Bennett v. Maclsaac et al
Filing
35
MEMORANDUM OPINION re 17 MOTION to Dismiss by Susanne Eisner, Stephen Maclsaac, Pat Murphy, Abby Raphael, M. Douglas Scott; 20 MOTION to Dismiss by Richard E. Trodden. Signed by District Judge James C. Cacheris on 11/7/2011. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SALIM BENNETT
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Plaintiff,
v.
STEPHEN MACISAAC, et al.,
Defendants.
1:11cv920 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on defendants Stephen
MacIssac, M. Douglas Scott, Susanne Eisner, Abby Raphael, and
Pat Murphy’s Motion to Dismiss [Dkt. 17] and defendant Richard
Trodden’s Motion to Dismiss [Dkt. 20].
For the following
reasons, the Court will grant the defendants’ motions.
I.
A.
Background
Factual Background
Plaintiff brings a pro se Amended Complaint “as an
individual” and “as Father and Next Friend” of his five children
who are minors.
[Dkt. 13.]
The Amended Complaint’s “Statement
of Facts” suggests that Plaintiff was involved in a child
custody case in Arlington County and was prosecuted for abuse
and neglect of his children.
(Am. Compl. [Dkt. 13] ¶¶ 1-16.)
Plaintiff submits that he made an Alford plea of guilty.
1
(Am.
Compl. ¶ 3.)
Plaintiff has had numerous interactions with the
Arlington County Department of Human Services Child Protective
Services and the Arlington County Police Department.
Compl. ¶¶ 5-6, 14, 19, 28, 30-31.)
(Am.
And Plaintiff appeared
before the Arlington County Juvenile and Domestic Relations
Court several times.
(Am. Compl. ¶¶ 3-4, 7, 16, 33, 35.)
Finally, Plaintiff’s children were removed from his custody at
some point after he pled guilty.
(Am. Compl. ¶ 29.)
The Amended Complaint was filed against the Arlington
County Commonwealth’s Attorney and various employees of the
Arlington County Board and Arlington County School Board.
The
named defendants (collectively the Defendants) are: Stephen
MacIssac, the Arlington County Attorney; Richard E. Trodden,
Arlington County Commonwealth’s Attorney; M. Douglas Scott, the
Arlington Chief of Police; Susanne Eisner, the Director of the
Arlington County Department of Human Services; Abby Raphael, the
Chair of the Arlington County School Board; and Pat Murphy, the
Superintendent of the Arlington County Public Schools.
The Amended Complaint asserts that the action arises
under 42 U.S.C. § 1983 and it appears to rest primarily on
claims of due process violations.
Under the heading of “Claims
for Relief,” the Plaintiff presents five counts.
17.)1
(Am. Compl. at
The majority of the counts appear to be related to
1
The numbering of paragraphs in the Amended Complaint is inconsistent.
As a
result, some citations refer to the page number of the Amended Complaint.
2
proceedings in Arlington County Juvenile and Domestic Relations
District Court (J&DR Court) and they culminate in a request that
the children be returned to Mr. Bennett’s custody.
(Am. Compl.
at 27.)
As best as this Court can tell, Count 1 relates to
unspecified acts of bullying and harassment against unspecified
plaintiffs at school.
(Am. Compl. at 17.)
It requests a number
of broad based policy changes regarding the process of filing
complaints and conducting investigations relating to bullying.
(Am. Compl. at 18.)
For example, it requests that employees,
students, and parents be able to file a complaint or request an
investigation from the Department of Education, Department of
Justice, or local law enforcement.
(Am. Compl. at 18.)
Count 2 contains a long list of complaints relating to
the procedures used in Arlington County Juvenile and Domestic
Relations District Court, which is a court of the Commonwealth
of Virginia, not of Arlington County.
Shirley v. Drake, No. 98-
1750, 1999 U.S. App. LEXIS 7209, at *8 (4th Cir. 1999).
It
requests that the J&DR Court provide transcripts of hearings and
limit acceptance of particular documents; that judges and court
appointed lawyers not have particular relationships or undertake
particular processes; and, that the court not function under the
“Miami Method.”
(Am. Compl. at 19.)
3
Count 3 requests this Court to place the J&DR Court
and Arlington schools, police, and human services under federal
receivership.
(Am. Compl. at 20.)
sixteen policy changes.
It then requests at least
(See Am. Compl. at 20-25.)
The changes
involve topics such as, but not limited to, information in
warrants, Child Protective Services investigations and
psychological evaluations, hearings related to the removal of
children from homes, placement in the foster care system, the
ability of parents to obtain records, and immunity for Child
Protective Services workers.
(Am. Compl. at 20-25.)
Count 4 is a claim for prospective relief seeking to
prevent police officers from entering Plaintiff’s home without
legal justification.
(Am. Compl. at 25.)
Finally, Count 5 requests that the minors be returned
to Plaintiff.
(Am. Compl. at 26.)
In Count 5 Plaintiff also
seeks a temporary restraining order to suspend any further
interference by the J&DR Court and Arlington schools, police,
and human services and asks this Court to appoint a third party
to review the merits of his allegations.
B.
(Am. Compl. at 27.)
Procedural Background
Plaintiff filed a Complaint and Emergency Motion for a
Temporary Restraining Order in this Court on August 31, 2011.
[Dkts. 1, 3.]
Defendants Susanne Eisner, Stephen MacIsaac, Pat
Murphy, Abby Raphael, and M. Douglas Scott filed an opposition
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to the motion on September 1, 2011.
[Dkt. 8.]
On September 2,
this Court held a hearing in which it considered and denied
Plaintiff’s Emergency Motion for a Temporary Restraining Order.
[Dkts. 10, 11.]
At the hearing, the Plaintiff sought leave to
add his wife, Luz Negron-Bennett, as a party plaintiff, which
motion this Court granted.
[Dkt. 11.]
On September 14, 2011, Plaintiff submitted an Amended
Complaint.
[Dkt. 13.]
Ms. Negron-Bennett is not a party
plaintiff in the Amended Complaint and is therefore no longer a
party to the litigation.2
On September 29, 2011, defendants
Stephen MacIssac, M. Douglas Scott, Susanne Eisner, Abby
Raphael, and Pat Murphy filed a Motion to Dismiss the Complaint.
[Dkt. 17.]
They moved to dismiss pursuant to Federal Rules of
Civil Procedure 8, 10, 12(b)(1), 12(b)(6), and 20.
Also, on
September 29, 2011, defendant Richard E. Trodden moved to
dismiss pursuant to Federal Rules of Civil Procedure 8
12(b)(1) and 12(b)(6).
or
[Dkt. 20.]
On October 5, 2011, Plaintiff filed a Motion for
Rehearing on the Emergency TRO, New Evidence, and Appointment of
Guardian Ad Litem.
[Dkt. 23.]
requested a hearing.
October 12, 2011.
On October 7, 2011, Plaintiff
[Dkt. 26.]
Defendants filed opposition on
[Dkts. 27, 28.]
for Rehearing on October 13, 2011.
2
This Court denied the Motion
[Dkt. 29]
Also, in Plaintiff’s Motion for Rehearing Plaintiff does not list his wife
as a party and he states that he has removed her “from any affiliation with
the case.” (P. Mot. for Rehearing [Dkt. 23] at 5.)
5
On October 14, 2011, Mr. Bennett filed “More
Information for Motion for Rehearing.”
[Dkt. 30.]
And on
October 19, 2011, Mr. Bennett filed a Reply to defendants
MacIssac, Scott, Eisner, Raphael, and Murphy’s motion to
dismiss.
[Dkt. 31.]
On the same day, Mr. Bennett also filed a
Reply to defendant Trodden’s motion to dismiss.
[Dkt. 32.]
On
October 27, 2011, defendants MacIssac, Scott, Eisner, Raphael,
and Murphy filed a Rebuttal [Dkt. 33] and defendant Trodden
filed a Reply [Dkt. 34].
The motions to dismiss are now before the Court.
II.
