Smith v. Ray et al

Filing 101

MEMORANDUM OPINION and FINAL ORDER Adopting 79 Report and Recommendation; Granting Consolidated City Defendants' 27 Motion to Dismiss or for Summary Judgment; Dismissing without prejudice the state law claims; finding as moot 51 Motion Any and All relief; denying 68 Motion for Any and All Relief; denying 69 Motion to Amend/Correct; finding as moot 80 Motion for Medical Examination; finding as moot Bullard's 91 Motion for Summary Judgment; finding as moot 96 Motion to Dismiss Assault claim ; finding as moot 97 Motion to cause Bullard to file certified copy of CD. Signed by District Judge Rebecca Beach Smith and filed on 4/7/09. Copy ECF to all parties and to Magistrate Judge 4/7/09. (lwoo)

FILED
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

APR -7 2009
CLERK. U.S. DISTRICT COUHT
NORFOLK. VA

Norfolk Division

AMANDA

DEANNE

SMITH,

Plaintiff,
v. ACTION NO. 2:08cv281

OFFICER R.

R.

RAY,

et

al.,

Defendants.
MEMORANDUM OPINION AND FINAL ORDER

This
motions,

matter
as set

comes

before

the

court

on

a

variety

of

pending

forth below.

I.

Consolidated City Defendants' Motion to Dismiss or for Summary
Judgment (Docket #27)

On November 18,

2008,

the Consolidated City Defendants1

filed a

Motion

to Dismiss

or

for

Summary Judgment,

in Case No.

2:08cv449.2

1
F.

This phrase refers to all defendants except defendant Tony Case No. 2:08cv449 was consolidated with Case No. 2:08cv281

Bullard.

2

by Order of October 28, 2008, after which Case No. 2:08cv449 was dismissed, with all operative pleadings being merged into Case No. 2:08cv281. Plaintiff argues that the court improperly dismissed Case No. 2:08cv449 in its Order of December 12, 2008. The fact of

the matter is that the court acted as it did in an attempt to clarify the multiple pleadings that had been filed, and to sort through plaintiff's duplicative submissions. In short, the Order sought to bring the parties, and this court, onto the same page.
Any procedural wrinkles that developed as a result of the December 12, 2 008, Order, were brought about by the befuddling way in which plaintiff's counsel has chosen to proceed with this action. Importantly, all of plaintiff's claims in Case No. 2:08cv449 survived the December 12, 2008, dismissal, and are being addressed herein with respect to the Consolidated City Defendants' Motion for
Summary Judgment.

The matter was referred to a United States Magistrate Judge, pursuant
to the provisions Procedure of 28 U.S.C. to § 636(b)(l)(B) hearings, and Federal Rule of

Civil

72(b),

conduct

including

evidentiary
if

hearings,

if necessary,

and to submit proposed findings of fact,

applicable,

and recommendations for the disposition of the motion.
2009. Magistrate Judge

A hearing was conducted on January 23,

James E. Bradberry issued a Report and Recommendation on February 13, 2009 (the "Report"), and recommended that summary judgment be granted

as to plaintiff's claims brought pursuant to 42 U.S.C.

§ 1983.

After

concluding that plaintiff "has failed to demonstrate a constitutional
violation," the Report further recommended that this court decline to exercise supplemental jurisdiction over plaintiff's state law claims.
(Report
Tony F.

24.)

Both

the

Consolidated

City

Defendants

and

defendant
2009.

Bullard filed objections

to the Report on February 20,

Plaintiff

submitted objections the objections

to

the

Report

on

February 27,

2009,

and responded to

raised by defendants

on March 4 and

5,
has

2009.3

No other filings have been received and the time for filing
As such,
having

expired.
The

the matter is now ripe for review.
examined the objections and made de novo

court,

findings with respect thereto, the findings and

does hereby adopt and approve in full set forth in the Report and

recommendations

Recommendation of Magistrate Judge Bradberry filed February 13, 2009.

objections on March 4,
on March 5, 2009.

3

Plaintiff responded to
2009,

and to defendant Bullard's objections

the Consolidated City Defendants'

Accordingly,

the Consolidated City Defendants' Motion to Dismiss or

for Summary Judgment is GRANTED with respect to plaintiff's claims arising under 42 U.S.C. § 1983. Further, this court declines to

exercise supplemental jurisdiction over plaintiff's state law claims.
See 28 U.S.C. § 1367(c)(3) (permitting a district court to decline to

exercise supplemental jurisdiction when it has dismissed the claims
over which it has original jurisdiction); United Mine Workers of Am.

v.

Gibbs.

