The answer to dismissal of lawsuit against Northumberland County sheriff
Northumberland County’s sheriff, C.A. Wilkins, is clear from the lawsuit filed against him by a girl who was molested by then-deputy Derek Jones while he was a resource officer at the county high school because Wilkins’ lawyers filed a pleading that other defendants’ lawyers did not.
The suit, which is based on Jones’ sexual improprieties with a student, was initially filed in Richmond County and the several defendants connected with the school system, and Wilkins, had it removed to federal court in Richmond. There, the defendants all filed motions to dismiss but Wilkins also filed an answer denying the allegations against him.
Mike Sharman, one of the female juvenile’s lawyers, said last week that they did not want the case tried in federal court and moved for a “nonsuit,” to have the case dismissed without prejudice. The plaintiffs meant to and have refiled the suit in Richmond County leaving out any “federal question” allegations that would permit its removal again to federal court but Wilkins is no longer a defendant. Sharman explained that under the federal rules, the action against Wilkins could not be withdrawn without prejudice because he had filed an answer. Instead, the court considered Wilkins’ motion to dismiss and granted it.
Federal Judge John A. Gibney considered the five allegations against Wilkins in his capacity as sheriff and Jones’ supervisor. He found that none supported a claim against the sheriff.
Gibney noted that the first claim against Wilkins, that he was strictly liable for the acts of his deputy, hinged on an allegation that Jones, a deputy sheriff and high school resource officer and coach, was acting under color of his office as a deputy when he committed his crimes against the girl.
“The mere fact that a deputy acts illegally while on duty will not suffice,” Gibney wrote. “Deputy Jones must have committed the act in a form that purports to stem from his legal authority as a deputy sheriff … from the amended complaint, it is clear that Deputy Jones did not act under colore officii (color of office).”
The judge also found that the complaint alleged no facts to support its conclusions that Wilkins was negligent in training and retaining Jones. He also found that the complaints allegations that Wilkins failed to supervise Jones were not only without merit but showed that “Sheriff Wilkins exercised some care in dealing with Deputy Jones” thus ruling out that complaint.
Judge Gibney additionally found that the plaintiffs’ assertion that Wilkins was negligent per se (on the face of it) was without merit. Gibney…
—See the full story in the August 6 edition of the Northumberland Echo!