David W. Boyce v. Thomas E. Bennett, et. al

Filing 263

OPINION AND ORDER granting in part and denying in part 165 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 167 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 169 Motion to Dismiss for Failure to State a Claim. As set forth above, the Court GRANTS in part, and DENIES in part, Defendants' Fox, Perkinson, and Gaddis' motions to dismiss Counts Two, Three, and Seven of the second amended comp laint. ECF No. 165, 167, and 169. Such motions are GRANTED with respect to Count Three (§ 1983 access to courts) and Count Seven (state-law gross negligence) and DENIED as to Count Two (§ 1983 conspiracy). The Court will revisit Defendants& #039; arguments as to the viability of the conspiracy claim set forth in Count Two based on the developed factual record after a hearing is conducted as part of the summary judgment process. As indicated above, such hearing will be conducted after Boyce has completed the supplemental discovery recently authorized by the Court. Signed by District Judge Mark S. Davis and filed on 11/9/15. Copies distributed to all counsel of record 11/9/15. (ldab, )

UNITED

STATES DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

DAVID W.

BOYCE,

Plaintiff,
Civil No.

v.

THOMAS E.

BENNETT,

PATRICIA L.
JAMES D.

LYNN M.

2:14cv249

MONTGOMERY,

FOX,

PERKINSON,

RICHARD H.

and

GADDIS,
Defendants.

OPINION AND ORDER

This matter is before the Court on three motions to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6),

filed by

Defendants James D. Fox ("Fox"), ECF No. 165, Lynn M. Perkinson

("Perkinson"),

ECF

No.

169,

Defendants").1
complaint

ECF

No.

167,

and

(collectively,

Richard H.

Gaddis

"Defendants"

or

("Gaddis"),

"12(b)(6)

Because the allegations in the second amended

against

the

12(b)(6)

1 Multiple summary judgment motions,

Defendants

are

substantially

including motions that have only

recently become ripe, as well as other motions seeking other forms of
relief, are currently pending before the Court.
Such motions will be
addressed by separate Order, with a summary judgment ruling being
reserved until after oral argument is conducted.
As Plaintiff has
recently been authorized by the Court to conduct an additional
deposition in this case,
the
summary judgment hearing will be
scheduled for a date after such deposition has been completed.

similar,
instant

as

are

the

arguments

Opinion

and

Order

pending 12(b)(6)

motions.

in

support

collectively

of

dismissal,

addresses

all

the
three

For the reasons set forth below,

motions to dismiss are GRANTED in part,

the

and DENIED in part.

I. Factual and Procedural Background

The relevant factual and procedural background has been set

forth in detail in previous Orders issued in this case, ECF Nos.

57, 103, and is incorporated by reference herein.2
arises out of David
1991

state-court

Boyce's

conviction

("Boyce"
for

or

"Plaintiff")

murder,

which

Boyce's imprisonment for twenty-two years.

vacated

resulted

in

Plaintiff initially

filed suit against the City of Newport News,
("Bennett"),

This action

Thomas E. Bennett

the lead Newport News Police detective that worked

on Boyce's criminal case; Patricia L. Montgomery ("Montgomery"),
a Newport News Police evidence technician;
Newport News Police officers.

The four John Doe defendants were

later replaced by named Defendants Fox,
Paul

W.

Haymes

("Haymes").

and four "John Doe"

The

claims

Perkinson,
against

Gaddis, and
the

City

of

Newport News and Haymes have been dismissed and/or withdrawn.
Taking the allegations in the second amended complaint as
true

for the

purposes

of

the pending 12(b)(6)

motions,

Timothy

Kurt Askew was stabbed to death in the early morning of May 19,

2 These prior Orders were issued by Senior United States District Judge
Robert G. Doumar
undersigned judge.

before

the

instant

case

was

reassigned

to

the

1990 in the Newport News Econo Lodge Motel.

Second Am. Compl.

I 45, ECF No. 115.

On the same day as the murder, Plaintiff was

questioned

Newport

by

the

News

Police

and

either

Bennett

or

someone at Bennett's direction took a Polaroid picture of Boyce

("the Polaroid"),
69-70.

The

who at the time had short hair.

