Saunders v. Burns et al

MOTION to Dismiss for Failure to State a Claim with Roseboro,.

E.D. Va.October 11, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MICHAEL J.G. SAUNDERS, ) ) Plaintiff, ) ) v. ) Civil Action No.: 3:16-cv-00322 ) CRAIG M. BURNS, et al., ) ) Defendants. ) MEMORANDUM IN SUPPORT OF MOTION TO DISMISS I. INTRODUCTION Plaintiff Michael J.G. Saunders (“Saunders”) filed this pro se action seeking damages as well as declaratory and injunctive relief under 28 U.S.C. § 1983 based upon the central allegation that Virginia Code § 18.2-361(A) (Virginia’s former anti-sodomy statute) is “facially invalid” and his 2008 criminal convictions for sodomy with juveniles are thus void. Saunders asks this Court to nullify a May 6, 2016 notice of lien and demand for payment of court liabilities (“Notice of Lien”) sent to his employer, directing the withholding of wages and payment to two courts to satisfy, in part, the court costs, attorney’s fees, and interest Saunders owes from his 2008 convictions and subsequent show cause orders. The Complaint names as defendants (1) the Virginia Tax Commissioner Craig M. Burns (“Commissioner Burns”); and (2) the Clerk of the Chesterfield County Circuit Court Wendy S. Hughes (“Ms. Hughes”). Saunders has failed to state a claim upon which relief can be granted. Because Saunders has not succeeded in vacating his underlying convictions, he may not use § 1983 to collaterally attack them. Moreover, Saunders’ claims are barred by res judicata and collateral estoppel because he has unsuccessfully sought the same relief in various actions filed in State and federal Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 1 of 14 PageID# 131 2 court. And Saunders has also failed to plead any facts showing that Commissioner Burns is a proper Ex Parte Young defendant. Any one of those reasons suffices to bar his complaint here. II. BACKGROUND A. Factual Background On June 11, 2008, the Circuit Court of Chesterfield County (the “Circuit Court”) convicted Saunders of two counts of consensual sodomy with juveniles in violation of Va. Code § 18.2-361(A). (Complaint, Exhibit E; see also Saunders v. Commonwealth, 753 S.E.2d 602, 605 (Va. Ct. App. 2014)). On September 16, 2008 the Circuit Court entered its Sentencing Order, sentencing Saunders to five years’ incarceration with five years suspended on each count, and requiring Saunders meet certain conditions, including the payment of “court costs, including attorney fees, if court appointed and any interest that may accrue until the balance is paid in full.” (Compl., Exh. E). On August 26, 2009, finding Saunders had violated the terms of his probation, the Circuit Court entered its first Show Cause Order, re-suspending each five-year sentence and requiring, inter alia, Saunders to “pay original court costs, current court costs including attorney fees, if court appointed, and any interest that may accrue until the balance is paid in full.” (Compl., Exh. B). On November 19, 2009, again finding Saunders in violation of the terms of his suspended sentences, the Circuit Court entered its second Show Cause Order, revoking a portion of the previously suspended sentence, and requiring, inter alia, Saunders to “pay original court costs, current court costs including attorney fees, if court appointed, and any interest that may accrue until the balance is paid in full.” (Compl., Exh. C). On April 20, 2012, Saunders filed a motion to vacate trial, sentencing, and show cause orders, challenging the constitutionality of his convictions and arguing the Circuit Court lacked Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 2 of 14 PageID# 132 3 subject matter jurisdiction. See Saunders v. Commonwealth, 753 S.E.2d at 605. On April 23, 2012, the Circuit Court denied Saunders’ motion to vacate - a decision which Saunders did not appeal. Id. On August 22, 2012, Saunders filed the identical motion again in Circuit Court and appeared for a probation revocation hearing, arguing the Circuit Court lacked authority to impose any sentence due to the holding in Lawrence v. Texas, 539 U.S. 558 (2003) (striking down a Texas anti-sodomy statute as unconstitutional). Id. at 605-06. The Circuit Court denied the motion, rejected Saunders’ constitutional argument under Lawrence, and found Saunders in violation of his probation. Id. at 606. On September 4, 2012, based on its findings at the hearing, the Circuit Court entered its third Show Cause Order, imposing a sentence of three years active incarceration, and requiring, inter alia, Saunders to “pay original court costs, current court costs including attorney fees, if court appointed, and any interest that may accrue until the balance is paid in full.” (Compl., Exh. D). Saunders appealed the Circuit Court decision to the Virginia Court of Appeals, arguing