(Jackson County 13-C-98)
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.
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.
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.
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.
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.
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).
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
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
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
Hutchison v. City of Huntington, 198 W.Va. 139,
151-52, 479 S.E.2d 649, 661-62 (1996) (emphasis ...