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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ERIC J. BONETTI
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Plaintiff,
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v.
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EPISCOPAL DIOCESE OF VIRGINIA, et al.
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Civil Case No.: 1:21-cv-00190-CMH-JFA
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Defendants. * *
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DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Defendants, Robert Hiller Malm (“Malm”), Grace Episcopal Church (“Grace Episcopal”), and Episcopal Diocese of Virginia (“Episcopal Diocese”), through their respective counsel, and pursuant to FED. R. CIV. P. 12(b)(6), hereby submit their Reply to Defendants’ Motion to Dismiss Complaint, and state as follows: 1.
Plaintiff Bonetti filed a Complaint for Violation of Civil Rights, asserting a 42
U.S.C. § 1983 claim against Defendants Malm, Grace Episcopal, and Episcopal Diocese.1 2.
A claim under 42 U.S.C. § 1983 is reserved for allegations involving the violation
of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. 3.
Plaintiff’s reliance on United States v. Price, 383 U.S. 787 (1966) is misplaced
because that case involves federal charges against law enforcement officials and their associates pursuant to 18 USCS § 242, not 42 U.S.C. § 1983. Further, such private individuals can only be
1
Plaintiff moved to amend his Complaint on March 24, 2021. The bald, conclusory allegations in Plaintiff’s Motion to Amend do not change the analysis in Defendants’ Motion to Dismiss.
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subject to this provision if they are “willful participant[s] in a joint activity with the State or its agents.” Id. No such allegations are made here. 4.
“The Constitution does not provide a right to be protected from actions by private
parties,” rather exceptional circumstances are required to establish that a special relationship exists in order to give rise to such a protection. Doe v. Detroit Bd. of Educ., 310 F. Supp. 2d 871, 874 (E.D. Mich. 2004). C.f. Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910-13 (6th Cir. 1995). Again, no such allegations are made here 5.
Plaintiff’s further references to 18 USCS §371 and 18 U.S.C.S. § 242 do not cure
the lack of a cognizable cause of action. 6.
The balance of Plaintiff’s Opposition to Defendants’ Motion to Dismiss contains
conclusory allegations of conduct alleged to have been committed by Defendants without any support demonstrating that 42 U.S.C. § 1983 is applicable. WHEREFORE, Defendants respectfully request that the Court dismiss Plaintiff’s Complaint against Robert Hiller Malm, Grace Episcopal, and Episcopal Diocese of Virginia with prejudice. Respectfully submitted: / s / Matthew J. Youssef Craig D. Roswell, Esquire (VSB No.: 33901) Matthew J. Youssef, Esquire (VSB No.: 85339) NILES, BARTON & WILMER, LLP 111 S. Calvert Street, Suite 1400 Baltimore, Maryland 21202 (410) 783 – 6357 (410) 783 – 6452 facsimile cdroswell@nilesbarton.com mjyoussef@nilesbarton.com Counsel for Defendant, Grace Episcopal Church, Episcopal Diocese of Virginia
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/ s / Wayne F. Cyron Wayne F. Cyron, Esquire (VSB No. 12220) CYRON & MILLER LLP 100 N. Pitt St., Suite 200 Alexandria, VA 22314 703-299-0600 703-299-0603 (fax) wcyron@cyronmiller.com Counsel for Defendant, Robert H. Malm
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 30, 2021, a true and accurate copy of the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system and a copy mailed to: Eric J. Bonetti 4129 Fountainside Lane #203 Fairfax, VA 22030 / s / Matthew J. Youssef Matthew J. Youssef
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PLAINTIFF’S SECOND BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Plaintiff submits this brief in opposition to defendants’ motion to dismiss. 1. It is well established that, when as here, the Plaintiff is proceeding pro se, that her or his pleadings are to evaluated on a notice pleading standard, and only dismissed if there is no plausible standard under which Plaintiff might prevail. Moreover, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations” and does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 2. Moreover, district courts should read the pleadings of a pro se plaintiff “liberally” and “interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). 3. Plaintiff readily acknowledges he does not have access to the same resources as defense counsel.
4. Plaintiff believes and avers that adequate facts exist to suggest conspiracy to violate civil rights guaranteed under § 1983 between defendants and the City of Alexandria, sufficient to render defendants subject to liability under § 1983. These include: a. The role of the City police department in providing free legal advice to defendants Robert H. Malm and Grace Episcopal Church. Specifically, emails between the city and the other defendants reveal that the city advised the other defendants to pursue a protective order against the plaintiff, despite the fact that the city police department had determined that Plaintiff had not engaged in any illegal conduct. b. Moreover, the fact that there is not a scintilla of evidence to support the notion that Plaintiff threatened Defendants Grace Episcopal Church and Robert Hiller Malm leaves no plausible explanation for the decision by the Alexandria General District Court to grant a protective order. Indeed, Defendant Malm expressly stated in court that: i. Plaintiff had not threatened him. ii. He had not seen Plaintiff in more than a year. iii. He had not communicated with plaintiff in more than a year. c. The conclusion that a conspiracy to violate Plaintiff’s civil rights is bolstered by the City of Alexandria’s inexplicable refusal to investigate perjury and witness tampering by Defendants Robert Hiller Malm and Grace Episcopal Church. Indeed, the attachments to Plaintiff’s initial pleadings are facially perjurious: Malm references Plaintiff’s late mother by name in his original perjury. In the most recent proceeding, Malm claims he did not know her name. Both claims cannot be true. d. As to Malm’s witness tampering, it is indisputable that he and his family members have contacted key witnesses, including Dee Parsons, as evinced by the email previously provided in Plaintiff’s pleadings. This happened most recently on or about December 20,
2020. Plaintiff has complained myriad times to the Alexandria police department and courts about these issues, only to be brushed off repeatedly. e. Indeed, when Plaintiff last filed a formal police report in June 2019 with the City of Alexandria about Malm’s terroristic threats, the City of Alexandria took no action beyond interviewing Malm. f.
