Case: Schilling v. Washburne

3:21-cv-00022 | U.S. District Court for the Western District of Virginia

Filed Date: June 21, 2021

Closed Date: Aug. 26, 2022

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Case Summary

This case is about an alleged infringement on an individual's right to vote due to his failure to wear a mask during the COVID-19 pandemic. On June 6, 2021, plaintiff filed this lawsuit in the U.S. District Court for the Western District of Virginia. The plaintiff sued the Chief Officer of Elections for the Electoral Board in Albemarle County and two anonymous poll workers, under 42 U.S.C. § 1983 and 52 U.S.C. § 10307(b), seeking declaratory and injunctive relief in addition to attorneys’ fees…

This case is about an alleged infringement on an individual's right to vote due to his failure to wear a mask during the COVID-19 pandemic.

On June 6, 2021, plaintiff filed this lawsuit in the U.S. District Court for the Western District of Virginia. The plaintiff sued the Chief Officer of Elections for the Electoral Board in Albemarle County and two anonymous poll workers, under 42 U.S.C. § 1983 and 52 U.S.C. § 10307(b), seeking declaratory and injunctive relief in addition to attorneys’ fees. The plaintiff alleged that the defendants engaged in intimidation tactics that were motivated by an attempt to prevent or hinder the plaintiff from voting. Plaintiff also claimed intentional torts of assault, battery, and false imprisonment during the encounter. The case was assigned to Magistrate Judge Joel C. Hoppe and Senior Judge Norman K. Moon.

Prior to the election, the plaintiff confirmed with the defendants that masks, mandated in public places during the COVID-19 pandemic, were not required to vote in Albemarle County. Upon arriving to vote, the plaintiff was stopped by two poll workers who refused to allow the plaintiff to enter the polling area because he was not wearing a mask. This led to a physical altercation in which one of the poll workers urged the plaintiff to exit the building by stepping in front of the plaintiff, causing bodily contact. The poll worker then grabbed the plaintiff’s arm. The poll worker was then asked to remove his arm by the plaintiff, and the poll worker did such, but the second poll worker approached the plaintiff, doing the same as the first poll worker. This interaction lasted six minutes before the plaintiff was able to cast his vote.

On July 14, 2021, the defendants filed a Motion to Dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argued that the two claims the plaintiff made are repetitive and that only § 1983 applied, because § 10307(b) does not authorize a private cause of action. The defendants also argued that they could not be held liable for respondeat superior claims, a claim brought against employers for the actions of their employee, under § 1983 because no action was taken to violate the plaintiff’s federal rights. Furthermore, the defendants denied liability for the assault, battery, and false imprisonment claims under the theory of respondeat superior because the poll workers were not in an employee/employer relationship with the general registrar for the Electoral Board.

On October 18, 2021, the plaintiff filed a Motion to Amend the Complaint to include the names of the poll worker defendants which the court granted on November 29, 2021.

On March 18, 2022, defendant’s Motion to Dismiss the Amended Complaint was granted in part to count two, the violation of § 10307(b), and denied on all other counts. The first count of the violation of the right to vote met the standard because, if assumed to be true, the attempt to remove the plaintiff from the polling location was a “severe burden on his right” to vote. The state claims were not dismissed because the facts alleged were “sufficient to raise a plausible inference”.

On August 4, 2022, plaintiff and defendants filed a joint motion to stay the case, pending settlement. The case was subsequently dismissed on August 26, 2022, by an order from Senior Judge Moon.