Polaroid

was

not

provided

to

Boyce

Id. 11 61,
prior

to

or

during his criminal trial, and Boyce was convicted in part on:

(1)

eyewitness testimony asserting that a person with shoulder-

length hair

was

seen

fleeing

the

scene

of

the murder;

and

(2) Montgomery's false testimony that Boyce had long hair when

the police first interviewed him.
Boyce

was

sentenced

to

Id. 1 70, 166-68.

two

life

terms

in

prison

and,

continuing to assert his innocence, he pursued various forms of

post-trial relief.
filed

state and

conviction

Id^ 11 187-93,

federal

overturned,

habeas
and

198-203.

In 2005,

petitions

seeking

federal

petition

his

Boyce

to have
was

pending resolution of the state proceedings.

Id.

conjunction

stayed

petition,

submitted

a

with

Boyce's

subpoena

to

2005
the

state
Newport

habeas
News

1 214.

Police

In 2006, Defendants Perkinson and Gaddis,

supervision of Defendant Fox,
and

while

all

three

In
Boyce

Department

seeking the production of the criminal investigative file.
II 214-15.

his

Id.

under the

assembled the file for production,

Defendants

were

aware

contained an envelope with numerous photographs,

that

to

the

file

include the

Polaroid depicting Boyce with short hair,

produced.
habeas

Id.

11 217-20.

petition,

Boyce

the

Polaroid was not

During the pendency of his state

continued

making

requests

Polaroid was

reports

the

Id. 1 222.

Polaroid, and it was finally produced in 2008.

for

The

discovered by now dismissed Defendant Haymes,

that

it

only

took

him

about

a

minute

to

Polaroid in the police records box labeled "Boyce."
In
state
turn

2010,

court
over

(1963),

following

concluded

the

and

a

Polaroid

evidentiary

while

was

prosecution's

a

the

violation

that such violation

guilty verdict,

after

of

the

hearing,

Brady

the

failure

v.

to

Maryland,

undermined confidence

in the

Boyce's state habeas petition was untimely and

relief was therefore unavailable.
later,

locate

Id. 1 223.

multi-day

that

who

the

conclusion

IdL_ 11 225-27.

of

all

state

Three years

habeas

appeal

proceedings, on March 19, 2013, Boyce's federal habeas petition

was granted,

and Boyce's conviction was vacated.

Id.

1 240.

Later that year, state prosecutors elected not to re-try Boyce.

Id.

1 243.

Boyce thereafter filed the instant action seeking

civil damages pursuant to 42 U.S.C. § 1983 and various state law
theories of recovery.

The three motions to dismiss currently before the Court are
filed

by

until

2006

requests

Defendants
when

that

they

associated

had

no

involvement

participated

with

Boyce's

in

2005

in

responding
state

Boyce's
to

habeas

case

subpoena
petition.

The

second

amended

complaint

against such Defendants:
ongoing

conspiracy

states

three

grounds

claim alleging

relief

Count Two - a § 1983 claim alleging an

to

deny

Boyce

a

constitutional

including ongoing concealment of the Polaroid;

1983

for

deprivation

of

access

trial,

Count Three - a §

to

the

courts;

Count Seven - a gross negligence claim under Virginia law.

and

The

various arguments seeking dismissal of each of these claims are
addressed below.

II.

Federal Rule of

of a complaint,

Standard of Review

Civil Procedure 12(b)(6)

permits dismissal

or a claim within a complaint,

based on the

plaintiff's "failure to state a claim upon which relief can be
granted."

Fed.

R.

Civ.

P.

12(b)(6).

A

motion

to dismiss

pursuant to Rule 12(b)(6) must be read in conjunction with Rule
8(a)(2),

which

requires

"a short and plain

statement

of

the

claim showing that the pleader is entitled to relief," Fed.
Civ. P.

8(a)(2),

what the

R.

so as to "'give the defendant fair notice of

. . . claim is and the grounds upon which it rests,'"

Bell Atl.

Corp.

v. Twombly,

550 U.S.

544,

555

(2007)

(omission

in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
The
pleading

United

States

standard set

Supreme

forth

Court

in Rule

8(a)

has
as

interpreted
requiring

the

that

a

complaint include enough facts for the claim to be "plausible on
its

face"

and

thereby

"raise

a

right

to

relief

above

the

speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact)."

570
is

(internal citations omitted).
"not

more

akin

than

Ashcroft
550

a

at

the

possibility"
556

556).