It should also be noted that Defendants Robert Hiller Malm and Grace Episcopal Church have made various statements against interest. For example, the former told the Episcopal bishop of Virginia in an email that his wife and daughter take the matter “far too seriously.” In another email, Malm specifically states he does not feel threatened — putting the lie to his various courtroom fabrications and again raising the question why the City of Alexandria refuses to address Malm’s perjury and other criminal conduct.
g. As to Defendants’ invocation of “special circumstances,” sufficient to bring a private actor within the purview of § 1983, Plaintiff avers exactly such circumstances. These include Defendant Malm’s sociopathic conduct, including his myriad lies to the courts, his perjury, his lies to the Alexandria police department, his lies to the Massachusetts courts, his lies to members of his own church, and his lies even to the Episcopal bishop of Virginia. The latter include Malm’s lies in an email sent to Bishop Shannon Johnston, in which he tells a facially obvious lie: That Plaintiff left his employment at RPJ Housing before coming to Defendant Grace Episcopal Church, and embezzled funds from RPJ Housing. Moreover, there are at least 16 instances in which Defendant Malm and Grace Episcopal Church concealed evidence during discovery, including the email referenced above, which only now has come to light. (Having perpetrated that fraud upon the courts, the Defendants now have the audacity to invoke the statute of limitations apropos Malm’s defamatory statements.) In short, at some point Malm and Grace
Episcopal Church became not merely plaintiffs in the earlier litigation who were proceeding under mistaken or questionable legal theories. Instead, they became joined with the City of Alexandria in a criminal enterprise predicated on perjury, concealment of evidence, and witness tampering, with at least the tacit approval of the City of Alexandria police department, and the active approval of the City of Alexandria Courts. h. It should also be noted that while the Defendants continue to label Plaintiff’s assertions as “conclusory,” they offer not a scrap of evidence to refute Plaintiff’s assertion of perjury on the part of Defendants Robert Hiller Malm and his employer, Grace Episcopal Church, and by extension the Episcopal Diocese of Virginia. Thus, defendants’ denials are nothing more than conclusory assertions to the contrary. i.
Plaintiff acknowledges that § 1983 neither can, nor should, be invoked for private citizens for each and every casual casual contact with the local courts and government officials. But in the instant case, Plaintiff has tried every option to obtain redress within the Alexandria courts, the Alexandria City Police Department, and even within the Episcopal Church itself via its disciplinary canons. Plaintiff has in every instance been rebuffed out of hand, with the Episcopal Diocese Of Virginia even stating in writing that it will not take action against clergy who commit perjury absent criminal charges. Thus, while Plaintiff has asked this Court to consider state claims of common law conspiracy and statutory conspiracy, it will be difficult if not impossible for Plaintiff to resolve this ongoing conflict with the defendants absent consideration under § 1983. This is particularly the case with regard to his First Amendment rights — a topic that the Alexandria General District Court refused to even consider during trial.
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Plaintiff also notes that the Alexandria Courts are being far from helpful in the present litigation. While some of this undoubtedly consists of issues relating to the pandemic,
Plaintiff has, for example, issued several requests for third-party subpoenas with the Circuit Clerk of Courts. Despite placing the requisite materials in the clerk’s dropbox, including the relevant funds, the clerk’s office denies receiving them, and nothing has been returned to the Plaintiff, nor has a subpoena issued. Moreover, the Clerk has refused to schedule an in-person or video meeting to resolve these issues, while emails to the court’s law clerks regarding status have met with no response. Thus, Plaintiff questions his ability to effectively pursue a remedy in the City of Alexandria courts. k. Plaintiff also notes one overarching difficulty in this litigation, which is that, despite the declining role of faith in American society, the City of Alexandria, its police department, and its courts have continued to defer to the fact that Defendant Malm is an Episcopal priest, despite his perjury, witness tampering and other misconduct. Indeed, the Alexandria General District Court seemingly made much of the fact, during the initial trial, that the Episcopal Diocese of Virginia has supervisory authority over Defendant Malm, and has not seen fit to object to his conduct. But that is the very heart of Plaintiff’s contentions — that he is being brushed off at every turn in this matter. Indeed, even now, with the City of Alexandria having been copied on these pleadings, Plaintiff sees no sign that the City of Alexandria has done anything to investigate allegations of illegal conduct by Defendants Malm and Grace Episcopal Church. In short, the best way for these conclusions not to be “conclusory” is for City of Alexandria government officials to take them seriously and conduct a full, fair, independent investigation, then act on the results. And if the City remains unwilling to do so, and its courts continue to simply rule in favor of the Defendants without even a shred of evidence to support Defendants’ claims, then the Federal Courts truly are the court of last resort for the Plaintiff.
I have, this 31st day of March 2021, provided copies to defense counsel: