Because of a lawyer's inaction, a federal judge threw out a lawsuit filed last year against the Logan County Board of Education by the mother of a teenager who wore a National Rifle Association T-shirt to school.
The lawsuit, which claimed the woman's son's constitutional rights had been violated, was dismissed without prejudice, meaning it can be refiled.
U.S. District Court Judge Thomas Johnston dismissed the case based on the inaction of plaintiff's attorney, Benjamin White.
White, of Chapmanville, filed the lawsuit in April 2015 on behalf of Tanya Lardieri and her then-minor son, Jared Marcum. Marcum was charged in 2013 by police with disrupting an educational process and obstructing an officer after he was asked to turn the shirt inside out or face suspension by Logan Middle School staff. The charges against him were eventually dismissed.
White waited four months after filing the lawsuit before requesting that the defendants be served with a copy of the complaint, according to Johnston's Jan. 13 order.
"Other than this action, the docket does not reflect any significant activity by plaintiffs in the nearly nine-month interval since the lawsuit was filed. The docket does reflect, however, a consistent history of non-responsiveness on the part of plaintiffs, both to defendants' filings and to an order of this court," Johnston wrote.
White never responded to motions in the case, including those filed by defense attorneys asking that the case be dismissed based on White's failure to prosecute his case.
Johnston entered an order Dec. 3, requiring plaintiffs to explain the inaction. The judge warned that if White failed to respond by Dec. 14 the case would be dismissed with prejudice.
"This Court has already specifically warned Plaintiffs that the case would be dismissed unless they demonstrated some cause as to their failure to prosecute, only to have that warning fall on deaf ears," the judge wrote.
Johnston decided that dismissing the case with prejudice would be too harsh because it appeared that White did take part in a conference about the case earlier this month.
White said Saturday he plans to refile the lawsuit next week.
He said he's had financial problems as a result of the economy and had to downsize his law practice.
"I have one part-time employee now and when I was doing well, I had six full-time employees," White said Saturday.
On Jan. 15, an Assistant U.S. Attorney filed a petition in federal court which asks a judge to force White to comply with a summons issued by the Internal Revenue Service.
According to the petition, an IRS officer is investigating White's ability to pay nearly $38,000 in employment taxes.
An administrative summons was issued last April, which asked White to provide an IRS officer a list of his client's names, social security numbers and addresses as of May 19, 2015, and to update the list on a weekly basis thereafter.
The petition states White never complied with the summons.
A later mailing from the IRS, the petition states, informed White that he didn't have to produce the social security numbers of clients.
As of Jan. 15, the IRS hasn't referred White's case to the U.S. Department of Justice for a grand jury investigation or criminal prosecution, Assistant U.S. Attorney Gary Call wrote in the petition.
Charges of assault and battery on a police officer filed in 2013 were dismissed against White last year.
White was accused in December 2013 of making an obscene gesture toward three State Police troopers as he walked past them in a restaurant.
A magistrate dismissed the case, saying that White had been exercising his rights of free speech and expression.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.
