In Re: Mills v.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1024

In Re: JAMES M. MILLS, State Trooper, in both his official
and personal capacity; D. L. LEMMON, Superintendent of the
West Virginia State Police, in his official capacity,

Petitioners.

On Petition for Writ of Mandamus. (3:07-cv-00142-JPB)

No. 08-1032

BRENDA A. BOSELY, Administratrix of the Estate of James C.
Bosely, Deceased; BRENDA BOSELY,

Plaintiffs - Appellees,

v.

COLONEL D. L. LEMMON, Superintendent of the West Virginia
State Police, in his official capacity; JAMES M. MILLS, State
Trooper, in both his official and personal capacity,

Defendants - Appellants,

and

MINERAL COUNTY SHERIFF’S OFFICE; CHIEF DEPUTY SABIN, of the
Mineral County Sheriff’s Office, in both his official and
personal capacity; JOHN DOES 1-5, in both their official and
personal capacities,

Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cv-00142-JPB)

Argued: May 13, 2008 Decided: July 29, 2008

Before TRAXLER and GREGORY, Circuit Judges, and Alexander WILLIAMS,
Jr., United States District Judge for the District of Maryland,
sitting by designation.

Petition granted and affirmed by unpublished per curiam opinion.

ARGUED: (No. 08-1024) Lucien Garlow Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia; Perry Wayne Oxley, OFFUTT, FISHER &
NORD, Huntington, West Virginia, for Petitioners. John Christian
Yoder, Harpers Ferry, West Virginia, for Respondents.
(No. 08-1032) Jason Patrick Foster, STEPTOE & JOHNSON, Martinsburg,
West Virginia, for Appellants. John Christian Yoder, Harpers
Ferry, West Virginia, for Appellees. ON BRIEF: (No. 08-1024) Jason
P. Foster, STEPTOE & JOHNSON, Martinsburg, West Virginia, for
Petitioners. (No. 08-1032) Lucien G. Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Brenda A. Bosely (“Bosely”) brought this action on her own

behalf and as administratrix of the estate of the late Dr. James C.

Bosely. Originally filed in West Virginia state court, the suit

alleges various causes of action arising out of Dr. Bosely’s death

during the execution by two law enforcement officers of a mental

hygiene order. After removal of the action to federal district

court, the district court granted a motion by Bosely to remand the

case back to state court. The defendants now petition for a writ

of mandamus requiring the district court to retain jurisdiction

over the case. One defendant also appeals the denial of a motion

to dismiss the complaint on the grounds of absolute quasi-judicial

immunity and qualified immunity. We grant the mandamus petition

and affirm the denial of the motion to dismiss.

I.

According to Bosely’s complaint (“the complaint”), Bosely

swore out a mental hygiene complaint for her husband, Dr. Bosely,

alleging that he was suicidal and a danger to others. Bosely

alleges that West Virginia State Police Trooper James Mills and

Chief Deputy of the Mineral County Sheriff’s Office Paul Sabin

arrived at Dr. Bosely’s residence and took him into custody

pursuant to a mental hygiene detention order. The complaint

alleges that the officers “bashed Dr. Bosely’s head against the

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kitchen wall after taking Dr. Bosely into custody, leaving blood on

the kitchen wall.” (Complaint, ¶ 20). It also alleges that

shortly thereafter, “Dr. Bosely received a single gunshot wound to

his head” and that he was pronounced dead on the scene at

approximately 10:14 that morning. (Complaint, ¶ 21). The

complaint alleges that Mills and Sabin knew that Dr. Bosely had

guns in the house and that he was potentially a danger to himself

and others. It also alleges that at all relevant times, the

defendants were acting under color of state law. Finally, it

alleges that Superintendent of the West Virginia State Police

Colonel D.L. Lemmon was vested with authority and control of Mills

and is vicariously liable for his actions.

The complaint asserts causes of action pursuant to

42 U.S.C.A. § 1983 (West 2003), the West Virginia Constitution, and

West Virginia common law. Specifically, it alleges that the

defendants violated Bosely’s rights not to be deprived of life

without due process of law under the Fifth and Fourteenth

Amendments to the United States Constitution and Article 3, § 10 of

the West Virginia Constitution and his rights to be free from

unreasonable searches and seizures under the Fourth and Fourteenth

Amendments to the United States Constitution and Article 3, § 6 of

the West Virginia Constitution. It also asserts causes of action

for negligence and wrongful death.