in part, that his 2008 conviction was void based on the U.S. Supreme Court’s holding in Lawrence and the Fourth Circuit’s holding in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). Saunders, 753 S.E.2d at 606. On February 4, 2014, however, the Virginia Court of Appeals upheld the Circuit Court’s decision. Id. Saunders appealed that decision to the Supreme Court of Virginia, and on February 26, 2015, the Supreme Court of Virginia affirmed. Saunders v. Commonwealth, Record No. 140507, at 1, 2015 WL 10945236 (Feb. 26, 2015). Also on February 26, 2015, the Supreme Court of Virginia issued its opinion in Toghill v. Commonwealth, 289 Va. 220 (2015), re-affirming its 2007 holding in McDonald v. Commonwealth, 274 Va. 249 (2007), that Va. Code § 18.2-361(A) was not unconstitutional as applied to conduct between adults and minors. 289 Va. at 230. The Court also issued a limiting Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 3 of 14 PageID# 133 4 construction of the sodomy statute, confirming that it “cannot criminalize private, noncommercial sodomy between consenting adults, but it can continue to regulate other forms of sodomy, such as sodomy involving children, forcible sodomy, prostitution involving sodomy and sodomy in public.” Id. at 234. 1 Saunders is currently still on probation and, according to the Complaint, employed at The Lex Group (“Employer”). (Compl. at p.3). On May 19, 2016, Saunders’ Employer received the Notice of Lien, which the Department of Taxation advised it had received because Saunders owed the Circuit Court $10,237.09. (Compl. at p.4; Exh. A). The Notice of Lien also indicates that Saunders owed $616.62 to the Goochland Combined Court. (Compl. Exh. A). The Notice of Lien instructs the Employer to withhold from Saunders’ paychecks and pay directly to the Circuit Court, the lesser of: (1) 25% of Saunders’ disposable earnings; or (2) Saunders’ disposable earnings per week in excess of forty times the federal minimum wage. (Compl. Exh. A). Thereafter, Saunders met with Ms. Hughes at the Circuit Court and she explained to him that the Circuit Court sentencing and show cause orders were valid, and unless nullified, “the complained of collections of Saunders salary and pay would continue . . . .” (Compl. at 5-7). B. Procedural History Since his underlying 2008 convictions, Saunders has filed no fewer than eleven cases in this Court, all unsuccessfully attempting various direct and collateral attacks on his underlying 1 The Court expressly declined to follow the Fourth Circuit’s holding in MacDonald/Moose, as it was merely persuasive, not binding authority. Id. at 227. But the narrowing construction imposed by Toghill now cures any deficiency that was identified by the Fourth Circuit in MacDonald/Moose. See, e.g., Osborne v. Ohio, 495 U.S. 103, 115 (1990) (holding that State- court limiting construction that saves State statute from facial invalidity properly applies to conduct occurring prior to the limiting construction); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 375 n.3 (1971) (“[O]nce the overbreadth of a statute has been sufficiently dealt with, it may be applied to prior conduct foreseeably within its valid sweep.”); Younger v. Harris, 401 U.S. 37, 50 (1971) (same). Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 4 of 14 PageID# 134 5 convictions. Notably, on December 27, 2013, Saunders and MacDonald, filed a pro se action against Virginia State Police Superintendent Colonel W. Steven Flaherty and the Attorney General of Virginia, alleging that, pursuant to the holdings in Lawrence and MacDonald/Moose, their respective convictions under Va. Code § 18.2-361(A) were void. Saunders v. Flaherty, No. 3:13cv854, ECF No. 1 (E.D.Va. 2013). Saunders specifically sought in that case, inter alia, a declaration that Virginia Code § 18.2-361(A) was facially unconstitutional as was his indictment, and he requested expungement of his criminal convictions under that statute. Id. at ¶¶ 17-19. However, after a court-ordered settlement conference, on September 24, 2014, the parties, by counsel, jointly submitted a stipulation of dismissal, representing that all matters had been resolved in the case. Id., ECF No. 27 (E.D.Va. Sept. 24, 2014). The next day, the Court issued its final order per the parties stipulated request, dismissing the action with prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. Id., ECF No. 28 (E.D.Va. Sept. 25, 2014). 