U.S.

In

when

the

court

The plausibility requirement

'probability requirement, ' but

Iqbal,

plausibility
allows

a

sheer

v.

U.S.

to

Id. at 555,

that

662,

other

draw

the

defendant

(2009)

words,

plaintiff

to

678

a

"[a]

pleads

12(b)(6)

is

claim

factual

reasonable

for

liable.

has

the

complaint without resolving factual disputes,

facial

content

inference

motion tests

asks

(quoting Twombly,

defendant is liable for the misconduct alleged."

Because a Rule

it

that

that
the

Id. at 663.

sufficiency of

a

a district court

"'must accept as true all of the factual allegations contained
in the complaint'
of

the

and 'draw all reasonable inferences in favor

plaintiff.'"

Montgomery County,
E.I,

du

435,

440

Pont

de

(4th

Kensington

684

Nemours

Cir.

F.3d 462,
&

Co.

2011)).

v.

Volunteer

467

the

well-pled factual allegations as true,
similarly accepted.

U.S.

at

555).

determination

as

claim for relief"

Iqbal,

"whether

is a

Indus.,

court

the
a

Dep't

2012)
Inc.,

must

v.

(quoting
637

accept

F.3d

all

legal conclusions are not

556 U.S. at 678

Applying
to

(4th Cir.

Kolon

While

Fire

above

(citing Twombly,

rules,

complaint

states

550

the

ultimate

a

plausible

"context-specific task that requires the

reviewing court
sense."

Id.

to draw on

at 679

its judicial experience and common

(citation omitted).
III.

Discussion

A. § 1983 Conspiracy to Violate Constitutional Rights
1.

Timeliness

Defendants first argue that Boyce's civil conspiracy claim,

which alleges

violate

that

Boyce's

(primarily

Defendants

participated

due process rights

through

ongoing

exculpatory Polaroid),

and

in

right

intentional

a

conspiracy to

to a fair

suppression

trial

of

the

is untimely as it was not filed within

two years of the date on which the Polaroid was disclosed to

Boyce.

It is well-established that:

(1)

the Virginia two-year

limitation period for personal injury actions applies to Boyce's
§ 1983 claims, Va. Code Ann. § 8.01-243(A);

determines

claims,

the

applicable

statute

of

(2) while "state law

limitations

for

§

1983

federal law governs the date on which that limitations

period begins to run," Owens v. Baltimore City State's Attorneys
Office,
Kato,

767
54 9

F.3d
U.S.

379,
3 84,

388
388

(4th

Cir.

(2007));

2014)

(3)

(citing Wallace

although

the

v.

"standard

rule" holds that § 1983 claims accrue "'when the plaintiff has a
complete and present cause of action'

plaintiff

knows

or

standard rule does
(quoting Wallace,

has

reason

to

not apply to all
549 U.S.

at

388);

. . . that is, when the

know

of

§ 1983
(4)

his

injury,"

claims,

id.

at

such
389

"to determine the date

of accrual for a particular § 1983 claim,

the common-law tort
§ 1983

claim

and

that

is most

determine

the

a court must look to

analogous

date

on

to the plaintiff's

which

the

limitations

period for this most analogous tort claim would begin to run,"

id.

(citing

Wallace,

common law,

the

prosecution

claim

brought

390

U.S.

at

388);

and

(5)

"[u]nder

the

limitations period for a plaintiff's malicious

against

referred to as

549

commences

him
the

are

when

the

resolved

in

[criminal]
his

proceedings

favor,"

a

concept

"favorable-termination requirement,"

(citations omitted).

Synthesizing the above,

id. at

when a § 1983

claim is most akin to a common law malicious prosecution claim,

or otherwise depends on undercutting the validity of a prior
state

conviction,

conviction

"has

such claim does
been

reversed

on

not

accrue

direct

until

appeal,

the

prior

expunged

by

executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
Heck v. Humphrey,

court's issuance of a writ of habeas corpus."
512 U.S. 477, 486-87

Here,

(1994).

because this Court finds that "the tort of malicious

prosecution
Brady-like

.

.

