. Johnston’s Jan. 13 memorandum, he stated that when considering a party’s motion to dismiss for failure to prosecute pursuant to Rule 41(b), the court considers multiple factors, including the plaintiff’s degree of personal responsibility; the amount of prejudice caused by the defendant; the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and the effectiveness of sanctions less drastic than dismissal.

“These four factors are not meant to be applied as a rigid, formulaic test, but rather serve to assist the court, along with the particular circumstances of each case, in determining whether or not to grant a Rule 41(b) motion,” the memorandum states.

Johnston said that in the present case, there is no question that the plaintiffs have failed to prosecute their case, despite the defendants’ filing of numerous potentially dispositive motions and the court’s entry of an order specifically warning that the case would be dismissed unless adequate explanation was made for the plaintiffs’ non-participation in the case.

“Accordingly, dismissal of the action is appropriate not only because of plaintiffs’ total failure to prosecute their case, but also because that failure resulted in noncompliance with this court’s show cause order,” the memorandum states.

Application for the Fourth Circuit’s four-factor test compels this conclusion, according to the memorandum.

Based on the four-factor test, the defendants’ motion was dismissed without prejudice for failure to prosecute.

The defendants filed their motion to dismiss in October, after they claimed that, despite having filed the complaint in April, they did not begin to attempt service of process until at least August, when the summonses were submitted by the plaintiff to the court for issuance, according to the defendants’ Oct. 20 memorandum.

The defendants also claimed that the plaintiffs filed no responsive pleading or any motion seeking leave to file a pleading and failed to respond to motions, according to the memorandum.

The defendants included the Logan County Board of Education; Phyllis Adkins, former president of the board; William Davis, vice president of the board; Mark McGrew, current president of the board; Dr. Pat J. White, school board member; James Frye, school board member; Wilma Zigmond, school board superintendent; Ernestine Sutherland, principal of Logan Middle School; David L. Burroway, teacher at Logan Middle School; Howard Rockhold, teacher at Logan Middle School; Christopher Marcus, teacher at Logan Middle School; Anita Gore, secretary of Logan Middle School; and Logan Middle School.

On April 18, 2013, Jared Marcum, a 14-year-old eighth grader, wore a National Rifle Association of American pro-Second Amendment t-shirt to school, according to a complaint filed April 15 in the U.S. District Court for the Southern District of West Virginia.

Marcum's mother, Tanya Lardieri, claimed the shirt was olive green, bearing the NRA logo, had the words "Protect your right" and an image of a hunting rifle on it.

Marcum's shirt comported with the Logan Middle School student/parent handbook of policies in effect at the time, according to the suit.

Lardieri claimed while waiting in the lunch line in the school's cafeteria, Marcum was physically stopped by Gore, who placed her hand on Marcum's chest, stopping him from proceeding further, and advised him that his shirt violated school dress code and instructed him to turn the shirt inside out or face suspension from school.

Gore then summoned Burroway to view his shirt, stating to him that the shirt violated the dress code, and, at this point, Burroway agreed, according to the suit.

Lardieri claimed the order to turn the shirt inside out or face suspension was witnessed by Rockhold, who then grabbed Marcum's arm and escorted him to the principal's office.

The defendants' actions violated Marcum's First and 14th Amendments and violated other civil rights, according to the suit.

At the time, Marcum was charged with obstruction of justice after he refused to stop talking when a police officer asked him to. Logan Circuit Judge Eric O'Briant later dismissed that Thursday.

The defendants were represented by Ruggier and Jacob D. Layne of Pullin, Fowler, Flanagan, Brown & Poe.

U.S. District Court for the Southern District on West Virginia case number: 2:15-cv-4822

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