2 On or about July 1, 2016, Saunders filed the current Complaint (ECF No. 3) against Commissioner Burns and Ms. Hughes, moving to proceed in forma pauperis, which was granted on September 2, 2016. In his Complaint, Saunders seeks damages and: (1) a declaration that defendants have “violated . . . Plaintiff’s rights under the Constitutions and laws of the United States”; (2) a declaration that the sentencing and show cause orders are null and void “because they are predicated upon a statue [sic] of the Code of Virginia declared facially invalid in light of . . . Lawrence v. Texas . . . [and] MacDonald v. Moose…”; (3) a declaration that the Notice of Lien is null and void; and (4) an injunction against the defendants “from enforcing the Orders of the Circuit Court” and the Notice of Lien. (Compl. at 13-14). On or about October 3, 2016, co- 2 Most recently, on March 17, 2016, this Court dismissed with prejudice, the pro se civil action filed by Saunders and MacDonald against Governor Terry McAuliffe and Virginia Attorney General Mark Herring, on grounds that the action was barred by the doctrine of res judicata. Saunders v. McAuliffe, 3:15cv402, ECF No. 20 (E.D. Va. Mar. 17, 2016). Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 5 of 14 PageID# 135 6 defendant Ms. Hughes, by counsel, filed her Motion to Dismiss and Memorandum in Support (ECF Nos. 9 and 10). 3 Commissioner Burns, by counsel, now moves to dismiss this action against him with prejudice. III. STANDARD OF REVIEW Under Rule 12(b)(6), a complaint can be dismissed for “failure to state a claim upon which relief can be granted.” Fed R. Civ. P. 12(b)(6). In order to obtain relief, a plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 381 (4th Cir. 2002)). To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. But “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet this standard, id., and a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level…” Twombly, 550 U.S. at 555. Moreover, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. IV. ARGUMENT Saunders’ Complaint is fatally deficient and should be dismissed with prejudice. At the outset, Saunders was still on probation at the time he filed the Complaint, so his action, brought 3 This Defendant incorporates by reference those arguments in favor of dismissal of Saunders’ action with prejudice set forth in Ms. Hughes’ Memorandum in Support of her Motion to Dismiss. Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 6 of 14 PageID# 136 7 under 42 U.S.C. § 1983, is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, Saunders’ claims in the Complaint are barred by res judicata and collateral estoppel. Commissioner Burns also lacks the authority to provide the relief requested, and the Complaint ultimately fails to state any plausible claims upon which relief can be granted. A. Saunders’ claims are barred by Heck v. Humphrey. Saunders’ claims are barred because Saunders was still on probation for his 2008 criminal convictions under the anti-sodomy statute when he filed this action. (Compl. Exh. B). In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Id. at 486-47 (internal footnote omitted). Saunders has not alleged any of these circumstances in his Complaint, but instead advances claims seeking relief solely under 42 U.S.C. § 1983. “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; it if would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. Here, Saunders seeks civil relief under § 1983 by directly arguing for the invalidity of his 2008 criminal convictions and sentence. Saunders cannot demonstrate that his underlying convictions and sentence were “invalidated” because his convictions were affirmed by the Virginia Court of Appeals and the Supreme Court of Virginia, as outlined above, and he remains on probation for his 2008 convictions, as acknowledged in the documents attached to the Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 7 of 14 PageID# 137 8 Complaint. Indeed, this Court found in one of Saunders’ prior lawsuits that a party under probation may not bring a collateral attack on his conviction under § 1983. See Saunders v. Jones, Mem. Op., Case No. 3:12cv192, at 5-10, 2014 U.S. Dist. LEXIS 70627 (E.D. Va. May 22, 2014). Rather, a party that is “in custody” can only attack the “fact or duration of confinement” pursuant to 28 U.S.C. § 2254. Id. at *6, n.5 (citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Accordingly, Saunders’ claims should be dismissed with prejudice. B. Saunders’ claims are barred by res judicata and collateral estoppel. 