Patterson v. McCormick et al

Filing 41

MEMORANDUM OPINION AND FINAL ORDER as to Plaintiff's 19 MOTION to Dismiss for Failure to State a Claim; Plaintiff's 24 MOTION to Quash Entries(#19-22); Plaintiff's 26 MOTION for Extension of Time to Respond to Defendants' Mo tion 19-22; Plaintiff's 30 Motion for Leave to (Re) Amend the Complaint; Plaintiff's 31 Motion to Waive Hearing; Plaintiff's 32 Motion for Electronic Service; Plaintiff's 33 Motion to Correct. Plaintiff's Motion to Quash is DENIED as MOOT, as outlined. The Motion for Extension of Time is DENIED as MOOT, and the Court will consider the Plaintiff's "Objection," filed on January 13, 2014, as outlined. The Court GRANTS the Plaintiff's Motion t o Correct, and will consider the Motion to Re-amend with the requested corrections, as outlined. Allowing the Plaintiff to re-amend the Amended Complaint would be futile. Accordingly, the Plaintiff's Motion to Re-Amend is DENIED. The Plaintif f's Motion for Default Judgment is DENIED; the Plaintiff's Motion to Waive Hearing is GRANTED; the Plaintiff's Motion for Electronic Service is DENIED; the Defendants' Motion to Dismiss is GRANTED, as outlined. Appeal procedures noted. (See Order and Foot Notes for Specifics) Entered and filed 5/15/14. (Signed by Chief District Judge Rebecca Beach Smith on 5/15/14). Copies provided as directed on 5/16/14. Copy mailed to plaintiff at address provided on 5/16/14.(ecav, )

UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ERWIN B.

PATTERSON,

Plaintiff,
v.

ACTION NO.

JOHN MCCORMICK,

2:13cv293

et al.,
Defendants.

MEMORANDUM OPINION AND FINAL ORDER

This
Motion

matter

to

Dismiss

comes

before

for

the

Failure

to

court
State

Dismiss"), ECF No. 19, filed on January 2,

motions filed by the Plaintiff:
22)"

("Motion to

"Motion

for

Motionl9-22

filed

Quash"),

Extension
[sic]"

of

("Motion

January 27, 2014;

a

the

Claim

("Motion

to

"Motion to Quash Entries (#19No.

Time

"Motion
to

Defendants'

2014, and on numerous

24,
to

filed January 13, 2014;
Respond

to

("Motion for Extension of Time"),

January 13, 2014;

Complaint"

ECF

on

for

Leave

Re-amend"),

ECF

"Motion for Entry of

to

Defendants'
ECF No.

(Re)Amend

No.

Default"

30,

26,

the
filed

("Motion

for

Default Judgment"), filed January 31, 2014; "Notice of Error and
Correction on Proposed Amended Complaint"

("Motion to Correct"),

ECF No. 33, filed January 31, 2014; "Motion and Motion for Leave
to

Have

All

Motions

Decided

Without

Hearings/Oral

Arguments

[sic]"

("Motion

to

Waive

February 5, 2014; and

Hearing"),

ECF

No.

31,

filed

"Motion and Motion for Leave Requiring

Electronic Service [sic]" ("Motion for Electronic Service"), ECF
No.

32 filed February 5, 2014.
I. FACTS AND PROCEDURAL HISTORY

On June 4,

2012,

the Plaintiff was evicted from a home

located at 1102 Park Avenue in Chesapeake, Virginia,

Dunlap,

the

Chesapeake

Police

Captain.

James

by James

Dunlap

was

accompanied by the Defendants, John McCormick and Lisa Bridges,
employees of First Family Realty, which served as the property

manager of the property in question. Am. Compl. H 6; Mem. Supp.
Mot. Dismiss at 1. At the time of the eviction, the Plaintiff

was making improvements and redecorating the home because he

"had persons who were interested in renting it from him." Am.
Compl. 1 6. The Plaintiff claimed to own the home and produced a
deed, which was examined by

Ronald Hallman, the Chesapeake City

Attorney.1 Mr. Hallman correctly found that the Plaintiff did

not, in fact, own the home, or have title to the property.2 Mem.
1 Mr.

Hallman

May 31,

retired

as

the

Chesapeake

City

Attorney

on

2013.

2 On March 30, 20 01, the Plaintiff's house located at 1102 Park
Avenue in Chesapeake, Virginia, was foreclosed on. The Plaintiff

previously challenged the foreclosure on the same property in
Patterson v. City of Chesapeake, Va., No. 2:07cv611 (E.D. Va.).
The

Plaintiff

asserted

that

the

foreclosure

should

be

invalidated for a variety of reasons, including alleged fraud.
The court dismissed the Plaintiff's claims as barred by the
statute of limitations. As the Plaintiff acknowledged, the Deed

in

Supp.

of

trespassing.
Mr.

remove

and

from
his

to

Dismiss

6.

Thus,

the

Plaintiff

was

This information was relayed to the Plaintiff by

Dunlap,

evicted

Mot.

the

the

Plaintiff

property.

personal

was

The

then

asked

to

leave,

Plaintiff
from

belongings

was

property,

the

be

time

given

or

to

and

was

subsequently evicted.
On

August 5, 2 013,

proceeding

pro

se,3

the

filed

Plaintiff,

an Amended

Erwin

B.

Complaint

Patterson,

against

the

Defendants alleging "interference/deprivations/violations of

(42

USC 1985, 42 USC 1986)," Am. Compl. \ 6, and "violat[ion] of my
civil rights not limited to [42 U.S.C. §§ 1981,

Protection."

Id.

H 7,

ECF No.

11.

1985 and]

Specifically,

Equal

the Plaintiff

alleges that the Defendants "conspired against the Plaintiff and
his real property,"

from

and/or

and conducted an "illegal/unlawful eviction

seizure

of

the

real

property"

because

of

"hate,

of Foreclosure that the Plaintiff challenged was recorded in
2001. Am. Compl. ! 20,
Exs.
5-7,
Patterson v.
City of
Chesapeake,
Va.,
No.
2:07cv611
(E.D.
Va.
Feb.
7,
2008)
(including the challenged and recorded Deed of Foreclosure) ; see
also Mem. Supp. Mot. Dismiss, ECF No. 20. While the Plaintiff
has asserted in a conclusory fashion in this action that he
"owns" the property, he has offered no documentation or facts
that would contradict the public record documents that establish

he is not the record owner of the property.
3 A

pro

se

complaint

liberally construed.

involving
Gordon v.

civil
Leeke,

rights
574

issues

F.2d

1147,

should be
1151

(4th

Cir. 1978) . However, a court is not required "to accept as true
a legal conclusion couched as a factual allegation," Papasan v.
Allain,
478 U.S.
265,
286
(1986), or a legal conclusion
unsupported by factual allegations.
662,

683

(2009).

Ashcroft v.

Iqbal,

556 U.S.

discrimination and/or negative demeanor toward one or more of my

race/color/gender
alleges

that

the

neglected to 1)
and/or violate

and/or

(protected classes)."
Defendants

Id.

"failed

The

Plaintiff

also

refused

and

and

to,

withdraw from the conspiracy to interfere with
civil rights;

prevent

the

2)

reasonably attempt

continuation

and/or

to prevent,

culmination

of

the

conspiracy of interference & violation of my civil rights; and
3)

notify

a

proper

authority

that

they

were

aware

of

the

Dismiss

on

Response

on

conspiracy." Id.
The

Defendants

January 2, 2014,

filed

and

the

their

Motion

Plaintiff

to

filed

his

January 8, 2014, and an "Objection" to the Motion to Dismiss on
January 13,

2014. The Plaintiff also filed various motions,

see

Infra

III.A-F,

ECF

Nos.

Part
28,

29,

35,

36,

to

which

the

Defendants

replied.

and 37.
II.

LEGAL

STANDARD

Federal Rule of Civil Procedure 8(a) provides,

part,

"[a]

See

in pertinent

pleading that states a claim for relief must contain

. . . a short and plain statement of the claim showing that the

pleader is entitled to relief."
detailed
labels

factual

and

allegations,

conclusions . . . .

but
[A]

The
Rule

complaint need not have
8

formulaic

elements of a cause of action will not do."

v.

Twombly,

550

U.S.

544,

555

"requires

(2007).

"To

more

recitation

of

than
the

Bell Atlantic Corp.

survive a motion to

dismiss,

a complaint must

contain sufficient

factual matter,

accepted as true, to *
state a claim to relief that is plausible
on its face.'"

Ashcroft v.

(quoting Twombly,

Iqbal,

556 U.S.

662,

678

(2009)

550 U.S. at 570) . Facial plausibility means

that a "plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable

for the misconduct alleged."

