Jarvis v. The City of Alexandria Mayor's Office et al

Filing 16

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 06/12/2017. (jlan) (c/s to pro se Plaintiff)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
DEREK N. JARVIS,
Plaintiff,
v.

CITY OF ALEXANDRIA, et al.,
Defendants.

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M E M O R A N D U M

1:17CV378 (JCC/JFA)

O P I N I O N

This matter is before the Court on the Defendants’
Motion to Dismiss Plaintiff’s Complaint for Failure to State a
Claim.

[Dkt. 8.]

filing injunction.

This motion includes a request for a preFor the following reasons, the Court will

grant Defendants’ motion to dismiss.

The Court will also

schedule a hearing on Defendants’ request for an injunction.
I.

Background

This case is brought by pro se Plaintiff Derek N.
Jarvis (“Plaintiff” or “Jarvis”) against the Alexandria Mayor’s
Office, City Council, and City Manager 1 (collectively, the

1

Plaintiff’s Complaint includes various allegations against different city
agencies and their officials. As a result, it is difficult to identify who
exactly Plaintiff thinks he is suing. In the case name, for example, he
specifically lists the City of Alexandria Mayor’s Office, City Council, and
City Manager as Defendants. Compl. at 1. Throughout the body of his
Complaint, however, he also refers to allegations against county attorneys (a
fictitious entity that does not exist) and the city attorney. Because

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“Defendants”) for alleged violations of his constitutional
rights, negligence, and fraud.

Compl. at 1-3.

The following

facts are taken from Plaintiff’s Complaint and, for the purposes
of this motion, are presumed true.
On an unspecified date, Plaintiff visited an
unspecified Shell gas station located in the Old Town
neighborhood of Alexandria, Virginia.

Compl. at 1.

While

paying for gas, Plaintiff alleges that a Middle Eastern employee
at the station referred to him with a racial slur and yelled at
him in front of other patrons.

Id.

Plaintiff asserts that he

attempted to contact the station’s manager and owner after the
incident, but neither individual ever responded.

Id. at 6.

On or about August 13, 2016, Plaintiff filed a
complaint with the Office of Human Rights (“OHR”) in Alexandria,
alleging racial discrimination by the Shell gas station
employee.

Compl. at 6.

Plaintiff claims that OHR’s

investigation of his complaint lasted approximately two weeks.
Id.

After failing to properly investigate his claim, Plaintiff

further alleges that the director of OHR, Jean Kelleher, then
informed him that the incident at the gas station did not amount
to racial discrimination.
complaint.

Id.

Id.

As a result, she dismissed his

Following dismissal, Plaintiff proceeded to

Plaintiff served only the Alexandria Mayor’s Office, City Council, and City
Manager [Dkts. 6, 7], the Court will grant Defendants’ motion to dismiss
claims against all other city agencies or officials.

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contact the City Manager, the Mayor’s Office, and the City
Attorney for assistance, but found their help unavailing.

Id.

Plaintiff filed the instant lawsuit on March 30, 2017.
[Dkt. 1.]

On May 4, 2017, Defendants filed their motion to

dismiss for failure to state a claim.

[Dkt. 8.]

Plaintiff

filed his response in opposition on May 18, 2017, [Dkt. 12], to
which Defendants replied on May 22, 2017, [Dkt. 13].

On May 26,

2017, Plaintiff requested leave to file a surreply [Dkt. 14], to
which Defendants objected [Dkt. 15.]

Having waived oral

argument, Defendants’ motion is now ripe for disposition.
II.
A.

Standard of Review

Motion to Dismiss Under Rule 12(b)(6)
“A motion to dismiss under Rule 12(b)(6) tests the

sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”

Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).

The

Supreme Court has stated that in order “[t]o survive a motion to
dismiss, a [c]omplaint 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the pleaded factual

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content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.”

Iqbal, 556 U.S. at 679 (citations omitted).

While legal conclusions can provide the framework for a
complaint, all claims must be supported by factual allegations.
Id.

Based upon these allegations, the court must determine

whether the plaintiff’s pleadings plausibly give rise to an
entitlement for relief.

Id.

Legal conclusions couched as

factual allegations are not sufficient, Twombly, 550 U.S. at
555, nor are “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship,
213 F.3d 175, 180 (4th Cir. 2000).