. provides

[conspiracy]

the

claim,"

closest
federal

analogy
law

to

provides

[Boyce's]
that

the

limitations period for such claim began to

run no earlier than

the

this

date

on

which

the

writ of habeas corpus

Richmond

division

(March 19, 2013).

of

Owens,

Court

issued

a

767 F.3d at 390.

Moreover,

because

the

Fourth

limitations period does not
granted,
in

a

As

has

held

that

begin running when a new trial

the

is

but instead requires charges to be favorably terminated

manner

in

limitations clock

18,

Circuit

which

they

"cannot

be

revived,"

id.,

the

likely did not begin running until September

2013, when the state charges against Boyce were terminated.
12(b)(6)

claim

is

utilized

Defendants

untimely
for

the

do

when

not

contend

either

limitations

of

the

that

above

calculation,

Boyce's

conspiracy

stated

dates

Defendants'

are

argument

fails to justify dismissal of Count Two.3
3 Defendants cite an unpublished Fourth Circuit opinion decided years

prior to Owens for the proposition that "favorable termination" is not
an element of a § 1983 conspiracy claim.
Wright v. Oliver, 99 F.3d
1133 (4th Cir. 1996) (table).
Wright, however, appears to distinguish
between claims alleging a conspiracy to violate Fourth Amendment

rights, a conspiracy to obstruct justice, and "behavior constituting
malicious prosecution," concluding that favorable termination was not
required for the two conspiracy claims, but was required for the
malicious prosecution claim.
Id.
Moreover, controlling case law
establishes

that

a

§ 1983

conspiracy claim requires

proof

that

the

conspirators acted "in concert and that some overt act was done in
furtherance of the conspiracy which resulted in [the] deprivation of a
constitutional right," Hinkle v. City of Clarksburg, W.Va., 81 F.3d
416, 421 (4th Cir. 1996) (emphasis added).
Here, because the alleged
conspiracy identifies the constitutional harm as the intentional (and
ongoing) suppression of exculpatory evidence, and such constitutional
violation, if proven, necessarily calls into question the validity of
Boyce's state conviction, this Court is not persuaded that the broad
language used in the unpublished Wright opinion extends to all § 1983
conspiracy claims, including those alleging conspiracies to commit
Brady-like violations or malicious prosecution.
See Robinson v.
Maruffi,

895 F.2d 649,

654-55

(10th Cir.

1990)

("Not until the end of

this
second criminal
trial,
with Robinson's
acquittal,
did his
malicious prosecution conspiracy claim accrue."); Rose v. Bartle, 871
F.2d 331,
352
(3d Cir.
1989)
("[I]f
the
plaintiffs'
malicious
prosecution claims did not accrue until favorable termination, it is
difficult to see how a cause of action for conspiracy to prosecute
maliciously
could have
accrued before
that
date.");
Nieves
v.
McSweeney, 73 F. Supp. 2d 98, 104 (D. Mass. 1999)
("[P]laintiffs'

2. Adequacy of Factual Allegations

Defendants
sufficient

next

facts

to

argue
state

that

a

Boyce

plausible

fails

claim

to

that

advance

Defendants

participated in a conspiracy to deny Boyce a fair trial through,
among

other

However,

things,

the

suppressing

amended

the

complaint

includes

assertions supplying circumstantial

assertion

that,

among

other

exculpatory

evidence

abuses,

Polaroid.

numerous

factual

in support of

the

Polaroid

the

was

intentionally withheld from Boyce for many years by Bennett and
others

at

asserts
of

the Newport

News

that Defendants

Police Department.

Fox,

Perkinson,

the Polaroid in the criminal

News Police Department,

Boyce

and Gaddis,

further

were aware

file maintained by the Newport

that they communicated with each other

about the contents of such file,

were aware of the importance of

the Polaroid, and yet they failed to produce it in response to a
subpoena.
421

See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416,

(4th Cir.

must

be

1996)

supported

inference that
a

mutual

(indicating that a § 1983
by

facts

that

[the conspirators]

understanding

to

try

conspiracy claim

"reasonably

lead

to

positively or tacitly came
to

accomplish

a

common

the

to
and

unlawful plan").

causes of action for conspiracy to commit malicious prosecution did
not arise, let alone accrue, until the underlying criminal proceedings
were terminated in their favor.").
10