556) . It is,

facts

therefore,

demonstrating

IcL

(citing Twombly,

not enough for a plaintiff to allege

a

"sheer

possibility"

consist[ency]" with unlawful conduct.
U.S.

550 U.S. at

or

"mere[]

Id^ (citing Twombly,

550

at 557).

The Supreme Court, in Twombly and Iqbal, offered guidance
to courts evaluating a motion to dismiss:

In

keeping

with

these

principles

a

court

considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption
of truth. While legal conclusions can provide the

framework of a complaint, they must be supported by
factual allegations.
When there are well-pleaded

factual allegations, a court should assume their
veracity and then determine whether they plausibly
give rise to an entitlement to relief.

Iqbal, 556 U.S. at 67 9. That is, the court accepts facts alleged
in the complaint as true and views those facts in the light most
favorable to the plaintiff.

Venkatraman v.

418,

Overall,

420

(4th Cir.

2005).

REI Sys.,

417 F.3d

"[d]etermining whether

a

complaint states a plausible claim for relief will ... be a

context-specific task that requires the reviewing court to draw
on its judicial experience and common sense."
at

Iqbal,

556 U.S.

679.

III.

The

Plaintiff

has

PLAINTIFF'S

filed

MOTIONS

numerous

motions

with

the

court.

to

Quash

Each will be considered in turn.
A.

The

Plaintiff

Motion to Quash

filed

the

Motion

on

January 13, 2014. In the Motion to Quash, the Plaintiff seeks to

quash ECF Nos. 19 and 22, which are the Defendants' Motion to
Dismiss, Memorandum in Support, Waiver of Hearing, and "Roseboro
Notice,"

which

dispositive

advised

nature

of

the

the

Plaintiff

Motion

to

of

the

Dismiss,

potentially

and

of

his

opportunity to file a response.
In his

Motion,

the

Plaintiff alleges

that

the Defendants'

filings are "rhetoric,

without merit,

frivolous,

hearsay,

violating FRCP 11(b),"

as well as other allegations.

late

Mot.

to

Quash f 3. The Motion to Quash is identical in substance to his

Response

to

the

Defendant's

Motion

to

Dismiss,

filed

on

January 13, 2014. See Objection to Mot. to Dismiss, ECF No. 25.
The only material difference is a change in the title of the
document.

as

a

As

such,

duplicative

the court will construe his Motion to Quash

filing

of

his

Response

to

the

Motion

to

Dismiss. Accordingly, the Plaintiff's Motion to Quash is DENIED
as MOOT.

B. Motion for Extension of Time

On January 13, 2014,

the Plaintiff filed the Motion for

Extension of Time, asking for an extension of time to file a

response to the Motion to Dismiss. On that same day, however,
the Plaintiff filed his "Objection" Response to the Motion to
Dismiss.

ECF No.

25.

Federal Rule of Civil Procedure 6(b)

extend time for good cause.

allows the court to

Because the Response was filed

within the twenty-one days required by Local Rule 7(K),
extension of time was needed in this case.

Accordingly,

no
the

Motion for Extension of Time is DENIED as MOOT, and the court
will

consider

January 13,

the

Plaintiff's

"Objection,"

filed

on

2014.

C. Motion to Re-amend and Motion to Correct

On January 27, 2014, the Plaintiff filed the Motion to Re-

amend,

and

included

February 10, 2014,

the

a

proposed

Defendants

Re-amended

filed

their

Complaint.

On

Response.

On

January 31, 2014, the Plaintiff filed the Motion to Correct, in
which he seeks to correct his proposed Re-amended Complaint.

Specifically, he seeks to remove the incorrect Defendant names
and to correct his address as listed in the proposed Re-amended

Complaint. Mot. to Correct 1 1. Because the corrections are

merely

clerical,

and

the

Defendants

have

not

opposed

the

correction, the court GRANTS the Plaintiff's Motion to Correct,
and will

consider the Motion to Re-amend with the requested

corrections.

In his Motion to Re-amend, the Plaintiff alleges that his

"[r]eamended complaint will attempt to surpass the requirements

of; Rule 8(a)(2)

and threshold as in Phillips v.

County of

Allegheny, 515 F.3d 224,2e4 [sic] (3d Cir. 2008)." Mot. to Reamend U 2.

The Plaintiff had already amended his original

Complaint and filed his Amended Complaint on August 5, 2013. See
ECF No.

