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Sheriff granted immunity in sexual abuse lawsuit

Where a man sued the sheriff after he was arrested, because his developmentally challenged minor daughter allegedly used “facilitated communication” to make claims of sexual abuse, the sheriff was entitled to immunity against the man’s constitutional claims. No controlling authority establishes the constitutional right not to be arrested solely on accusations via facilitated communication.


Kevin Plantan brings this action against Hanover County Sheriff’s Department, or HCSD, and Sergeant Troy Payne, both in Payne’s individual capacity and in his official capacity as an agent of the HCSD. He also sues Cornerstone Therapy Associates LLC and Cornerstone’s employee, Wendy Atkinson. Finally, he names his ex-wife, Kelly Smith, as a defendant.

Plantan’s claims stem from his arrest and subsequent detention based on allegations that he sexually assaulted his minor daughter, S.P., who has been diagnosed with “regressive autism” and “severe dyspraxia, a motor-function disorder that severely limits, alters, and impacts her ability to control her own physical movements.” Plantan alleges that, on independent occasions, three Cornerstone employees, including Atkinson, “purportedly facilitated S.P. as she used an iPad or other device as a means of making” allegations that “Plantan sexually abused her in 2013 and 2016.”

Plantan claims that the Hanover defendants violated his constitutional rights as protected by 42 U.S.C. § 19832 and the Fourth and Fourteenth Amendments of the United States Constitution. Plantan also brings Virginia state law claims of malicious prosecution, false arrest and gross negligence against both the Cornerstone defendants and the Hanover defendants. The Cornerstone and Hanover defendants both filed motions to dismiss.

Hanover defendants

As an initial matter, the court will dismiss all counts against the HCSD because the HCSD is not a cognizable legal entity that can be sued. Next, Plantan asserts that Payne subjected him to an unreasonable search and seizure and deprived him of due process in his right to familial integrity when he relied on S.P’s facilitated communication claims of sexual abuse to seek, without investigation as to the validity of facilitated communication, criminal charges and an arrest warrant. The court will dismiss these counts against Payne, both individually and officially, on qualified immunity grounds.

First, no “controlling authority” in this jurisdiction establishes the constitutionally required method for handling allegations made by non-verbal and physically disabled victims or those utilizing facilitated communication to make their allegations. Second, even if the Virginia courts or legislature had addressed the use of facilitated communication in courtroom testimony, such precedent would not create a “controlling authority” on whether facilitated communication claims could support criminal investigations, which require probable cause for arrest.

Finally, even though courts addressing facilitated communication have largely been critical of it (and perhaps rightly so), no consensus of persuasive authority from other jurisdictions establishes the constitutional right not to be arrested solely on accusations via facilitated communication.

Malicious prosecution

Plantan’s first state law claim alleges malicious prosecution against both Payne and the Cornerstone defendants. To state a claim for malicious prosecution under Virginia law, a plaintiff has the burden to prove that “the prosecution was (1) malicious, (2) instituted by or with the cooperation of the defendant, (3) without probable cause, and (4) terminated in a manner not unfavorable to the plaintiff.”

The court will dismiss the Payne malicious prosecution count because Plantan fails to sufficiently allege that Payne acted with malice. However, based on a generous reading afforded to Plantan’s complaint on a motion to dismiss, Plantan does sufficiently allege malice as to the Cornerstone defendants. Thus, the court will deny the motion to dismiss the malicious prosecution count against the Cornerstone defendants.

False arrest

Next, Plantan brings a Virginia false arrest claim against Payne, individually and officially, and the Cornerstone defendants. In Virginia, false arrest, or false imprisonment, is “the direct restraint by one person of the physical liberty of another without adequate legal justification.”

Here, the allegations in the complaint do not sustain Plantan’s false arrest claim, officially or individually, against Payne, nor do they sustain his Cornerstone defendants false arrest claim. This is true because, as to both allegations, Payne had a valid warrant to arrest Plantan.

Gross negligence

The allegations in the complaint do not sustain Plantan’s gross negligence count against Payne because no cause of action exists in Virginia for negligence in police investigations. In addition, Plantan cannot succeed on his Cornerstone defendants gross negligence count because the Cornerstone defendants owed a duty only to S.P.

Hanover defendants’ motion to dismiss granted. Cornerstone defendants’ motion to dismiss granted in part, denied in part.

Plantan v. Smith, Case No. 3:22-cv-407, April 18, 2023. EDVA at Richmond (Lauck). VLW 023-3-213. 38 pp.

VLW 023-3-213

Virginia Lawyers Weekly