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Summary Authors

David Gueye (7/19/2024)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/59999868/parties/schilling-v-mallek/

Judge(s)

Moon, Norman K. (Virginia)

Attorney for Plaintiff

Hardin, Matthew Daniel (Virginia)

Attorney for Defendant

Andrews, Travis Stuart (Virginia)

Carey, David (Virginia)

Guynn, Jim H. (Virginia)

Judge(s)

Moon, Norman K. (Virginia)

Attorney for Plaintiff

Hardin, Matthew Daniel (Virginia)

Attorney for Defendant

Andrews, Travis Stuart (Virginia)

Carey, David (Virginia)

Guynn, Jim H. (Virginia)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
1 3:21-cv-00022	Complaint for Damages and for Declaratory and Injunctive Relief	June 21, 2021	June 21, 2021 Complaint
7 3:21-cv-00022	Memorandum in Support of Motion to Dismiss of Defendants Washburne and Mallek	July 14, 2021	July 14, 2021 Pleading / Motion / Brief
6 3:21-cv-00022	Motion to Dismiss of Defendants Washburne and Mallek	July 14, 2021	July 14, 2021 Pleading / Motion / Brief
17 3:21-cv-00022	Robert Schilling's Opposition to Motion to Dismiss	Aug. 6, 2021	Aug. 6, 2021 Pleading / Motion / Brief
21 3:21-cv-00022	Reply Memorandum in Support of Motion to Dismiss of Defendants Washburne and Mallek	Aug. 13, 2021	Aug. 13, 2021 Pleading / Motion / Brief
31 3:21-cv-00022	First Amended Complaint for Damages and for Declaratory and Injunctive Relief Schilling v. Mallek	Nov. 29, 2021	Nov. 29, 2021 Complaint
38 3:21-cv-00022	Memorandum Opinion	March 18, 2022	March 18, 2022 Order/Opinion 592 F.Supp.3d 492
39 3:21-cv-00022	Order	March 18, 2022	March 18, 2022 Order/Opinion
47 3:21-cv-00022	Joint Stipulation of Dismissal Schilling v. Mallek	Aug. 25, 2022	Aug. 25, 2022 Pleading / Motion / Brief
48 3:21-cv-00022	Order of Dismissal Schilling v. Mallek	Aug. 26, 2022	Aug. 26, 2022 Order/Opinion

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/59999868/schilling-v-mallek/

Last updated Aug. 9, 2025, 10:09 p.m.

