Civil Procedure – Removal – Prisoner Injury – Remand

A prisoner’s suit alleging defendants failed to protect him from assault by a cellmate at Lawrenceville Correctional Center, despite his repeated requests for a transfer, is remanded by a Richmond U.S. District Court to state court.

Defendant GEO Group Inc., a Florida corporation that removed the suit based on diversity, argues the Virginia defendants are merely nominal parties to this action because plaintiff cannot recover against them. GEO Group contends the Virginia defendants are immune from suit under the doctrine of sovereign immunity and defendant LCC lacks the capacity to be sued.

GEO Group’s difficulty in establishing that the Virginia defendants are nominal parties is that the court cannot assume jurisdiction to decide whether the Virginia defendants are immune to suit. Virginia is generally immune to suit with respect to any claim for which it has not waived its sovereign immunity.

Pursuant to the Virginia Tort Claims Act, Va. Code § 8.01-195.1, Virginia waives sovereign immunity in some cases for tort liability, but only provided the suit is filed in state court. This precludes the court from deciding whether Virginia has waived sovereign immunity with respect to plaintiff’s claims.

GEO Group also has failed to demonstrate that the Virginia defendants did not need to consent to removal.

This action will be remanded to Richmond City Circuit Court.

Sharp v. Commonwealth (Payne, J.) No. 3:09cv834, April 22, 2010; USDC at Richmond, Va. VLW 010-3-231, 7 pp.