11.

Rule

15(a)(2)

of

the Federal

Rules

of

Civil

Procedure

provides that "[t]he court should freely give leave [to amend a
pleading] when justice so requires." A motion to amend "'should
be denied only when the amendment would be prejudicial to the

opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.'" Edwards v.
City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (quoting
Johnson v.

Oroweat

Foods

Co.,

785

F.2d 503,

509

(4th Cir.

1989)). Futility means that "the proposed amendment is clearly
insufficient or frivolous on its face," Johnson,

785 F.2d 509

(citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th
Cir. 1980)), and "[c]ould not survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6)." Macon v. DuPont, No.

8

3:10cv260,

2011 WL 1838785,

at *2

(E.D. Va.

May 13,

2011)

(citing Perkins v. United States, 55 F.3d 910, 917 (4th Cir.
1995)) .

In the proposed Re-amended Complaint, the Plaintiff seeks

to allege his claims specifically under 42 U.S.C. § 1985(2) and
(3),

in addition to maintaining his claims under 42 U.S.C.

§§ 1981 and 1986 as originally pled in his Amended Complaint.
See ECF Nos. 4 and 11. The Defendants argue that "it would be
futile for Plaintiff to amend his Amended Complaint as better

pleading will not alleviate its deficiencies." See Resp. to Mot.
to Re-amend at 3.

The court has considered the substance of the proposed Re-

amended Complaint.

In the proposed Re-amended Complaint,

the

4 The Amended Complaint does not specifically identify which
subsection of 42 U.S.C. § 1985 that the Defendants allegedly
violated. See generally Am. Compl. Based on the facts presented
in the Amended Complaint as it relates to his claims under 42
U.S.C. § 1985, the court will construe the claims as arising
under 42 U.S.C. § 1985 (3). Although the Plaintiff references 42
U.S.C. § 1981 and the Equal Protection Clause in his Amended

Complaint,

the

Plaintiff

does

elements of a claim under
Protection Clause; rather,

42
he

not

specifically

plead

the

U.S.C. § 1981 or the Equal
generally alleges that the

"[d]efendants and conspirators participated in, knew or should
have known that an illegal/unlawful conspiracy and activity to

violate my civil rights not limited to 42USC1981/Equal
protection etc. was about to and/or in process of taking place.
." Am. Compl. H 7. Moreover, this is the only instance in
the Amended Complaint where the Plaintiff references 42 U.S.C.
§ 1981 and the Equal Protection Clause. Thus, without including

any facts to support such a claim, the Plaintiff's allegations
are conclusory,

and as such fail to state a claim under 42

U.S.C. § 1981 or the Equal Protection Clause.

Plaintiff references 42 U.S.C.

Clause

by

stating

civil/constitutional
interferred
relief

[sic]

herein

rights

[under]:

Plaintiff

generally
and

with/violated

enforce contracts."
the

§ 1981

42

USC

and the

that
other

.
1981

.

Equal Protection

"the
rights

.

. and

Equal

is

rights

Proposed Re-amended Compl.

fails

to

provide

Plaintiff's

specific

.

.

were

entitled
to

to

enter and

H 17.
conduct

However,
by

the

Defendants showing an interference in his rights to enter and
enforce contracts in violation of 42 U.S.C.

§ 1981,

or specific

conduct by the Defendants in violation of the Equal Protection
Clause. The Re-amended Complaint also identifies subsections (2)
and (3) of 42 U.S.C. § 1985, but fails to prove the elements of
a claim under these subsections, or identify specific incidences

or conduct by the Defendants that would give rise to a viable
claim

under

42

U.S.C.

§

1985

(2)

and

(3).

Further,

the

Re-

amended Complaint references other statutes such as 42 U.S.C.
§§ 1982,

acts,

1983,

and "the U.S. Codes, constitution,

fair housing act,

Va code etc,"

civil rights

but fails to plead any

facts supporting a claim under those statutes.

See id.

fl 19.

Instead,

the Plaintiff references some photographs5 which are

attached

to

the

Re-amended

Complaint,

which

he

describes

as

evidence of attempts by the Defendants to "harass and intimidate

5 The photographs are of boarded-up windows and "no trespassing"
signs. See Re-amended Compl. Exs. 3, 4. The court has reviewed
the photographs and finds nothing nefarious.
10

him."

See id^ H 14.