Standard of Review
A. Jurisdiction
Pursuant to Rule 12(b)(1), a claim may be dismissed
for lack of subject matter jurisdiction.
12(b)(1).
Fed. R. Civ. P.
Defendants may attack subject matter jurisdiction in
one of two ways.
First, defendants may contend that the
complaint fails to allege facts upon which subject matter
jurisdiction may be based.
See Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); King v. Riverside Reg'l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).
In such instances, all facts
alleged in the complaint are presumed to be true.
Adams, 697
F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540
(E.D. Va. 1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
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Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.
In that
situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”
Virginia v. United States, 926 F.
Supp. at 540 (citing Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993)); see also Velasco v. Gov't of Indonesia,
370 F.3d 392, 398 (4th Cir. 2004) (holding that “the district
court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment”); Adams, 697 F.2d at
1219; Ocean Breeze Festival Park, Inc. v. Reich, 853 F. Supp.
906, 911 (E.D. Va. 1994).
In either circumstance, the burden of
proving subject matter jurisdiction falls on the plaintiff.
McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Adams, 697 F.2d at 1219; Johnson v. Portfolio Recovery
Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009) (holding that
“having filed this suit and thereby seeking to invoke the
jurisdiction of the Court, Plaintiff bears the burden of proving
that this Court has subject matter jurisdiction”).
B. Failure to State a Claim
Rule 12(b)(6) allows a court to dismiss those
allegations which fail “to state a claim upon which relief can
be granted.”
Fed. R. Civ. P. 12(b)(6).
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A court may dismiss
claims based upon dispositive issues of law.
Spalding, 467 U.S. 69, 73 (1984).
Hishon v. King &
The alleged facts are
presumed true, and the complaint should be dismissed only when
“it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”
Id.
In deciding a 12(b)(6) motion, a court must first be
mindful of the liberal pleading standards under Rule 8, which
require only “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8.
While Rule 8 does not require “detailed factual allegations,” a
plaintiff must still provide “more than labels and conclusions”
because “a formulaic recitation of the elements of a cause of
action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555-56 (2007)(citation omitted).
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, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570).
“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.
However, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
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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, 129 S. Ct. at 1949-50.
C. Pro Se Plaintiff
The Court construes the pro se Amended Complaint in
this case more liberally than those drafted by an attorney.
Haines v. Kerner, 404 U.S. 519, 520 (1972).
See
Further, the Court
is aware that “[h]owever inartfully pleaded by a pro se
plaintiff, allegations are sufficient to call for an opportunity
to offer supporting evidence unless it is beyond doubt that the
plaintiff can prove no set of facts entitling him to relief.”
Thompson v. Echols, No. 99-6304, 1999 U.S. App. LEXIS 22373,
1999 WL 717280, at *1 (4th Cir. 1999) (citing Cruz v. Beto, 405
U.S. 319 (1972)).
Nevertheless, while pro se litigants cannot
“be expected to frame legal issues with the clarity and
precision ideally evident in the work of those trained in law,
neither can district courts be required to conjure up and decide
issues never fairly presented to them.”
Beaudett v. City of
Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).
Thus, even in
cases involving pro se litigants, as in here, the Court “cannot
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be expected to construct full blown claims from sentence
fragments.”
Id. at 1278.
III. Analysis
Together the Defendants have moved to dismiss pursuant
to Federal Rules of Civil Procedure 8, 10, 12(b)(1), 12(b)(6),
and 20.
Because this Court will find for the Defendants under
Rules 8, 12(b)(1), and 12(b)(6), this Court will not address
Defendants’ other arguments.
A.
Jurisdiction
The Court begins by noting that Plaintiff, as a nonattorney parent, cannot bring an action pro se on behalf of his
children.
In order to invoke the jurisdiction of this Court,
Plaintiff must establish that he has standing, that is, has
suffered the injury or threatened injury sought to be redressed
by the action.
See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (setting forth the three-part constitutional
test for standing).
And in the Fourth Circuit, “non-attorney
parents generally may not litigate the claims of their minor
children in federal court.”