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 The complaint names Lemmon and Mills (“the state defendants”)

as defendants in their official capacities as employees of the

State of West Virginia, up to the limit of the State’s insurance

policy. Mills is also named in his official capacity. Sabin is

named in both his individual and official capacities. And the

Mineral County Sheriff’s Office is the final named defendant.

The defendants removed the case to federal district court on

the basis of federal-question jurisdiction. See

28 U.S.C.A. §§ 1446, 1441, 1331 (West 2006). The state defendants

subsequently moved to dismiss the complaint on the basis of

absolute quasi-judicial immunity and qualified immunity. They also

asserted that official-capacity claims are not permissible under

42 U.S.C.A. § 1983, and that the complaint otherwise failed to

state a claim upon which relief could be granted. The state

defendants further asserted Eleventh Amendment immunity against the

official-capacity claims that were based on respondeat superior

principles.

Bosely took the position that the state defendants waived any

defense of Eleventh Amendment immunity when they removed her case

to federal court, and she therefore urged the district court to

retain jurisdiction over the entire case. Alternatively, citing

Morris v. Canterbury, 2:05-CV-1 (S.D. W. Va. May 2, 2005), she

suggested that if the district court concluded that the defendants

had not waived Eleventh Amendment immunity as a defense to the

5
official-capacity claims, the entire case should be remanded to

state court because the remaining state-law claims would

predominate and litigating the official-capacity claims in state

court and the other claims in federal court on the same facts would

be inconvenient.1

For their part, the state defendants maintained that they had

not waived Eleventh Amendment immunity by removing the case to

federal court and that the respondeat superior claims were barred

by the Eleventh Amendment. They also argued that neither

considerations of convenience nor the predominance of state-law

claims authorized a remand of the entire action back to state

court.

The district court granted Bosely’s motion to remand. The

entirety of the district court’s substantive analysis regarding

this decision was as follows:

In their Motion to Remand, plaintiffs cite Morris v.
Canterbury et al., 2:05-CV-1, (S.D.W.V. May 2, 2005), in
which the Southern District of West Virginia remanded all
causes of action to the Kanawha County Circuit Court.
The Court finds remand of all claims to be a suitable
disposition for the present case as well. The Court
questions the theory of removing the case based on
federal jurisdiction and then moving to dismiss the case
based on lack of jurisdiction. Because the State Court

1
Bosely asserted this position in her memorandum to her motion
to remand. In the motion itself, Bosely actually requested
primarily that the district court remand the entire case to state
court and alternatively that the court find that the defendants had
waived immunity by removing the case to federal court and therefore
retain jurisdiction over the entire case.

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 has jurisdiction to hear all claims, the Court finds it
best to remand the entire case.

Based on the foregoing, the Court finds that the
plaintiffs’ Motion to Remand should be, and hereby is,
GRANTED. The Motion to dismiss is DENIED. Accordingly,
this case is hereby REMANDED to the Circuit Court of
Mineral County, West Virginia, for all further
proceedings.

(Remand Order, at 2) (citations omitted).

The state defendants filed this petition for writ of mandamus

challenging the district court’s decision to remand the case to

state court; Sabin and the Mineral County Sheriff’s Office later

joined in the petition. We granted a motion by the defendants to

stay the proceedings in the district court, and the state court has

likewise stayed all proceedings pending the disposition of this

petition.

Mills has also appealed the denial of his motion to dismiss on

the bases of absolute quasi-judicial and qualified immunity.

II.

The defendants contend that they properly removed this case to

federal court and that the district court was obliged to retain

jurisdiction over Bosely’s claims. They therefore argue that the

district court erred by remanding the action to state court and

request that we order the court via writ of mandamus to retain

jurisdiction. Bosely, however, contends that 28 U.S.C.A. § 1447(d)

(West 2006) precludes our review of the remand order because the

7
district court remanded the case based on its perception that it

lacked subject-matter jurisdiction over the claims. We conclude

that we are authorized to review the remand order, and we grant the

relief that the defendants request.

