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State must defend ex-guard in ‘pranks’ lawsuit, for now

The commonwealth may be forced to provide a defense for a former prison guard accused in a lawsuit of playing cruel pranks on an inmate, even though state officials claim the alleged mistreatment was outside the scope of the guard’s employment.

In a declaratory judgment action, Roanoke Circuit Judge Jonathan M. Apgar turned aside the commonwealth’s defenses to coverage under the state risk management plan and rejected the commonwealth’s claim to sovereign immunity.

The case is Fletcher v. Commonwealth, (VLW 010-8-146). In his 11-page opinion, Apgar overruled both the commonwealth’s plea of sovereign immunity and a demurrer as to the commonwealth’s duty to defend.

The underlying lawsuit alleges former correctional officer Michael Fletcher, now retired, committed numerous instances of cruelty and mistreatment against Thomas Jackson, a one-time inmate at the former Botetourt Correctional Center who worked under Fletcher’s supervision.

According to the amended complaint in Jackson’s federal lawsuit, Fletcher deployed a vast array of sadistic hazing and harassment techniques aimed at Jackson. Among other torments, Fletcher allegedly mixed manure with Jackson’s chewing tobacco, administered electric shocks, and put a habanero pepper on an open wound.

Represented by a Roanoke law firm, Jackson sued Fletcher and other defendants in October.

When he found out he had been sued, Fletcher asked the state’s Division of Risk Management for a defense and for indemnification under the statutorily mandated state risk management plan. The DRM refused, claiming Fletcher’s alleged conduct was “outside the course and scope of his employment.”

Fletcher, represented by Roanoke attorney Paul G. Beers, answered the federal lawsuit and also filed a declaratory judgment action in Roanoke Circuit Court seeking a defense and indemnification from the commonwealth.

In response, the commonwealth advanced a three-part immunity defense and also demurred to the claim for coverage under the risk management plan.

Apgar held in part that, because the declaratory judgment action sought to enforce contractual rights and not to press a tort claim, the immunity defenses did not apply.

Apgar next rejected two key arguments of the commonwealth’s demurrer. Distinguishing a 2000 Supreme Court of Virginia opinion regarding a claim for criminal defense costs, Apgar held that Fletcher properly sought coverage under the risk management plan. The judge cited a 2010 Supreme Court opinion in holding that the risk management plan should be regarded as an insurance contract for purposes of the claim for coverage.

Interpreting the language of the plan, Apgar then found coverage would apply if Fletcher were acting in an authorized governmental capacity and in the course and scope of his employment or authorization.

Those criteria were satisfied, Apgar held, because the complaint alleged Fletcher was acting in his capacity as a state employee and that his actions were ratified by the prison warden, a co-defendant.

The state risk management plan expressly excluded coverage for claims arising from “malicious, willful, wanton, or criminal acts.” The plan denied a defense if such conduct were found by the trier of fact.

Apgar said the claims had not yet been tested by a court, so the commonwealth still owed a defense. Apgar deferred a decision on the indemnity question as premature.

Beers noted the opinion should interest to those who defend claims against state employees.

Requests for comment from several such attorneys brought no response as of presstime. The Office of the Attorney General said it does not comment on pending litigation.

The declaratory judgment action remains pending for further action. A trial of the federal lawsuit against Fletcher is scheduled for Dec. 20.

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