Coconspirators

He also alleges that the "Defendants &

motives/motivation/tactics

similar/identical

to/derived from ...

supremacist and hate clans." Id^ H 16.
amended

Complaint,

the

Plaintiff

.

.

.

are

& shared with white

Moreover,

attempts

to

in the Re-

make

disparate

treatment arguments by espousing what he believes is the racial

makeup

of

homeowners

in

Chesapeake,

Virginia,

and

how

the

Defendants allegedly utilized this racial makeup in deciding
whether to evict the Plaintiff.

See id^ 1 13. The Plaintiffs

allegations are merely conclusory, and allege "mere consistency
with unlawful conduct." Iqbal, 556 U.S.

Having

proposed

fully

considered

Re-amended

the

Complaint,

at 678.

Amended

the

Complaint

court

finds

and

the

that

the

Plaintiff has failed to plead new or sufficient facts to support
or save his claims. Thus, allowing the Plaintiff to re-amend the

Amended Complaint would be futile. Accordingly, the Plaintiff's
Motion to Re-amend is DENIED.

D. Motion for Default Judgment

On January 31,

Default

Judgment.

Defendants

did

not

2014,

the Plaintiff filed the Motion for

The

Plaintiff

file

a response

alleges
within

that

because

twenty-one

days

the
of

being served the Amended Complaint, a default judgment should be
entered in his favor. See Mot.

for Default 1 2. In his Motion,

the

he

Plaintiff

alleges

that

11

served

the

Defendants

on

September 18, 2013,

by mailing

the Summons

and a copy of the

Amended Complaint.6 See id. H 2, and Ex. 1.
Federal Rule of Civil Procedure 55(a) provides that "when a

party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend,

shown

by

affidavit

or

otherwise,

the

and that failure is

clerk

must

enter

the

party's default." Once the default is entered, the next step is
entry of default judgment. See Rule 55(b).
The
merit.

that

In

the

the

Dismiss

and

Plaintiff's

Motion

instant

Defendants

action,

were

of

default

Default

nothing

untimely

and Memorandum in

entry

for

in

in

Judgment
the

filing

Support to warrant

judgment

pursuant

is

record

their

without
suggests

Motion

entry of

to

Rule

to

default

55(a).

On

May 30, 2013, the court granted the Plaintiff's Motion for leave
to proceed in forma pauperis pursuant to 28 U.S.C.
such,

the

service.

2010)

court
See

directed

Robinson

Clipse,

States

602

F.3d

Marshal
605,

607

to

effect

(4th

Cir.

Marshals Service to effect service of process

according to 28 U.S.C.

6

United

As

("In forma pauperis Plaintiffs must rely on the district

court and the U.S.

Thus,

v.

the

§ 1915.

"by granting

Pursuant

§ 8.01-296,

Complaint

to

to

[a plaintiff]

Federal

the

§ 1915."); see also Fed. R. Civ. P. 4(c).

Rule

of

leave to pursue his claim in

Civil

Procedure

Plaintiff's mailing of

the Defendants

was not

proper service of process.

12

4

and

Va.

Code

summons and the Amended

sufficient

to effectuate

forma pauperis,

[a district court]

for serving the complaint from
Reinhold v.

Tisdale,

No.

n.3 (D.S.C. April 30,

shift[s]

[the plaintiff]

8:06-3311-MBS-BHH,

2007)

the responsibility
to the court."

2007 WL 2156661,

(quoting Wright v.

Lewis,

at

76 F.3d

57, 59 (2d Cir. 1996)). Therefore, the plaintiff "relinquishe[s]
control over service."

The Plaintiff's

Id.

service of process on the Defendants via

First Class Mail on

September 18,

2013,

was

ineffective.

By

proceeding in forma pauperis, the Plaintiff relinquished control
over

the

service

of

process.

On

December 11, 2013,

Defendants were served by the United States Marshal.

Mot.

for Default

Judgment

Ex.

1.

The Defendants

the

Resp.

to

filed their

Motion to Dismiss on January 2, 2014, the last day they could do
so.

Thus,

the

Accordingly,

Defendants

the

were

Plaintiff's

timely

Motion

in

for

their

Default

filing.

Judgment

is

Hearing"

on

DENIED.

E. Motion to Waive Hearing
The

February

Plaintiff

filed

5,

subject

2014,

the

"Motion

to

to

defect.