Myers v. Loudoun Cnty. Pub. Schs,
418 F.3d 395, 401 (4th Cir. 2005).
See also Shaw v. Lynchburg
Dep't of Soc. Servs., No. 6:08cv00022, 2009 U.S. Dist. LEXIS
6659, at *13-14 (W.D. Va. Jan. 29, 2009).
The Court explained
that “[t]he right to litigate for oneself [] does not create a
coordinate right to litigate for others.”
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Id. at 400.
Thus, to the extent that Plaintiff’s “Claims for
Relief” are brought on behalf of his children, this Court does
not have jurisdiction.3
And as a result, this Court finds that
it does not have jurisdiction over Count 1, which alleges
unspecified acts of bullying and harassment of children at
school.
Any claim of bullying and harassment would be personal
to the child and not to Plaintiff.4
dismissed under Rule 12(b)(1).
Accordingly, Count 1 is
The Court will assume that
Plaintiff brings the remaining counts individually.
B. Failure to State a Claim
The Court first turns to what is required to bring an
action under § 1983.
A federal civil rights claim based upon §
1983 has two essential elements: “[A] plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
Crosby
v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011) (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)).
Thus, “a plaintiff
must plead that each Government-official defendant, through the
official’s own individual actions, has violated the
Constitution.”
Iqbal, 129 S.Ct. at 1948. “[A] local government
3
Plaintiff requests the Court to appoint a next friend or guardian ad litem
to represent the minors. The Court declines to do so because a guardian ad
litem has already been appointed for Mr. Bennett’s children in the state
custody proceedings and, as discussed below, Mr. Bennett has not stated a
claim upon which relief can be granted.
4
Even if this Court had jurisdiction over Count 1, it would not survive a
motion to dismiss because, like the other counts discussed below, it fails to
allege an action taken by any particular Defendant under the color of law.
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may not be sued under § 1983 for an injury inflicted solely by
its employees or agents.
Instead, it is when execution of a
government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible.”
Monell v. Dept. of
Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
Upon careful review of the allegations in all of
Plaintiff’s submissions, the Court finds that Mr. Bennett fails
to allege any action taken by any Defendant under color of state
law.
The Defendants are named in the caption of the Amended
Complaint and in a description of their job duties, but none of
them are ever mentioned again in the body of the Amended
Complaint.
The Amended Complaint provides no statement that any
of the Defendants, much less that each one individually,
violated Plaintiff’s constitutional rights.
Nor does Plaintiff
state that any particular Defendant did so pursuant to a
government policy or custom.
“Where a complaint alleges no
specific act or conduct on the part of the defendant and the
complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed,
even under the liberal construction to be given pro se
complaints.”
Lewis v. Lappin, No. 3:10cv426, 2011 U.S. Dist.
LEXIS 62522, at *5 (E.D. Va. June 13, 2011)(citing Potter v.
Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)).
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Furthermore, in a § 1983 action, the Defendants cannot
be held liable for the actions of a subordinate on a theory of
respondeat superior.
(4th Cir. 1977).
See Vinnedge v. Gibbs, 550 F.2d 926, 928
And Plaintiff falls far short of alleging
supervisory liability under § 1983.
The three elements required
to establish such liability are:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that
posed “a pervasive and unreasonable risk” of constitutional
injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge was so
inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices”; and
(3) that there was an “affirmative causal link” between the
supervisor's inaction and the particular constitutional
injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
In order to
overcome a motion to dismiss, Plaintiff must have alleged facts
sufficient to plausibly suggest an entitlement to relief under
this standard.
Plaintiff has not met this burden, nor has
Plaintiff met the burden under Iqbal and Twombly.5
5
Accordingly,
The Court notes that Defendants would likely be able to assert absolute or
qualified immunity defenses, but the Amended Complaint does not provide
enough detail for the Court to determine the appropriateness of those
defenses.
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Counts 2 through 5 are dismissed under Federal Rules of Civil
Procedure 8 and 12(b)(6).
IV.
Conclusion
For these reasons, the Court will grant both of the
Defendant’s motions to dismiss.
An appropriate Order will issue.
November 7, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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