Subject to an exception not applicable in this case, section

1447(d) provides that “[a]n order remanding a case to the State

court from which it was removed is not reviewable on appeal or

otherwise.” 28 U.S.C.A. § 1447(d). Notwithstanding this seemingly

clear language, the Supreme Court has held that appellate-court

review of remand orders is statutorily prohibited only if the

remand is based on one of the grounds listed in

28 U.S.C.A. § 1447(c) (West 2006)--lack of subject-matter

jurisdiction or a timely objected-to defect in the removal

procedure. See Powerex Corp. v. Reliant Energy Servs., Inc., 127

S. Ct. 2411, 2416 (2007). In determining whether a remand order is

reviewable, the critical question is not whether the district court

correctly based its remand on a ground listed in § 1447(c), but

rather, whether the district court believed that such a ground

pertained. See In re Blackwater Sec. Consulting, LLC, 460 F.3d

576, 585 (4th Cir. 2006). Here, no defect in the removal procedure

is alleged; thus, we focus on whether the district court believed

that it lacked subject-matter jurisdiction over the case. Our

review is precluded if “the District Court relied upon a ground

that is colorably characterized as subject-matter jurisdiction.”

8
Powerex Corp., 127 S. Ct. at 2418. If, however, the district court

did not believe that its lack of subject-matter jurisdiction

required the remand, we are authorized to consider the correctness

of the remand decision. See Ellenburg v. Spartan Motors Chassis,

Inc., 519 F.3d 192, 196 (4th Cir. 2008).

Here, we have no reason to believe that the remand order was

based on a perceived lack of subject-matter jurisdiction over the

case. The order acknowledged that the state defendants asserted

Eleventh Amendment immunity as a defense to Bosely’s federal

constitutional claims only.2 And no party disputed that the

district court possessed subject-matter jurisdiction over at least

some of the claims. Indeed, all parties explicitly recognized that

any decision to remand all claims back to state court would be

based on an exercise of the court’s discretion to obtain the most

desirable result. And the language of the remand order, which

includes no reference to § 1447, confirms that the remand decision

was, in fact, based on a discretionary weighing of prudential

concerns rather than on a jurisdictional determination. See

(Remand Order, at 2) (noting Bosely’s reliance on Morris and

concluding that remand of all claims was a “suitable disposition”);

id. (“find[ing] it best to remand the entire case” in light of the

fact that the state court offered a forum where all claims could be

2
In fact, although it is not important to our decision, we
note that Eleventh Amendment immunity was asserted only as a
defense to some of those claims.

9
heard together).3 Because the basis for the remand of the case

could not be “colorably characterized as subject-matter

jurisdiction,” Powerex Corp., 127 S. Ct. at 2418, our review of the

remand order is not precluded. See Barksdale v. Washington Metro.

Area Transit Auth., 512 F.3d 712, 715 (D.C. Cir. 2008) (holding

that court of appeals was authorized to review remand where remand

was based on district court’s discretionary determination that

remand would be more convenient for plaintiff’s counsel).

Having determined that the remand order is reviewable, we have

little trouble concluding that remand was improper. Federal-

question jurisdiction clearly exists over Bosely’s § 1983 claims.

See Front Royal & Warren County Indus. Park Corp. v. Town of Front

Royal, 135 F.3d 275, 278 (4th Cir. 1998). And, the district court

possessed supplemental jurisdiction over the state-law claims

arising out of the same set of facts. See 28 U.S.C.A. § 1367 (West

2006). Although the state defendants asserted Eleventh Amendment

immunity as a defense to some of the § 1983 claims, the fact that

that defense can be waived, see Lapides v. Bd. of Regents, 535 U.S.

613, 618 (2002), suggests that, even if it was not waived here, it

3
The district court’s statement that it “question[ed] the
theory of removing the case based on federal jurisdiction and then
moving to dismiss the case based on lack of jurisdiction,” (Remand
Order, at 2), apparently refers to the issue of whether the
defendants waived Eleventh Amendment immunity by removing Bosely’s
case to federal court. That language does not even suggest that
the district court disagreed with the parties’ view that it
possessed subject-matter jurisdiction over at least some of the
claims.

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is not jurisdictional, see United States v. Cotton, 535 U.S. 625,

630 (2002) (explaining that lack of subject-matter jurisdiction

cannot be waived); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 654

n.8 (4th Cir. 2006) (“Because the statute of limitations is a

waivable defense, the district court erroneously determined that

its restrictions are jurisdictional in nature.”).4 Moreover, even

if Eleventh Amendment immunity is a jurisdictional bar, assertion

of the bar against one claim does not destroy removal jurisdiction

over the remaining claims--certainly not over the claims against

Sabin and the Mineral County Sheriff’s Office, to which the

immunity clearly does not apply.5 See Wisconsin Dep’t of

Corrections v. Schacht, 524 U.S. 381, 392 (1998) (“A State’s proper

assertion of an Eleventh Amendment bar after removal means that the

federal court cannot hear the barred claim. But that circumstance

does not destroy removal jurisdiction over the remaining claims .