In

Waive

that

motion,

the

Plaintiff asks that "his motions be decided without hearing/oral

arguments." Mot.

to Waive Hearing at 1.

the Defendants responded,

to

request

outstanding

an

oral

Motions."

On February 10,

2014,

stating that "they have no intention

argument
Resp.

on

to

13

any

Mot.

to

of

Plaintiffs'

Waive

Hearing

[sic]
at

2.

"Defendants,

however,

reserve

the

right

to

request

an

oral

argument on any motion that they or Plaintiff may file in the
future."

Id.

After

full

examination

of

the

briefs

and

the

court determines that a hearing is unnecessary,

legal arguments are

adequately presented,

record,

the

as the facts and

and

the decisional

process would not be aided significantly by oral argument. See
Fed.

R. Civ.

P. 78(b); E.D.

Va.

Loc.

Civ.

R.

7(J). As such,

the

Plaintiff's Motion to Waive Hearing is GRANTED.
F.

On

Motion for Electronic Service

February 5, 2014,

Electronic

Service,"

the Plaintiff

requesting

that

filed
the

the

court

"Motion
require

for
the

Defendants to serve him with any filings by "electronic means,

by fax and email." Mot. for Electronic Service at 1.
Federal

Rule

of

Civil

alternative methods of

Procedure

5 (b)

serving a paper.

allows

for

several

Among these methods

is

"mailing it to the person's last known address." Fed. R. Civ. P.
5(b)(2)(C).
which

can

writing.
not

be

used

Fed. R.

require

served

Another

serving party

if

the

Civ. P.

service

consents,

permitted

by

and

learns

method

person

is

being

5(b)(2)(E).

that

service

it

did

14

served

Importantly,

electronic means
such

"electronic

is

not

means,"

consented

in

the Rule does

when the person being
not

reach

effective

"if

the person

the

to be

served." Id.;
F.3d 403,

see also Robinson v. Wix Filtration Corp.

422-23

(4th Cir.

LLC,

599

2010).

The Defendants have made clear that they have mailed their
documents

to

the

Plaintiff's

address

of

record,

another address he used in some of his filings.

Quash at
other

3. They also

documents

record

is

to

attempted to

the

"seemingly

Plaintiff,

invalid,"

email
but

as

Resp.

well

to Mot.

their responses

his

suggesting

email

that

emailed to the Plaintiff would not reach him.

address

any

as

to

and
of

documents

Id.

Thus, not only did the Defendants use an appropriate method
of service,

but

have

contrary

been

Accordingly,

they also declined to use a method that would
to

Rule

5

under

the

circumstances.

the Plaintiff's Motion for Electronic Service is

DENIED.

IV.

The

DEFENDANTS'

Defendants

advance

MOTION TO DISMISS

two

arguments

in

support

Motion to Dismiss.7 The Defendants allege that 1)
fails

to

Plaintiff

state
also

a

claim

fails

to

under
state

42
a

U.S.C.
claim

§

42

their

the Plaintiff

1985(3),

under

of

and

U.S.C.

2)
§

the

1986.

7 Although the Plaintiff references 42 U.S.C. § 1981 and the
Equal Protection Clause in his Amended Complaint, he does not
establish the elements or plead facts for such claims. In their
Motion to Dismiss, the Defendants do not address his reference
to 42 U.S.C. § 1981 or the Equal Protection Clause.

15

See Mem. in Support of Mot. to Dismiss 6-8. The court considers
each argument in turn.

The Plaintiff alleges that the Defendants conspired to deny

him equal protection of the laws when they evicted him from a

home,

in violation of 42 U.S.C.

§ 1985.8 The Plaintiff also

alleges that the Defendants neglected to prevent the conspiracy,
in violation of 42 U.S.C.

§ 1986. Further,

the Plaintiff alleges

generally that the Defendants interfered with his right to make
and

enforce

contracts,

in

violation

of

42

U.S.C.

§

1981.

Construing the alleged facts in the light most favorable to the
Plaintiff,

the court finds that the Plaintiff has

failed to

state plausible claims under 42 U.S.C. §§ 1981, 1985(3), 1986,
and the Equal Protection Clause. As such, the Defendants' Motion
to Dismiss is GRANTED.

A. Conspiracy to Interfere with Civil Rights under 42 U.S.C.
§ 1985(3)

The Plaintiff alleges that the Defendants conspired to deny

him equal protection of the laws when they evicted him from a
home,
claims,

in violation of

42 U.S.C.

§ 1985.