While

advanced

innocent

by

prevail at
pled

explanations

12(b)(6)

the

Defendants,

sufficient

violate

circumstantial

Boyce's

and

facts

such

conduct

to conceal

Accordingly,

to

have

been

explanations

may

Plaintiff has

plausibly

support

the

Defendants knowingly joined a conspiracy

constitutional

that they took steps

Boyce.4

their

summary judgment or trial stages,

claim that the 12(b)(6)

to

for

rights

to

a

fair

trial

and

the exculpatory Polaroid from

Defendants'

dismissal

motions

fail

to

demonstrate the inadequacy of the factual allegations.
3. Intracorporate Immunity Doctrine

Defendants alternatively assert
dismissed

because

Boyce

alleges

that Count Two should be
a

conspiracy

only

among

individuals within the Newport News Police Department and that,

with limited exceptions,

a single entity and its employees are

not legally capable of entering into a conspiracy.
Inc.

v.

counters

complaint

Aboud,

313

F.3d

166,

179

(4th

Cir.

ePlus Tech.,
2002).

Boyce

by highlighting the allegation in the second amended

asserting

individuals

that

"who were not

the

named

Defendants

employees of

conspired

the Newport News

with

Police

4 While 12(b)(6) Defendants appear to invite the Court to consider the
fact that Boyce conducted substantial discovery prior to filing the
second amended complaint, this Court's 12(b)(6) analysis is limited to
the facts as alleged by Boyce, viewed in his favor.

11

Department,
Boyce

including,

further

the 12(b)(6)
15 years
that

argues

but
in

Defendants'

after the

not

limited

opposition

to

[Herman]

dismissal

Elkins."5

that,

because

conspiratorial acts occurred more than

conspiracy began,

named or unnamed

to

conspirators

a plausible

were

no

claim exists

longer

employed by

the Newport News Police Department in 2006 through 2008 yet they

still played a part in the ongoing conspiracy.
While

it

allegations
existence

appears

that

Defendants

in the second amended

of

two

discrete

seek

complaint

conspiracies

early 1990s between Elkins,

Bennett,

to

as

recast

asserting

(one occurring

and Montgomery,

second beginning in 2006 between Fox,

Perkinson,

in

the

the
the

and the

and Gaddis),

such characterization is not in line with this Court's 12(b)(6)

obligation to construe the facts and reasonable inferences in
Boyce's favor.
favor,

The second amended complaint,

sufficiently asserts

a

single

read in Boyce's

far-reaching

conspiracy

aimed at depriving Boyce of a constitutionally legitimate trial
in

the

early

1990s

and

continuing

over

time

to

both

conceal the prior police misconduct and to continue
Boyce

from

While

it

is

involvement

securing

a

undisputed
in

Boyce's

constitutionally
that
case

the
until

2006,

to

to prevent

legitimate

12(b)(6)

seek

(re)trial.

Defendants
Defendants

had

no

cite

no

5 Herman Elkins testified against Boyce at a preliminary state hearing
and at Boyce's criminal trial, testifying
guilt to Elkins while in state custody.
12

that

Boyce

confessed

his

authority that would absolve them from § 1983 liability if they
are

found

to

conspiracy

have

between

joined

a

Bennett

still

and

ongoing,

Elkins.

amended complaint not only alleges

or

"revived,"

Notably,

that Bennett

the

second

conspired with

Elkins in the early 1990s to deprive Boyce of a fair trial,

but

further alleges that Bennett met with Elkins about Boyce's case

approximately 15 years after Boyce was convicted.
City of Boston, 657 F.3d 39,
concealment

of

grease

skids

the

conviction,

material

49-50

evidence

for false

unarguably

Cf. Haley v.

(1st Cir. 2011)
by

the

police,

("Deliberate
designed

testimony and encourage

implicates

a

defendant's

to

wrongful

due

process

rights").

As discussed above,

by- case

determination

the

as

12(b)(6)

to

standard requires a case-

whether

a

complaint

states

a

plausible claim, and, here, the Court finds that Boyce's second
amended

complaint

meets

such

standard.