. . .”). Thus, it is apparent that the district court possessed

subject-matter jurisdiction over this case.

4
The Supreme Court has not yet decided whether the assertion
of Eleventh Amendment immunity is a jurisdictional matter. See
Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 391
(1998).
5
Because we conclude that the district court retained
jurisdiction over at least some of the claims even if the state
defendants validly asserted Eleventh Amendment immunity, we need
not address whether the removal of the case operated as a waiver of
that defense. Cf. Lapides v. Board of Regents, 535 U.S. 613, 622-
24 (2002) (concluding that state’s removal of case to federal court
amounted to a waiver of the state’s Eleventh Amendment immunity, at
least as to the state-law claims asserted against the state).

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 Possessing federal-question jurisdiction, the district court

was obliged to exercise it; it had no authority to decline the case

simply because it believed that it would be better for the case to

proceed in state court. See Deakins v. Monaghan, 484 U.S. 193, 203

(1988) (“[T]he federal courts have a virtually unflagging

obligation to exercise their jurisdiction . . . .” (internal

quotation marks omitted)); Barksdale, 512 F.3d at 716 (holding that

district court lacked authority “to remand a case for the

convenience of counsel”); Martin v. Stewart, 499 F.3d 360, 363 (4th

Cir. 2007) (“The Supreme Court has repeatedly instructed that

federal courts have a strict duty to exercise the jurisdiction that

is conferred upon them by Congress.” (internal quotation marks

omitted)). And because there was no valid basis for the district

court to refuse to exercise its jurisdiction over this case,

mandamus relief is in order. See Thermtron Prods., Inc. v.

Hermansdorfer, 423 U.S. 336, 351-53 (1976); Borneman v. United

States, 213 F.3d 819, 826 (4th Cir. 2000).

III.

We next address Mills’ appeal of the district court’s denial

of the state defendants’ motion to dismiss the complaint.

Initially, we note that we can only conclude from the fact

that the district court denied the motion to dismiss summarily,

12
without any discussion of its merits, that the dismissal was

without prejudice and was based simply on the fact that the court

had decided to remand the entire case back to state court. Mills

urges us to reverse the denial, contending that the state

defendants are entitled to absolute quasi-judicial immunity and

qualified immunity. Because these immunities are designed to

shield those that they protect from not only the burdens of

liability, but also the burdens of litigation, see Mitchell v.

Forsyth, 472 U.S. 511, 526-27 (1985), we consider whether the

record at this stage of the litigation demonstrates that Mills is

entitled to either of these immunities. We conclude that it does

not.

We begin with the doctrine of absolute quasi-judicial

immunity. Judges performing judicial acts within their

jurisdiction are entitled to absolute immunity from civil liability

claims. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per

curiam). “‘[Q]uasi-judicial’ . . . officials whose duties are

comparable to those of judges or prosecutors” are likewise entitled

to absolute immunity. Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th

Cir. 1999); see Goldstein v. Moatz, 364 F.3d 205, 213 (4th Cir.

2004). And such immunity extends to the judge’s subordinates for

“functions that are more administrative in character [that] have

been undertaken pursuant to the [judge’s] explicit direction.”

Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992). The basis for

13
extending the immunity in these situations is to prevent a judge’s

subordinates from becoming a “lightning rod for harassing

litigation” challenging decisions for which the judge is immune.

Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1,

3 (1st Cir. 1976). Relying on Martin v. Hendren, 127 F.3d 720 (8th

Cir. 1997), Mills contends that he is entitled to absolute quasi-

judicial immunity since the complaint seeks to hold him liable for

his execution of a judicial order. In Hendren, Officer Hendren

injured Martin when carrying out a judge’s order to remove Martin

from the judge’s courtroom. In a subsequent federal action, the

Eighth Circuit held in a split-panel decision that Hendren was

entitled to absolute quasi-judicial immunity from suit since “[a]

judge’s absolute immunity extends to public officials for acts they

are specifically required to do under court order or at a judge’s

direction.” Hendren, 127 F.3d at 721 (internal quotation marks

omitted).