The plaintiff, however, does

not have to show a likelihood of success; rather, the complaint
must merely allege-directly or indirectly-each element of a
“viable legal theory.”

Twombly, 550 U.S. at 562-63.

At the motion to dismiss stage, the court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Iqbal, 556 U.S. at 678.

Generally, a

district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6).
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It may, however,

consider “documents incorporated into the complaint by
reference.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007); see also Blankenship v. Manchin, 471 F.3d
523, 526 n.1 (4th Cir. 2006).

In addition, the court may

consider documents attached to a defendant’s motion to dismiss
if those documents are central to the plaintiff’s claim or are
“sufficiently referred to in the complaint,” so long as the
plaintiff does not challenge their authenticity.

Witthohn v.

Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
The Court construes the pro se Complaint in this case
more liberally than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).

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 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, the
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Court “cannot be expected to construct full blown claims from
sentence fragments.”

Id. at 1278.

Further, the Court may not

construct a plaintiff's legal arguments for him or her. See,
e.g., Small v. Endicott, 998 F.2d 411, 417–18 (7th Cir. 1993).
B.

Request for Pre-Filing Injunction
“Federal courts [do] have the authority to issue pre-

filing injunctions against vexatious litigants.”

Thomas v.

Fulton, 2008 WL 64651, at *1 (4th Cir. Jan. 7, 2008) (citing
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir.
2004)).

In doing so, however, courts should take care not to

“limit [in any way] a litigant's access to the courts absent
exigent circumstances, such as a litigant's continuous abuse of
the judicial process by filing meritless and repetitive
actions.”

Cromer, 390 F.3d at 817–18 (internal quotation marks

and citation omitted).
To decide whether to issue a pre-filing injunction,
district courts should consider the following factors:
(1) the party's history of litigation, in particular
whether he has filed vexatious, harassing, or
duplicative lawsuits; (2) whether the party had a good
faith basis for pursuing the litigation, or simply
intended to harass; (3) the extent of the burden on
the courts and other parties resulting from the
party's filings; and (4) the adequacy of alternative
sanctions.
Id. at 818 (citations omitted).

Once a court decides that a

pre-filing injunction is warranted, the court “must ensure that

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the injunction is narrowly tailored to fit the specific
circumstances at issue.”
citation omitted).

Id. (internal quotation marks and

Moreover, before a court issues the pre-

filing injunction, it must afford the litigant notice and an
opportunity to be heard.

Id. at 819.

This notice must be

sufficient to ensure that the litigant has a chance to oppose
the court’s order before it is entered.

Id. (internal citations

and quotations omitted).
III. Analysis
A.

Motion to Dismiss Under Rule 12(b)(6)
Plaintiff’s Complaint alleges the following possible

causes of action: (1) unlawful racial discrimination, depriving
him of due process and equal protection, in violation of 42
U.S.C. §§ 1981, 1983; (2) negligence; and (3) fraud.
2-3.

Compl. at

As the Court will further explain, each of these claims is

meritless.
Although Plaintiff’s Complaint is hard to follow, at
its essence, it focuses on OHR’s alleged erroneous determination
that he had not been the victim of racial discrimination at the
Shell gas station.

See id. at 2.

Plaintiff contends that OHR

failed to properly investigate his complaint and refused to
allow him to rebut the alleged false statements that other
individuals had made.

Id. at 6.

Furthermore, Plaintiff argues

that the City of Alexandria and its various officials and
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agencies failed to step in to correct OHR’s error after
Plaintiff alerted them to the issue.

Id. at 8.

For that

reason, Defendant asserts that Defendants infringed upon his
constitutional rights, acted negligently, and committed fraud.
Here, because the named defendants are state actors,
Plaintiff cannot recover under Section 1981.

See Jett v. Dallas

Independent Sch. Dist., 491 U.S. 701, 731-35 (1981) (holding
when a claim is made against a state actor, § 1983 provides
exclusive federal damages remedy for violation of rights
guaranteed by § 1981).

Accordingly, the Court will dismiss

Plaintiff’s Section 1981 claim under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted.
Plaintiff’s allegations under Section 1983 fare no
better.

To state a plausible claim for relief against a

municipality under § 1983, a plaintiff must show that the city
“deprived [him] of a constitutional right through an official
policy or custom” adopted and promulgated by municipal
officers.
(1978).