The

Court's

case-

specific determination in no way suggests that a typical § 1983
plaintiff

may

easily

overcome

the

intracorporate

immunity

doctrine merely by naming a police informant/cooperator as a co
conspirator.
involvement
assertion

However,
in

that

here,

in

light

criminal proceedings
Elkins

recanted

his

of

Elkins'

against
trial

Boyce,

extensive

the

testimony,

factual
and

the

factual assertion that Bennett and/or other officers had contact
with

Elkins

years

after

Boyce's
13

trial

and

convinced

him

to

modify his conduct in order to obstruct Boyce from securing a
retrial,

all color this Court's

involved in the conspiracy.6

interpretation of the players

Additionally, the ease with which

the Polaroid was ultimately found in records maintained by the
Newport

News

plausibility

remained

Police

of

the

ongoing,

provides

claim

or

further

that

was

a

gloss

conspiracy

revived,

in

supporting

involving

the

the

Elkins

mid-2000s.7

6 Judge Doumar's prior 12(b)(6) rulings, ECF Nos. 57, 103, constitute
the "law of the case."
are clearly erroneous,

Boyce has not demonstrated that such rulings
and this Court's analysis herein in no way

seeks to undercut such rulings.
TFWS, Inc. v. Franchot, 572 F.3d 186,
191 (4th Cir. 2009). As previously explained by Judge Doumar: (1) the
absolute immunity enjoyed by trial witnesses precludes Boyce from

recovering § 1983 damages based on Elkins' false testimony or the
existence of a conspiracy to present false testimony; and (2) to avoid
erosion of such immunity, Boyce cannot rely on false testimony as
ECF No.
circumstantial evidence in support of his Brady-like claims.
57, at 7-8.
That said, Judge Doumar's prior rulings do not appear to

squarely address the admissibility of pre-testimonial acts associated
with the fabrication of evidence

(to the extent applicable) , or post-

testimonial acts years removed from trial testimony.
Cf. Rehberg v.
Paulk, 132 S. Ct. 1497, 1507 n.l (2012) (noting that while absolute
witness immunity extends to conspiracies to testify falsely, it does
not "extendi] to all activity that a witness conducts outside of the
grand jury room," and is inapplicable when police officers "fabricate
evidence concerning an unsolved crime"); Lisker v. City of Los
Angeles,
780 F.3d 1237,
1242 (9th Cir.
2015)
(distinguishing
"conspiracies to testify falsely from 'non-testimonial' acts," such as
"preventing witnesses from coming forward") (internal citations and
quotation marks omitted).

7 The Court agrees with Defendants that the second amended complaint
provides no direct link between Bennett/Elkins and the 12(b)(6)
Defendants.
However, although arguably a close call, when the second
amended complaint is considered in its entirety, the Court finds that
there are sufficient facts to support the plausible inference that, in
order to conceal past misconduct by a fellow officer, in 2006, the
12(b) (6) Defendants knowingly joined a conspiracy aimed at continuing

the non-production of an exculpatory Polaroid that was
locatable in an investigative file maintained by the police.
14

easily

Intracorporate immunity is

therefore not

available

as

a shield

from liability at the 12(b)(6) stage.8
4. Qualified Immunity
"Qualified

immunity

civil money damages]

protects

public

officials

from

[a

suit when the state of the law is such that

they would not have known that their conduct violates statutory
or

constitutional

omitted).

rights."

Owens,

shown

right,

F.3d at

395

facts

or

that

that

(2)

make

out

(1)
a

a plaintiff has

violation

at

the right

of

was

issue

a

(alternation

citation

in

omitted).

original)
Here,

(internal

Defendants

a public

not alleged

constitutional

[not]

established' at the time of its alleged violation."

96

(citations

"To establish a qualified-immunity defense,

official must demonstrate that
or

767

'clearly

Id. at 395-

quotation

jointly argue

marks
that

and
Boyce

has not alleged a violation of a constitutional right, and that

any

such

Defendant

right
Fox

was

not

further

clearly

argues

established.

that

because

Additionally,
he

only

had

a

supervisory role in the search for the Polaroid, his conduct did
not violate a clearly established right.
8 Defendants contend in their reply briefs that they are shielded by
intracorporate
immunity unless
there
are
allegations
that
they
personally met
with and directly conspired with Elkins.
Such
statement, unsupported by citations to case law, is uncompelling.
Cf.
Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (indicating that
a plaintiff advancing a § 1983 conspiracy claim is not required to
prove that all participants in the conspiracy knew each other or that
they knew the precise contours of the illegal plan)
(citations
omitted);
(7th Cir.

Cameo Convalescent
1984) (same).