In support of

his

he alleges that the Defendants "verbally and in print

conspired against,

the Plaintiff and his real property .

conspicuously posted

to

be

the

8 See supra note 4.
9 See supra note 4

16

owner,

occupant,

and

property

manager . . . during an illegal/unlawful eviction from and/or
seizure of the real property." Am. Compl. H 7. Specifically, he

alleges that the conspiracy to "obtain control and physical
possession

of

his

real

property

[was]

due

to

hate,

discrimination and/or negative demeanor toward one or more of
[his] race/color/gender (protected classes)." Id^ The Defendants

allege that they did not conspire and were not motivated by a
"specific class-based,

invidiously discriminatory animus" when

they evicted the Plaintiff from a home that he no longer owned.
See supra note 2; Mem. in Supp. of Mot. to Dismiss at 8.
To state a claim for conspiracy to interfere with civil
rights, a plaintiff must prove:

1) a conspiracy of two or more persons, 2) who are
motivated by a specific class-based,
invidiously
discriminatory animus to 3) deprive the plaintiff of
equal enjoyment of rights secured by the law to all,
4) and which results in injury to the plaintiff as 5)
a consequence of an overt act committed by the
defendants in connection with the conspiracy.

A Society Without a Name v.

Virginia,

655 F.3d 342,

346

(4th

Cir. 2011) (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir.
1995)).

The Fourth Circuit has

"specifically rejected section

1985 claims whenever the purported conspiracy is alleged in a

merely conclusory manner, in the absence of concrete supporting
facts." Simmons, 47 F.3d at 1376-77. Thus,

"the [Plaintiff has]

a weighty burden to establish a civil rights conspiracy." Hinkle
v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996).

17

Moreover,

"because of the high threshold that a Plaintiff must

meet to establish a prima facie case under section 1985, courts

often

grant

Supp.

561,

motions
571

of

(E.D.

dismissal."

Va.

1995)

Davis

(citing

v.

Hudgins,

Simmons,

47

896

F.

F.3d

at

1377)) .

To prove the conspiracy element of 42 U.S.C.

§ 1985

(3),

the Plaintiff must plead sufficient facts that would "reasonably
lead

to

tacitly
common

121,

the

came

inference

to a mutual

and unlawful

132

that

(4th Cir.

Defendants]

understanding

plan."

2008)

[the

Ruttenberg

positively

or

to try accomplish

v.

Jones,

(quoting Hinkle,

283

F.

a

App'x

81 F.3d at 421) . In

other words, the Plaintiff must prove that there was a "meeting

of the minds by
constitutional

[the

rights."

Defendants]
Simmons,

to violate
47

F.3d

the Plaintiff's

at

1377.

Direct

evidence of the meeting of the minds is not required; however,
the circumstantial evidence proffered by the Plaintiff must be

specific enough to demonstrate that each member of the alleged
conspiracy "shared the same conspiratorial objective."
81 F.3d at

421

(4th

1992)).

Cir.

(citing Hafner v.
Additionally,

Brown,
the

983
racial

F.2d 570,
or

Hinkle,
576-77

class-based

invidiously discriminatory animus requires concrete supporting
facts and cannot be inferred.

954 F.2d 960,

970

(4th Cir.

See Gooden v.

1992).

18

Howard County,

Md. ,

In this case,

a

conspiracy

U.S.C.

§

to

1985

conspiracy

by

the Plaintiff fails to prove the elements of

interfere
(3).

the

with

First,

civil

the

Defendants

rights

Plaintiff

to

claim

fails

accomplish

a

under

to

prove

"common

42
a

and

unlawful plan." The Plaintiff's allegations that the Defendants'
eviction was "unlawful and motivated by hate, discrimination and

or negative demeanor" are unfounded.
the elements of a cause of action,
statements'

.

"l[T]hreadbare recitals of

supported by mere conclusory

. . are . . . not sufficient to state a claim." A

Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir.
2011)

(quoting Iqbal, 556 U.S. at 678)). The Defendants lawfully

evicted the Plaintiff from a home that he no longer owned.