383 U.S.

715,

726

(1966)

("[Supplemental]

jurisdiction is
These state

a doctrine of discretion,

not of plaintiff's right.").

law claims are hereby DISMISSED without prejudice.4

II.

Plaintiff's Motion for Relief Pursuant to Fed. R. Civ. P. 60(b) and Motion to Amend and/or to Consolidate Pleadings (Docket #68
and 69)

Also pending before the court are plaintiff's "Motion for Relief
Pursuant to Fed. R. Civ. P. 60(b)" and "Motion to Amend, and/or in

the

Alternative

to

Consolidate

Pleadings,"

both

filed

January

23,

2009. relief.

Although styled differently, As such,

the two motions ask for identical

they will be discussed together.

Plaintiff
both Case No. amend the

seeks

to

(1)

reinstate Case No.

2:08cv449

and allow
and (2)

2:08cv281

and 2:08cv449 in Case
Officer

to proceed No.

together; and the

Original

Complaint
to name

2:08cv281
Keatley.

Second

Amended

Complaint

Jay

Alternatively,

plaintiff

seeks

to consolidate these two pleadings,

and then amend

4

Plaintiff's Motion for Additional Discovery in this federal
to Fed. R. Civ. P. 56(f) (Docket #51) is now MOOT.

court pursuant

them

both

to

name

Officer

Keatley.

Because

the

court

finds

that

neither proposed course of action is appropriate,
that allowing plaintiff
is DENIED.

and further finds
each of

leave

to

amend

is

not

warranted,

these motions

This case comes before the court with a complex and protracted procedural history that, in the interest of brevity, need not be

repeated herein.5
party to amend a

Federal
pleading

Rule of Civil
once as a

Procedure 15(a)
of course

permits a
before a

matter

responsive pleading
the party may

is

served.
only by

After
leave

that
of v.

opportunity has passed,
Fed. R. Civ. P. 327

amend

court. Pearson.

15(a)(2); (4th rests leave Cir.

see also Nat'l Bank of Wash, 1988) the (noting sound amend that the

863 F.2d 322, to grant

decision of the

whether district given,"

leave While

within to

discretion should be

court). reasons

further

"freely

such

as

"undue delay,

bad faith or dilatory motive on the part of the movant,

repeated
allowed, of the

failure

to

cure

deficiencies

bv

amendments

previously

undue prejudice to the opposing party by virtue of allowance amendment, futility of amendment," and others justify a

district court's denial of amendment.
182 (1962) As (emphasis added). orders

Foman v,

Davis.

371 U.S.

178,

documented

in numerous

of

this

court,

plaintiff

has

had several opportunities to present her case through a properly pled

5

Magistrate

Judge

Bradberry's

Report,

as

well

as

this
2009,

court's orders of thoroughly describe

December 12, 2008, and the procedural history of

January 15, this matter.

complaint.

Plaintiff's

counsel

is

clearly unfamiliar with

federal

court practice, the rules of

as well as this

the rules of In

federal civil procedure and plaintiff continues,

court.

fact,

inappropriately,

to plead new theories of recovery.6

Plaintiff has See, e.g..
(no

repeatedly failed to cure deficiencies
Glaser v. Enzo Biochem. Inc.. 464

in her pleading.
480 (4th Cir.

F.3d 474,

2006)

abuse of discretion in denying motion to amend because plaintiffs had

"many

opportunities
months of

to

present

their

claim,"

where
had

plaintiffs
set forth

had
four

several

pre-complaint

discovery

and

iterations of their complaint);
F.2d 1180 to (4th Cir. 1986) proper

Ahmed v.

Chesapeake Hosp. Auth..
table se decision) plaintiff's (denial

803
of

(unpublished given pro

motion

amend

numerous

opportunities

to

state

his

claim

in

a

coherent

fashion,

and

his

"continuing inability to do so[.]").
cure deficiencies in her pleading,

Plaintiff's repeated failure to
after being given numerous

opportunities to do so, weighs against this court affording her leave
to amend yet again.

Further,
would only

the court notes that allowing plaintiff to amend again
further confuse and complicate matters. Plaintiff

submitted three different proposed amended complaints with her Motion

6

For

instance,

in

her

response

to

the

Consolidated

City

Defendants' Motion to Dismiss or for Summary Judgment, plaintiff contends that the search of the residence where she was a guest

when this incident occurred violated the Fourth Amendment. The Second Amended Complaint contained no such allegation. See Report
at 10 n.4.

to Amend and/or and 69-4.

to

Consolidate

Pleadings.