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against John Does 1 and 2, Leo Mallek, Richard Jake Washburne (Filing & Administrative fee $ 402. Receipt number AVAWDC-3727044.), filed by Robert Schilling. (Attachments: # 1 Civil Cover Sheet)(dg) 1 Civil Cover Sheet View on PACER	June 21, 2021	June 21, 2021 RECAP
2	Electronic Summons Issued as to Leo Mallek, Richard Jake Washburne NOTICE TO COUNSEL: Please print copies of the electronically issued summons for each defendant as necessary to effectuate service under Fed. R. Civ. P. 4. (Attachments: # 1 Summons Issued)(dg) 1 Summons Issued View on RECAP	June 21, 2021	June 21, 2021 RECAP
3	RETURN of service of Summons & Complaint on 6/23/2021 upon Richard "Jake" Washburn(Hardin, Matthew)	June 24, 2021	June 24, 2021 RECAP
4	RETURN of service of Summons & Complaint on 6/23/2021 upon Leo Mallek (POSTED)(Hardin, Matthew)	June 24, 2021	June 24, 2021 RECAP
5	CERTIFICATE OF SERVICE by Robert Schilling re 2 Electronic Summons Issued, 1 Complaint (Attachments: # 1 Exhibit A (NOTICE PURSUANT TO VA. CODE § 8.01-296 (2)(b)), # 2 Envelope)(Hardin, Matthew) 1 Exhibit A (NOTICE PURSUANT TO VA. CODE § 8.01-296 (2)(b)) View on RECAP 2 Envelope View on RECAP	June 25, 2021	June 25, 2021 RECAP
6	MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Leo Mallek, Richard Jake Washburne. (Guynn, Jim)	July 14, 2021	July 14, 2021 RECAP
7	Brief / Memorandum in Support re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . filed by Leo Mallek, Richard Jake Washburne. (Guynn, Jim)	July 14, 2021	July 14, 2021 RECAP
8	PRETRIAL ORDER, CASE REFERRED to Magistrate Judge Joel C. Hoppe. Signed by Senior Judge Norman K. Moon on 07/19/2021. (dg)	July 19, 2021	July 19, 2021 RECAP
9	NOTICE of Hearing: (N) Scheduling Conference set for 8/30/2021 10:00 AM by telephone conference before Magistrate Judge Joel C. Hoppe. Dial in information emailed to counsel.(kld)	July 20, 2021	July 20, 2021 PACER
	Notice of Hearing	July 20, 2021	July 20, 2021 PACER
10	MOTION to Amend/Correct 8 Pretrial Order, Case Referred to Magistrate Judge by Robert Schilling. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A)(Hardin, Matthew) 1 Memorandum in Support View on RECAP 2 Exhibit A View on RECAP	July 22, 2021	July 22, 2021 RECAP
11	MOTION for Extension of Time to File Response/Reply as to 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, 7 Brief / Memorandum in Support by Robert Schilling. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Hardin, Matthew) 1 Text of Proposed Order View on PACER	July 26, 2021	July 26, 2021 PACER
12	Oral ORDER granting in part and taking under advisement 11 Motion for Extension of Time to File Response/Reply. The time for plaintiff to respond to defendants' motion to dismiss is extended to August 6, 2021. In the next few days, the court intends to hold a combined scheduling conference and hearing on plaintiff's motion to amend the pretrial order. Entered by Magistrate Judge Joel C. Hoppe on 7/27/21. This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.(JCH)	July 27, 2021	July 27, 2021 PACER
13	NOTICE of Hearing on Motion 10 MOTION to Amend/Correct 8 Pretrial Order and Scheduling Conference: (FTR) Motion Hearing set for 7/29/2021 09:30 AM by telephone conference before Magistrate Judge Joel C. Hoppe. Dial in information emailed to counsel.(kld)	July 27, 2021	July 27, 2021 PACER
	Order on Motion for Extension of Time to File Response/Reply	July 27, 2021	July 27, 2021 PACER
	Notice of Hearing on Motion	July 27, 2021	July 27, 2021 PACER
14	Log Notes for Motion Hearing in the Harrisonburg Division held before Judge Joel C. Hoppe on 7/29/21. In accordance with 28 USC 753(b), I certify that I monitored the digital recording of this proceeding and that it is a true and correct record, that it is sufficiently intelligible when played on the FTR (For the Record) Player, and that it can be transcribed without undue difficulty. AT&T Conf Manager: Karen Dotson (kld)	July 29, 2021	July 29, 2021 RECAP