1. Res Judicata Res judicata also bars Saunders claims in light of his numerous prior suits attacking his convictions under former Code § 18.2-361(A). See generally Saunders v. Clarke, 3:15cv117, 2015 U.S. Dist. LEXIS 29262, at *1 (E.D.Va. Mar. 10, 2015); Saunders v. Flaherty, 3:13cv00854 (“Saunders IX”) (resulting in resolution and dismissal with prejudice of claims seeking declaration that criminal conviction under Va. Code § 18.2-361(A) was unconstitutional and removal of his name from Sexually Violent Predator Registry); Saunders v. McAuliffe, 3:15cv00402 (“Saunders X”) (resulting in dismissal with prejudice on res judicata grounds). To demonstrate that res judicata bars an opposing party’s claim, it is necessary to establish three elements: (1) a final judgment on the merits in a prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Nash County Bd. Of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981). All of those elements are satisfied here. The first element is met because, in Saunders IX, this plaintiff, by stipulated request of the parties, voluntarily dismissed with prejudice his action complaining of the alleged unconstitutionality of his conviction under the former anti-sodomy statute. A dismissal with Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 8 of 14 PageID# 138 9 prejudice is a final judgment on the merits. Cantebury v. J.P. Morgan Acquisition Corp., 958 F. Supp. 2d 637, 645 (W.D. Va. 2013); see also Sullivan v. Easco Corp., 662 F. Supp. 1396, 1408 (D. Md. 1987) (“[T]he stipulation of dismissal with prejudice constitutes a final judgment on the merits for purpose of res judicata . . . .”). Second, while Saunders, in the current Complaint, technically asserts different harms flowing from his previously asserted claims of unconstitutionality under Code § 18.2-361(A), “res judicata applies . . . so long as [the claims] arise out of the same transaction or series of transactions.” Canterbury, 958 F. Supp. 2d at 646; see also Nash Cty., 640 F.2d at 489 (“[I]n regard to the identity of the two lawsuits, it is the substance of the actions that must be compared and not their form.”) (citation omitted). Moreover, “the doctrine of res judicata not only bars claims that were actually litigated in a prior proceeding, but also claims that could have been litigated.” Pueschel v. United States, 369 F.3d 345, 355-56 (4th Cir. 2004) (citation omitted). Ultimately, res judicata bars a party’s claims from proceeding when that party merely advances “different harms or different theories or measures of relief” arising out of the same factual origin. Harnett v. Billman, 800 F.2d 1308, 1314 (4th Cir. 1986). Here, as in Saunders IX and X, the alleged harms consistently arise out of the “common origin” of Saunders’ claims: that his conviction under Code § 18.2-361(A) is unconstitutional and void. Thus, the doctrine of res judicata bars Saunders’ Complaint, which merely attempts to re-litigate that which was already dismissed, or could have been brought in one of his many prior actions. The third element of res judicata is also met because, though Commissioner Burns was never a named defendant in Saunders’ prior actions, he is in privity with prior-Defendants Terry McAuliffe and Virginia Attorney General Mark Herring. See Nash Cty., 640 F.2d at 493 n.17 (noting privity exists when one party’s “interests were adequately represented by another vested Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 9 of 14 PageID# 139 10 with the authority of representation.”); see also Harms v. United States, 972 F.2d 339, 1992 WL 203942, at *7 (4th Cir. 1992) (unpublished table opinion) (quotation omitted) (finding privity exists “between officers of the same government” if the official in the first suit “had authority to represent [the government’s] interests” in the second matter.). Here, Commissioner Burns is in privity with the Virginia Attorney General, who was named in a prior suit filed by Saunders, as well as with Virginia Governor McAuliffe, also a named defendant in Saunders’ prior litigation. 4 Accordingly, Saunders’ claims are barred. 2. Collateral Estoppel “[C]ollateral estoppel ‘forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate.’” Kloth v. Microsoft Corp., 355 F.3d 322, 326 (4th Cir. 2004) (quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998)). In evaluating the preclusive effect of prior judicial proceedings, Virginia and federal law “require[s] that the forum court give the judicial proceedings of the original court the same effect that they would have had in the jurisdiction from which they came.” Nottingham v. Weld, 237 Va. 416, 417 (1989) (construing the Full Faith and Credit Clause, 28 U.S.C. § 1738, and Va. Code § 8.01-389(B) to require this result). “It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren Cty Sch. Dist. Bd. of Educ. 465 U.S. 75, 81 (1984). Moreover, “nothing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory 4 As officers of the same government, Commissioner Burns is also in privity with the previously- named Colonel Flaherty, of the Virginia State Police. Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 10 of 14 PageID# 140 11 requirements of the predecessor 28 U.S.C. § 1738 [Good Faith and Credit Clause],” Allen v. McCurry, 449 U.S. 90, 97-98 (1980). As Allen put it: there is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding. Id. at 104. The validity of Saunders’ 2008 convictions under former Code § 18.2-361(A) has already been litigated and resolved on appeal by the Supreme Court of Virginia. The same issue has also been the subject of multiple prior actions by Saunders in this very Court (Saunders IX and X, for example). This Complaint is another attempt to re-litigate those issues. 