See Docket

#69-2,

69-3, of

These

amended

complaints

contain parties

and

causes

action that were dismissed,

on plaintiff's motion,

weeks before her

motion to amend was
to amend,

filed.7
may

Should the court afford plaintiff leave
again submit an inaccurate complaint.

plaintiff

Additionally,
counsel's several

leave to amend is not warranted because of plaintiff's
of this court's to process. Plaintiff cogent, has been given complete

abuse

opportunities

present

coherent,

and

pleadings.
September,

This
2006.

case
Two

concerns

an

incident
actions

that

occurred
filed,

in
and

separate

federal

have been

this

court

has

spent

countless

hours

attempting

to

wade

through

plaintiff's submissions.

In short, plaintiff's apparent inability to against amendment. has any meritorious

straighten out her case weighs Finally, it

is not clear whether plaintiff

federal

claims.

Based on

the submissions

to

this

court,

plaintiff
42
no

likely does not have a cognizable claim of
U.S.C. § 1983. See, e.g. . Report at 14,

a direct violation of
18 (concluding that

reasonable requisite

juror

could

find

that

Officer an

Ray

did

not

possess detention

the of

articulable

suspicion

for

investigative

7

For

instance,

plaintiff's

"Proposed

Consolidated

Cases

Complaint" (Docket #69-3) names the City of Virginia Beach Police Department, Officer Kevin Murphy, and Officer Donald Austin as
defendants. On January 14, 2009, well before plaintiff filed her motion to amend, the court granted plaintiff's motion to dismiss
these defendants. See January 14, 2009, Order at 2. It is beyond

the court's comprehension why plaintiff defendants she has already dismissed.

would

continue

to

name

plaintiff, nor that he used excessive force in arresting plaintiff).a
At most, one of plaintiff could perhaps have a state law tort claim against the City of Virginia Beach Police Officers is or defendant

Bullard.

To the extent she does,

plaintiff

free to proceed with

her

such

claims

in

state

court.

This

court,

however,

refuses

to

further tolerate plaintiff's

"sloppy" pleading or to expend further

resources untangling the procedural Gordian knot into which this case

has

devolved,

and

will

obviously

continue

to

evolve

through

the

filing of yet another amended complaint.9

III. Motions Concerning Defendant Bullard
Lastly,
Tony F.

(Docket #91,

96,

and 97)

currently pending are three motions concerning defendant
(1) defendant Bullard's Motion for Summary Judgment,

Bullard:

filed March Claim for

6,

2009;

(2)

plaintiff's Bullard,

Motion

to Voluntarily Dismiss to Fed. R. Civ. P.

Assault

Against

pursuant

8

Additional

evidence

that

plaintiff's

§

1983

claims

are

likely meritless is found in the transcript from the summary judgment motion hearing held before Magistrate Judge Bradberry. See, e.g. , Tr. at 6-7. For example, after hearing plaintiff's argument that excessive force was used during the arrest, Judge Bradberry remarked: "If you think that's excessive force, then

there is no question this case is not going to survive. This case is not going to survive." Further, with respect to plaintiff's allegation that Officer Ray and defendant Bullard were unlawfully
present on the Bradberry noted property where this that this argument incident occurred, Judge is "going to lose," and

plaintiff does not "even get off the ground on that [argument]." Id. While Judge Bradberry's comments are not dispositive to the issues they addressed, they provide persuasive insight into whether plaintiff has any meritorious federal claims, and whether further
amendment would be to any avail.

9

See supra notes 6,

7,

and 8,

and accompanying text.

41(a)(2),

filed March 17,

2009;

and

(3)

plaintiff's

"Motion to Cause

Tony

Bullard

to

File

Sworn

&/or

Certified

Copies

of

Documents

Referred to in Affidavits

in Support of Motion for Summary Judgment

or in the Alternative to Strike from the Record Said Affidavit," also filed March
against

17,

2009.

Because

the

only

claims

plaintiff
and

asserted
court

defendant

Bullard were

assault

and battery,

this

has declined to exercise supplemental
state law claims, see supra Part I,

jurisdiction over plaintiff's
each of these three pending

motions The Opinion

is now MOOT.10 Clerk and is DIRECTED Order to to all forward a copy for of this Memorandum and to

Final

counsel

both

parties

Magistrate Judge Bradberry.
IT IS SO ORDERED.

United States District Judge
REBECCA BEACH SMITH

Rebecca Beach Smith

United States

District Judge

Norfolk,

Virginia

April

r|

,

2009

10

The Consolidated City Defendants'
pursuant

Motion for Physical and
to Fed. R. Civ. P. 35

Mental Examination of Plaintiff (Docket #80) is likewise MOOT.