15	Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Motion Hearing held on 7/29/2021 re 10 MOTION to Amend/Correct 8 Pretrial Order, Case Referred to Magistrate Judge filed by Robert Schilling. (AT&T Conf Manager: Karen Dotson) (kld)	July 29, 2021	July 29, 2021 RECAP
16	ORDER granting in part 10 Motion to Amend/Correct. Plaintiff shall respond to the motion to dismiss no later than August 6, 2021. Signed by Magistrate Judge Joel C. Hoppe on 7/29/21. (kld)	July 29, 2021	July 29, 2021 RECAP
17	RESPONSE in Opposition re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . filed by Robert Schilling. (Attachments: # 1 Exhibit A)(Hardin, Matthew) 1 Exhibit A View on PACER	Aug. 6, 2021	Aug. 6, 2021 RECAP
18	NOTICE of Hearing: (CR) (No Interpreter requested) Jury Trial set for November 17-18, 2022 09:30 AM in Charlottesville before Senior Judge Norman K. Moon. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (hnw)	Aug. 10, 2021	Aug. 10, 2021 PACER
	Notice of Hearing	Aug. 10, 2021	Aug. 10, 2021 PACER
19	REPORT of Rule 26(f) Planning Meeting (Guynn, Jim)	Aug. 11, 2021	Aug. 11, 2021 RECAP
20	NOTICE of Hearing on Motion 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : (CR) (No Interpreter requested) (Click on this link for guidance for participation via Zoom and Click on this link for instructions on how to listen to public hearings)Video Motion Hearing set for 9/15/2021 10:00 AM in Charlottesville before Senior Judge Norman K. Moon. (hnw)	Aug. 12, 2021	Aug. 12, 2021 PACER
	Notice of Hearing on Motion	Aug. 12, 2021	Aug. 12, 2021 PACER
21	REPLY to Response to Motion re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . filed by Leo Mallek, Richard Jake Washburne. (Guynn, Jim)	Aug. 13, 2021	Aug. 13, 2021 RECAP
22	ORDER - The Court hereby ADOPTS the deadline modifications proposed in the Joint Rule 26(f) Plan and AMENDS the Pretrial Order. Signed by Magistrate Judge Joel C. Hoppe on 08/17/2021. (dg)	Aug. 17, 2021	Aug. 17, 2021 RECAP
23	Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Telephonic Court Hearing held on 8/30/2021. Plaintiff's counsel not on call, Scheduling Conference to be reset. (kld)	Aug. 30, 2021	Aug. 30, 2021 PACER
	Court Hearing	Aug. 30, 2021	Aug. 30, 2021 PACER
24	NOTICE of Hearing: (N) Scheduling Conference set for 9/24/2021 09:00 AM by telephone conference before Magistrate Judge Joel C. Hoppe. Dial in information emailed to counsel.(kld)	Sept. 3, 2021	Sept. 3, 2021 PACER
	Notice of Hearing	Sept. 3, 2021	Sept. 3, 2021 PACER
25	Minute Entry for proceedings held before Senior Judge Norman K. Moon: Motion Hearing held on 9/15/2021 re 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Leo Mallek, Richard Jake Washburne. (Court Reporter: Mary Butenschoen) (hnw)	Sept. 15, 2021	Sept. 15, 2021 RECAP
26	NOTICE by Robert Schilling of Intent to File Motion for Leave to Amend (Hardin, Matthew)	Sept. 23, 2021	Sept. 23, 2021 RECAP
27	Minute Entry for proceedings held before Magistrate Judge Joel C. Hoppe: Scheduling Conference held in chambers on 9/24/2021. (kld)	Sept. 24, 2021	Sept. 24, 2021 PACER
	Scheduling Conference	Sept. 24, 2021	Sept. 24, 2021 PACER
28	First MOTION to Amend/Correct 1 Complaint by Robert Schilling. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Proposed Amended Complaint)(Hardin, Matthew) 1 Proposed Amended Complaint View on PACER	Oct. 18, 2021	Oct. 18, 2021 PACER
29	Consent MOTION Amendment of Complaint and other relief re 28 First MOTION to Amend/Correct 1 Complaint by Robert Schilling. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Hardin, Matthew) 1 Text of Proposed Order View on PACER	Nov. 26, 2021	Nov. 26, 2021 RECAP