We do not find the Eighth Circuit’s decision persuasive. As

recognized by the dissent in that case, the majority failed to

appreciate the distinction between protection from liability simply

for following a judge’s order and protection from liability for

carrying out a judge’s order in a manner not sanctioned by the

judge. See Hendren, 127 F.3d at 723 (Lay, J., dissenting); see

also Richman v. Sheahan, 270 F.3d 430, 436 (7th Cir. 2001); Martin

v. Bd. of County Comm’rs, 909 F.2d 402, 405 (10th Cir. 1990) (per

14
curiam) (“[A] judicial warrant contains an implicit directive that

the arrest and subsequent detention be carried out in a lawful

manner.”). Here, Mills’s alleged unconstitutional execution of the

order was not specifically authorized by the judicial officer who

issued the warrant. Nor does the complaint seek to hold Mills

liable for a quasi-judicial decision. Rather, the decision

challenged in the complaint is the defendants’ decision of how to

execute the warrant. Thus, the state defendants clearly are not

entitled to absolute quasi-judicial immunity. See Richman, 270

F.3d at 435-36 (holding that officers ordered to restrain man in

courtroom were not entitled to absolute quasi-judicial immunity

from suit alleging the officers used excessive force in restraining

the man); Bd. of County Comm’rs, 909 F.2d at 405 (holding that

officers executing arrest warrant were not entitled to absolute

quasi-judicial immunity from suit alleging the officers used

excessive force and provided constitutionally inadequate medical

attention in executing the warrant).

Qualified immunity, not absolute immunity, is the defense that

will be available to the state defendants if it is supported by the

facts. Qualified immunity generally shields “[g]overnment

officials performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

15
U.S. 800, 818 (1982). Mills argues that if the district court did

not err in failing to grant his motion to dismiss on the doctrine

of absolute quasi-judicial immunity, it erred in failing to dismiss

the constitutional claims against him in his individual capacity on

the basis of qualified immunity. It is that issue to which we now

turn.6

“In a suit against an officer for an alleged violation of a

constitutional right, the requisites of a qualified immunity

defense must be considered in proper sequence.” Saucier v. Katz,

533 U.S. 194, 200 (2001). The threshold inquiry is whether the

facts alleged, taken in the light most favorable to Bosely,

demonstrate the violation of a constitutional right. See id. If

they do, then we must determine whether the contours of the right

were clearly established such that a reasonable officer would

understand that his actions violated that right. See id. at 201.

We review a district court’s decision to deny a motion to dismiss

on the basis of qualified immunity de novo. See Blankenship v.

Manchin, 471 F.3d 523, 528 (4th Cir. 2006).

Mills’ argument on appeal is simply that the allegations in

the complaint, even if taken as true, are too vague and conclusory

to demonstrate the violation of constitutional rights. See Bell

6
The denial of a motion to dismiss on the basis of qualified
immunity is an appealable order. See Behrens v. Pelletier, 516
U.S. 299, 307 (1996).

16
Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (holding that

allegations in complaint must be sufficient “to state a claim to

relief that is plausible on its face”). We disagree. A complaint

need only give “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“Specific facts are not necessary; the statement need only “‘give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Erickson v. Pardus, 127 S. Ct.

2197, 2200 (2007) (per curiam) (quoting Twombly, 127 S. Ct. at

1964). There is no heightened pleading standard for qualified-

immunity cases. See Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.

2001).

Here, the complaint alleged that, after taking Dr. Bosely into

custody, “Mills and Sabin bashed Dr. Bosely’s head against the

kitchen wall” and failed to protect him from being shot in the

head, and that Dr. Bosely died shortly thereafter. (Complaint,

¶¶ 20-22). While it may well be the case that Bosely will

eventually be required to plead her claims with more specificity in

order to protect the state defendants from possibly being

“subjected to unnecessary and burdensome discovery or trial

proceedings,” Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see

Iqbal v. Hasty, 490 F.3d 143, 157-59 (2d Cir. 2007), we conclude

that at this stage, the factual allegations are sufficient, and

denial of the motion to dismiss was proper.

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 IV.

In sum, we grant the defendants’ petition for a writ of

mandamus requiring the district court to retain jurisdiction over

this case and we affirm the district court’s denial of the state

defendants’ motion to dismiss the complaint on the basis of

absolute quasi-judicial and qualified immunity.

PETITION GRANTED AND AFFIRMED

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