Ctr. ,

15

Inc.

v.

Senn,

738

F.2d

836,

841

The

Court

finds

that

the

12(b)(6)

Defendants

fail

to

demonstrate at this stage that they are shielded from liability
on the conspiracy count based on qualified immunity.
amended complaint
Fox,

alleges

communicated

communications)

with

that

each

all

The second

three Defendants,

other

(including

including

through

written

about the search for the Polaroid and knowingly

conspired to hide such exculpatory evidence in order to obstruct
Boyce's

efforts

to

secure

a

constitutionally

trial/retrial.

Fourth Circuit precedent

that,

a

by

1988,

constitutional

police

law

when

evidence in bad faith."

For all of

officer
he

Id.

adequate

"unmistakably provides

violates

suppresses

clearly
material

established
exculpatory

at 401.

the reasons set forth above,

Defendants'

motion

to dismiss Count Two of the second amended complaint is denied.
B. § 1983 Deprivation of Access to Courts
Defendants'

allege facts
access

to

the

12(b)(6)

motions

contend

that

Boyce

fails

to

supporting an actionable claim for deprivation of
courts

(Count

Three).

As

discussed below,

such

argument is well-founded because Boyce's own factual allegations
demonstrate that he

was not denied access to

the courts by the

actions of any of the 12(b)(6) Defendants.
In

Christopher

v.

Harbury,

536

U.S.

403,

414

(2002),

the

Supreme Court discussed the contours of the constitutional right
to

access

to

the

courts,

and

distinguished
16

between

litigation

opportunities
"already

"yet

to

lost."

endeavors

to

be

Lost

allege,

gained"

and

opportunities,

include

the

those
which

loss

of

opportunities
is

a

opportunity

to

sue

(such

as

when

a

Boyce

settlement

inadequate settlement of a meritorious civil case,
an

what

or

the loss of

limitations

period

expires) , or the "loss of an opportunity to seek some particular
order

of

relief,"

all

of

which

look

specific litigation ended poorly,

"backward

to

a

time

when

or could not have commenced,

or could have produced a remedy subsequently unobtainable."9
(citations omitted).
while

the

The Supreme Court further explained that,

constitutional

unsettled,

Id.

basis

for

lost

access

claims

is

both Supreme Court and Circuit precedent rest on the

recognition

that

underlying claim,

the

lost

access

claim

"is

ancillary

to

the

without which a plaintiff cannot have suffered

injury by being shut out

of

court."

Id.

Accordingly,

" [i] t

follows that the underlying cause of action, whether anticipated
or lost, is an element that must be described in the complaint"

alleging a lost access claim.

required

to

recompense"

available"

"identify
for

the

a
lost

Id.

remedy
access

Moreover,

that
that

may
is

a plaintiff is

be
"not

awarded

as

otherwise

as a remedy for a pending cause of action or as a

9 In contrast to litigation opportunities that have been lost, the "yet
to be gained" opportunities are those where a prisoner or other
litigant is presently being denied access and is seeking "to open the
courthouse doors" for contemplated litigation.
Christopher, 536 U.S.
at 413. These situations include prisoners asserting a lack of access
to the courts due to an inadequate law-library. Id.
17

remedy in "some suit that may yet be brought."

Id. at 415-16,

421.

Here,

Boyce

argues

that

the

delayed

production

of

the

Polaroid had a negative impact on his state and federal habeas
cases.

However,

Boyce's state habeas action,

filed in 2005, was

denied as untimely filed, and thus, the 2006 conduct of 12(b)(6)
Defendants

had no material

bearing on its

As to Boyce's federal habeas case,

ultimate

resolution.

such case was resolved in

Boyce's favor after the Polaroid was produced,

and thus,

Boyce

does not plausibly state a lost or frustrated opportunity to
access

805,

the

825

federal

(4th

courts.

Cir.

2012)

claims require proof
[the Appellants]
ineffective

Cook

v.

(recognizing

Howard,

that

'that the defendants'

484

"access

F.

to

actions

App'x

courts

foreclosed

from filing suit in . . . court or rendered

any

(alterations

See

. . . remedy

in

original)

[they]

(quoting

previously may have had'"

Swekel

v.

City

of

River

Rouge, 119 F.3d 1259, 1263-64 (6th Cir. 1997))); Estate of Smith
v.