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
Although Plaintiff’s Complaint alleges that the OHR

investigation deprived him of due process and equal protection,
he fails to allege any specific facts to suggest that OHR’s
decision to dismiss his complaint was the result of an official
custom or policy of favoring respondents in actions claiming
racial discrimination.

Rather, Plaintiff merely points to an
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earlier complaint he filed six years ago, which was ultimately
dismissed, as proof that OHR has a pattern and practice of
condoning racial discrimination.

Accordingly, the Court will

grant Defendants’ motion to dismiss Plaintiff’s § 1983 claim.
In addition to Plaintiff’s federal law claims,
Plaintiff’s negligence claim under state law should also be
dismissed.

In Virginia, the doctrine of sovereign immunity

protects municipalities from tort liability arising from the
exercise of governmental functions.
Richmond, 172 Va. 145, 147-48 (1939).

Hoggard v. City of
“A function is considered

governmental if it [involves] the exercise of an entity's
political, discretionary, or legislative authority.”

Carter v.

Chesterfield Cnty. Health Cmm’n, 259 Va. 527, 590-91 (2000).

To

put it differently, a municipality engages in a governmental
function when it exercises its police powers.

See Edwards v.

City of Portsmouth, 237 Va. 167, 171 (1989).
The function at issue here is the city of Alexandria’s
investigation of its own human rights ordinance.

See

Alexandria, Virginia, Municipal Code §§ 12-4-1 to 12-4-30.

The

purpose of this ordinance is to use the city’s “police power and
all other powers it may possess, to protect the safety, health,
peace, good order, comfort, convenience, morals[,] and welfare
of its inhabitants, to assure all persons the opportunity to
obtain housing, public accommodations, employment, health and
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social services, credit, education and city contracts without
[discrimination].”

Id. § 12-4-2.

The ordinance then delegates

the city’s investigative powers to the Humans Rights Director.
Id. § 12-4-14.

Given this delegation of police power, the Court

finds that the challenged activity was a governmental function.
Defendants are, therefore, protected from Plaintiff’s lawsuit by
the doctrine of sovereign immunity.

Accordingly, the Court

grants Defendants’ motion to dismiss Plaintiff’s negligence
claim.
Plaintiff’s final state law claim, involving
allegations of fraud, is equally insufficient to survive a Rule
12(b)(6) motion to dismiss.

To properly plead a fraud claim in

Virginia, a plaintiff must allege the following: (1) a false
representation; (2) of a material fact; (3) made intentionally
and knowingly; (4) with intent to mislead; (5) reliance by the
party misled; and (6) resulting damage to him.

Van Deusen v.

Snead, 247 Va. 324, 327 (1994) (internal citation omitted).
Plaintiff’s Complaint alleges with particularity only a single
potential instance of fraud.

He argues that Defendants

purposely misled him regarding the required elements of a § 1981
violation. 2

Plaintiff’s Complaint fails to include any facts to

2

Plaintiff also refers generally to OHR as a fraud and calls its resolution
of his complaint “bogus” and false. These allegations are nothing more than
Plaintiff’s own conclusions. He fails to include any specific facts to
suggest that OHR’s resolution of his complaint included actual false
misrepresentations.

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show that this alleged misrepresentation was made knowingly or
intentionally with the purpose of misleading him.

His Complaint

likewise fails to allege any reliance upon this representation,
as well as the specific damages he suffered as a result.

For

that reason, the Court will grant Defendants’ motion to dismiss
Plaintiff’s fraud claim.
B.

Request for Pre-Filing Injunction
At the end of Defendants’ motion to dismiss, the

parties include a request that this Court declare Plaintiff a
vexatious litigant and issue an injunction to prevent Plaintiff
from filing any other lawsuit before this Court without first
obtaining prior approval.
[Dkt. 9] at 11-13.

Mem. in Supp. of Mot. to Dismiss

Because Plaintiff has a right to

be heard before any pre-filing injunction is entered,
see Cromer, 390 F.2d at 819-20, the Court will schedule a
hearing on the matter for Thursday, June 22, 2017 at 10 am.
IV.

Conclusion

For the foregoing reasons, the Court will grant
Defendants’ 12(b)(6) motion to dismiss.

Plaintiff’s case will

be dismissed with prejudice in its entirety.

The Court will

also schedule a hearing so that Plaintiff may show cause as to
why the recommended pre-filing injunction should not be entered
against him.

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An appropriate Order will issue.

June 12, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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