5 Accordingly, Saunders’ claims are barred. C. The Complaint fails to state a cause of action upon which relief can be granted against Commissioner Burns as he lacks the authority to provide the relief requested. Saunders essentially seeks a declaration that his conviction is void ab initio, and that the Circuit Court orders following his 2008 conviction, as well as the Notice of Lien, are null and void. (Compl. at p.13). He also seeks injunction against further enforcement of the orders or Notice of Lien. (Compl. at p.14). The Complaint, however, lacks sufficient factual allegations demonstrating any entitlement to that relief against Commissioner Burns. There are no claims that Burns, in his official capacity, took part in any purported deprivation of a constitutional right. Moreover, Commissioner Burns is not an appropriate official to name in this action. While sovereign immunity does not preclude an Ex Parte Young action seeking injunctive relief against a State 5 Collateral estoppel bars relitigation of issues decided in prior litigation even if the defendant was a stranger to that litigation. Kloth, 355 F.3d at 326. The Supreme Court of the United States has abandoned the requirement of mutuality of estoppel. Parklane Hosier Co. v. Shore, 439 U.S. 322, 328-29 (1979). Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 11 of 14 PageID# 141 12 official, Will v. Mich Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (citing Ex Parte Young, 209 U.S. 123, 159-60 (1908)), such a suit must be brought against a State official who has authority to grant the relief sought. There must be “a ‘special relation’ between the officer being sued and the challenged statute.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). Put another way, a plaintiff must seek relief from a State official who possesses “final policymaking authority” to effect the change he seeks. Ferrer v. Garasimowicz, 1:13cv797, 2013 U.S. Dist. LEXIS 139939, at *9 (E.D. Va. Sept. 27, 2013) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Because Commissioner Burns - sued in his official capacity as Commissioner of the Virginia Department of Taxation - lacks authority to declare invalid Saunders’ conviction, Circuit Court Orders, or the Notice of Lien void, the Complaint fails to state a claim upon which any relief can be granted against Commissioner Burns. V. CONCLUSION Plaintiff’s Complaint should be dismissed with prejudice. Dated this 11 th day of October, 2016. Respectfully submitted, CRAIG M. BURNS By Counsel: /s/ Alexander K. Page Alexander K. Page* (VSB No. 78894) Assistant Attorney General Office of the Attorney General 202 North 9 th Street Richmond, Virginia 23219 Telephone: (804) 786-8198 Facsimile: (804) 371-2087 Email: apage@oag.state.va.us Mark R. Herring Attorney General of Virginia Rhodes B. Ritenour Deputy Attorney General Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 12 of 14 PageID# 142 13 Rita P. Davis Trial Section Chief/Senior Assistant Attorney General Nicholas F. Simopoulos General Civil and Trial Unit Manager/Senior Assistant Attorney General Alexander K. Page* (VSB No. 78894) Assistant Attorney General Office of the Attorney General 202 North 9 th Street Richmond, Virginia 23219 Telephone: (804) 786-8198 Facsimile: (804) 371-2087 Email: apage@oag.state.va.us *Counsel of Record for Defendant Craig M. Burns Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 13 of 14 PageID# 143 14 CERTIFICATE OF SERVICE I hereby certify that on this 11 th day of October, 2016, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing (NEF), to the following: Mark R. Colombell, Esquire ThompsonMcMullan, P.C. 100 Shockoe Slip, Third Floor Richmond, Virginia 23219 Telephone: (804) 698-6214 Facsimile: (804) 780-1813 Email: mcolombell@t-mlaw.com Counsel for Defendant Wendy S. Hughes And I further certify that on this 11 th day of October, 2016, a copy of the foregoing was sent via U.S. mail, first class postage prepaid, to the following pro se plaintiff: Michael J.G. Saunders 6716 Hill Road Chesterfield, Virginia 23234 Telephone: (804) 898-9470 Email: michaeljgsaunders@gmail.com Pro Se Plaintiff /s/ Alexander K. Page Alexander K. Page (VSB No. 78894) Assistant Attorney General Office of the Attorney General 202 North 9 th Street Richmond, Virginia 23219 Telephone: (804) 786-8198 Facsimile: (804) 371-2087 Email: apage@oag.state.va.us Counsel for Defendant Craig M. Burns Case 3:16-cv-00322-MHL Document 14 Filed 10/11/16 Page 14 of 14 PageID# 144