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Pancho's LLC v. Hughes

Supreme Court of Appeals of West Virginia

September 9, 2019

Pancho's LLC, Plaintiff Below, Petitioner
James T. Hughes, Margaret Ritchie, Joyce Robinson, Terri Ranson, James McCoy, Marsha Geyer, Keith King, Judith Miller, in their official and individual capacities as members of the Jackson County Board of Health, Jonathan Graziani, Inspector for the Jackson County Health Department, and Susan Hosaflook, Administrator of the Jackson County Health Department, Defendants Below, Respondents

          (Jackson County 13-C-98)


         Petitioner Pancho's LLC, by counsel George R. Higinbotham, Jr. and Forrest A. Bowen, appeals the order of the Circuit Court of Jackson County, entered on December 4, 2017, that denied petitioner's motion for summary judgment and granted respondents' motion for summary judgment. Respondents appear by counsel Jeffrey W. Lilly.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Pancho's LLC ("Pancho's") is a restaurant in Jackson County ("the county"). Respondent Jonathan Graziani inspected Pancho's on behalf of Respondent Jackson County Health Department ("the health department") in April of 2011. He found numerous violations of the 2005 Food Code ("the food code"), a product of the federal Food and Drug Administration that was adopted and enforced by the county. Mr. Graziani ordered the restaurant immediately closed. He returned to Pancho's the day after the closure, found the conditions improved, and authorized the restaurant's immediate reopening. Pancho's does not challenge the violations Mr. Graziani reported upon inspection of the restaurant, or the resultant closure.

         Pursuant to a policy enacted by the health department in 2003, under which it forwarded its health inspection scores to a local newspaper for publication, the results of Mr. Graziani's inspection were published on August 31, 2011, alongside the scores of several other eateries. The paper made no mention, however, of the restaurant's swift correction or the follow-up inspection that led to the restaurant's prompt reopening. Pancho's brought the omission of this information to the health department's attention in September of 2011, but there is no evidence that the newspaper published a correction or otherwise reported the restaurant's speedy remediation.

         Pancho's filed the complaint initiating this action in August of 2013. It asserted that respondents' publication policy deprived it of prior notice and an opportunity to be heard, thereby denying Pancho's the right of due process. The parties conducted discovery and filed dueling motions for summary judgment. The circuit court entered an order denying petitioner's motion and granting respondents' motion on December 4, 2017.

         Pancho's assigns three errors, paraphrased here. First, the restaurant argues that the circuit court "failed to recognize" that a government "sanction" threatening financial harm requires due process of law. Second, it argues that the county's policy of publication is neither grounded in nor permitted by law. Finally, Pancho's argues that the court erred in failing to recognize "goodwill" as a proprietary interest, because the food code guarantees due process. As is customary in our consideration of a circuit court's entry of summary judgment, we apply a de novo standard of review. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

         The first and third assignments of error assert that the publication of the violations the restaurant committed, with no accompanying explanation of the quick correction, injured Pancho's. More specifically, Pancho's asserts that it has articulated a "constitutional tort" claim pursuant to 42 U.S.C. § 1983 based on the Fourteenth Amendment of the United States


         We have explained:

Title 42, U.S.C.A., § 1983 provides in pertinent part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law."
This civil rights statute does not create substantive rights, but merely provides a claim for relief for rights elsewhere secured. Thus, § 1983 claims must specifically allege a violation of the constitution or "laws" of the United States. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694, n. 3, 61 L.Ed.2d 433 (1979). In order to recover damages under § 1983, a plaintiff must show that (1) "the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

Hutchison v. City of Huntington, 198 W.Va. 139, 151-52, 479 S.E.2d 649, 661-62 (1996) (emphasis ...

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