See

supra note 2; Mem. Supp. Mot. to Dismiss 2. By the Plaintiff's
own account, the deed was given to the Defendant Mr. Hallman who

checked its validity and correctly determined that the Plaintiff

no longer had title to the property. See Am. Compl. H 7. Thus,
the Plaintiff fails

to show any "meeting of the minds"

by the

Defendants to deprive him of any civil rights.
Second,

were

the

motivated

Plaintiff

by

fails

racial

to

or

prove

that

the

class-based

Defendants

invidiously

discriminatory animus when they lawfully evicted the Plaintiff.
In

the

Amended

Defendants

Complaint,

"subjected

[him]

the

to

Plaintiff

this

alleges

type

of

that

the

conspiracy,

deprivation of civil rights . . . [because] of [his] race and/or

19

color and/or gender,

K

8.

He

either alone or in combination . . . ."Id.

references

that

he

is

an

"African American Male";

however, he makes no mention of specific instances of conduct by
the

Defendants

that

could

be

perceived

as

racially

discriminating. As such, he fails to offer more than conclusory
allegations that he was evicted because of his race.
references

Defendants.

to

race

See

are

id.

H

7.

statements

The

about

Plaintiff's

the

race

recitation

The only
of

the

of

his

particular race and the race of some of the persons involved in

his eviction is insufficient to prove invidiously discriminatory
animus, or to overcome the fact that he was
See

Gooden,

954

F.2d

at

970

(stating

lawfully evicted.

that

the

Plaintiff's

§ 1985(3) claim that was supported only by the respective racial

identities of the Defendants failed to satisfy the requirement
of unlawful intent in a conspiracy under § 1983(a)).

The Plaintiff has only put forth broad allegations that do

not indicate any violation of his civil rights, or the existence
of a conspiracy to engage in that type of violation.

As such,

the Plaintiff fails to show at a threshold level a conspiracy to
interfere with civil rights under 42 U.S.C.

§ 1985(3).

B. Neglect to Prevent Conspiracy under 42 U.S.C.

The Plaintiff

reasonably prevent"

alleges

that

the Defendants

§ 1986

"neglect[ed]

to

the conspiracy to evict him, pursuant to 42

U.S.C. § 1986. Am. Compl. ^% 6, 7. Specifically, he alleges that

20

"the

Defendants

chose

neglected to 1)

not

to,

and

failed

to,

and

refused

and

withdraw from the conspiracy to interfere with

and/or violate civil

rights;

and/or

continuation

prevent

the

2)

reasonably attempt

and/or

to prevent,

culmination

of

the

conspiracy of interference & violation of my civil rights; and
3)

notify

a

proper

authority

that

they

were

aware

of

the

action against

any

conspiracy." Id. U 7.
42

U.S.C.

§

198 6 provides

a

cause

of

party with knowledge of a conspiracy in violation of § 1985 who

fails

to

take

action

to

prevent

the

violation.

"A

cause

of

action under § 1986 is dependent upon the existence of a claim
under § 1985."
Summons,

755

failure

of

claim."

Id.

869 n.4

(E.D.

the

a

instant

Davis,
F.2d

896

F.

1081,

Section

Supp.

1085

1985

(4th

claim

(quoting Burcher v.
Va.

1994));

case,

at

also

571.

(quoting Trerice v.

Cir.

1985)).

defeats

McCauley,

871

see also Trerice,

because

conspiracy under 42 U.S.C.

the

Plaintiff

§ 1985(3),

F.

"the

Section

the

Thus,

1986

Supp.

864,

at

755 F.2d at 1085.

In

fails

to

show

a

he also fails to prove an

action to prevent a conspiracy claim under 42 U.S.C. § 1986.10
V.

Conclusion

For the reasons set forth above,
Dismiss

is GRANTED.

The Plaintiff

the Defendants'

Motion to

is ADVISED that he may appeal

10 Furthermore, the Plaintiff also fails to prove a claim under 42
U.S.C. § 1981 or the Equal Protection Clause. See supra note 4
and accompanying text.

21

from this Memorandum Opinion and Final Order by forwarding a
written notice of appeal to the Clerk of the United States

District Court, United States Courthouse, 600 Granby Street,
Norfolk, Virginia 23510. The written notice must be received by
the Clerk within thirty (3 0) days from the entry date of this
Memorandum Opinion and Final Order.

The Clerk is DIRECTED to send a copy of this Memorandum

Opinion and Final Order to the Plaintiff and to counsel for the
Defendants.

IT IS SO ORDERED.

United States District

Judee--ffi&-

REBECCA BEACH SMITH

CHIEF UNITED STATES DISTRICT JUDGE

May

|5 , 2014

22