30	ORDER granting 28 Motion to Amend/Correct; granting 29 Consent Motion. Signed by Senior Judge Norman K. Moon on 11/29/2021. (dg)	Nov. 29, 2021	Nov. 29, 2021 PACER
31	AMENDED COMPLAINT against Leo Mallek, David Carey, Lawrence Bouterie, filed by Robert Schilling.(dg)	Nov. 29, 2021	Nov. 29, 2021 RECAP
32	Proposed Summons for Lawrence Bouterie & David Carey by Robert Schilling (Hardin, Matthew)	Nov. 29, 2021	Nov. 29, 2021 RECAP
33	Electronic Summons Issued as to Lawrence Bouterie, David Carey NOTICE TO COUNSEL: Please print copies of the electronically issued summons for each defendant as necessary to effectuate service under Fed. R. Civ. P. 4. (Attachments: # 1 Summons Issued)(dg) 1 Summons Issued View on PACER	Nov. 30, 2021	Nov. 30, 2021 PACER
34	NOTICE by Robert Schilling re 33 Service upon David Carey (Hardin, Matthew)	Dec. 9, 2021	Dec. 9, 2021 RECAP
35	RETURN of service of Summons & Amended Complaint on 12/2/2021 upon Lawrence Bouterie(Hardin, Matthew)	Dec. 20, 2021	Dec. 20, 2021 RECAP
36	ANSWER to 31 Amended Complaint by Lawrence Bouterie.(Guynn, Jim)	Dec. 23, 2021	Dec. 23, 2021 RECAP
37	WAIVER OF SERVICE Returned Executed by David Carey. David Carey waiver sent on 2/7/2022, answer due 4/8/2022.(Guynn, Jim)	Feb. 8, 2022	Feb. 8, 2022 RECAP
38	MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 03/18/2022. (dg)	March 18, 2022	March 18, 2022 RECAP
39	ORDER granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. The motion is GRANTED with respect to Count Two and DENIED with respect to all other counts. Signed by Senior Judge Norman K. Moon on 03/18/2022. (dg)	March 18, 2022	March 18, 2022 RECAP
40	NOTICE of Appearance by Travis Stuart Andrews on behalf of Lawrence Bouterie, David Carey, Leo Mallek (Andrews, Travis)	April 1, 2022	April 1, 2022 RECAP
41	ANSWER to 31 Amended Complaint by Leo Mallek.(Andrews, Travis)	April 1, 2022	April 1, 2022 RECAP
42	ANSWER to 31 Amended Complaint by David Carey.(Andrews, Travis)	April 8, 2022	April 8, 2022 RECAP
43	Joint MOTION to Stay Pending Settlement by Robert Schilling. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Hardin, Matthew) 1 Text of Proposed Order View on RECAP	Aug. 4, 2022	Aug. 4, 2022 RECAP
44	MOTION to Withdraw as Attorney (Travis S. Andrews) by Lawrence Bouterie, David Carey, Leo Mallek. Motions referred to Judge Joel C. Hoppe. (Attachments: # 1 Text of Proposed Order)(Andrews, Travis) 1 Text of Proposed Order View on PACER	Aug. 5, 2022	Aug. 5, 2022 RECAP
45	ORAL ORDER granting 43 Motion to Stay. The case is not stayed, but all case deadlines are stayed for thirty (30) days. The parties are directed to file a joint status report at the end of the thirty-day period if the case is not dismissed. Entered by Magistrate Judge Joel C. Hoppe on 8/5/22. This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.(JCH)	Aug. 5, 2022	Aug. 5, 2022 PACER
46	ORAL ORDER granting 44 Motion to Withdraw as Attorney. Attorney Travis Stuart Andrews terminated. Entered by Magistrate Judge Joel C. Hoppe on 8/5/22. This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.(JCH)	Aug. 5, 2022	Aug. 5, 2022 PACER
	Order on Motion to Stay	Aug. 5, 2022	Aug. 5, 2022 PACER
	Order on Motion to Withdraw as Attorney	Aug. 5, 2022	Aug. 5, 2022 PACER
47	STIPULATION of Dismissal by Robert Schilling (Hardin, Matthew)	Aug. 25, 2022	Aug. 25, 2022 RECAP
48	ORDER DISMISSING CASE WITH Prejudice. Signed by Senior Judge Norman K. Moon on 08/26/2022. (dg)	Aug. 26, 2022	Aug. 26, 2022 RECAP
49	Notice of Cancellation of Jury Trial set for November 17 - 18, 2022. (Cancel Court Reporter) (ca)	Aug. 26, 2022	Aug. 26, 2022 PACER
	Notice of Cancellation of Hearing	Aug. 26, 2022	Aug. 26, 2022 PACER