Marasco,

318

F.3d 497,

when a cover-up
plaintiff's
merits

by

511

is attempted but

claims
the

to be

WL

denial

225465,

appropriate

of

at

access

*8

if

(W.D.

the

2003)

court,

Jan.

cover-up
18

is

and

access

W. v. Brankel,
Mo.

(explaining that

is discovered

fully developed

unconstitutionally denied);
2015

(3d Cir.

16,

No.
2015)

exposed

in

time

for

addressed on
has

not

a

the
been

13-3237-CV-S-DGK,
("[T]here

in

time

is

for

no

the

plaintiff

to

F.3d 325,

seek

redress."

328-29 (7th Cir.

While

Boyce

(citing Vasquez

v.

Hernandez,

60

1995))).

argues

that

the

federal

habeas

relief

he

ultimately obtained was unconstitutionally delayed based on the
12(b)(6)

delay,

Defendants'

conduct,

he

fails

to demonstrate

absent some concomitant prejudice/injury,

that

such

is sufficient

to constitute the denial of a constitutional right to access the
courts.10

See White v. White,

(indicating that,

886 F.2d 721,

to state a claim,

723

(4th Cir.

1989)

the plaintiff must allege

how a claimed delay "deprived him of meaningful access to the
courts"); Pronin v. Johnson, No. 15-6534,

(4th Cir.

Oct.

7,

2015)

(unpublished)

2015 WL 5833939,

("To prevail on a claim

that he was denied access

to the courts,

must

suffered

demonstrate

missing

that

he

a court-imposed

deadline

an

Casey,

518

Duckworth,
while

U.S.

343,

65 F.3d 555,

351-52
558-59

the Seventh Circuit's

a

[§ 1983 plaintiff]

actual

injury,

or being unable

complaint because of the Defendants'

at *1

actions"

(1996)));
(7th Cir.

see
1995)

formulation of

the

such

to file

as

a

(citing Lewis v.
also

Gentry

v.

(explaining that
applicable

test

10 As Defendants argue, Boyce also fails to allege what degree of delay
was
directly attributable
to
the
Notably, the evidentiary hearing in

12(b)(6)
Defendants'
conduct.
the state habeas case was not
conducted until two years after the Polaroid was ultimately produced.
Accordingly,
while common sense would suggest that the
delayed
production of the Polaroid had some impact on the timing of the
resolution of Boyce's habeas cases, the facts in the second amended
complaint do not effectively distinguish the delay linked to the
Polaroid from other factors causing the state habeas process to take
such a lengthy period of time.
19

requires

proof

of

"interruption

and/or

delay"

of

litigation,

such phrasing "does not mean that any delay is a detriment," and
that "[r]egardless of the length of an alleged delay, a prisoner
must show actual substantial prejudice to

(emphasis

added)

omitted).
state

or

In addition
federal

constitutional

remedy

(internal
to

habeas

lost

citations

failing

claim,

"that may be awarded as

and

sufficient

Boyce

fails

recompense"

misconduct that is "not otherwise available"

existing claim in this action.

quotation

to allege prejudice

litigation

access

specific litigation")

to
to

for

marks
to his

support

a

identify

a

the

alleged

as a remedy on an

Christopher, 536 U.S. at 415-16,

421.

Boyce's second amended complaint also fails to adequately
identify any other

legal

action or claim

frustrated due to the 12(b)(6)

and 2008.

Defendants'

that

was

lost

or

conduct between 2006

While the second amended complaint includes the broad

assertion that the delayed production of the Polaroid prevented

Boyce

from

pursuing

actions

"in

the

civil

courts

of

the

Commonwealth of Virginia seeking redress and compensation for

Defendant officers' wrongful conduct," ECF No. 115 1 288, such
vague assertion is insufficient to state a plausible right to
relief.

See

Fennell v.

at *4 (E.D. Va. May 31,

Allen,

2011)

No.

3:09CV468,

2011 WL 2144560,

("[I]n order to plead a backward-

looking denial of access to the courts claim,
20

a plaintiff must

identify, with specificity, a non-frivolous legal claim that the
defendant's
underlying

actions
legal

prevented

claim

must

him
be

from
stated

Federal Rule of Civil Procedure 8(a),

independently
536 U.S.

pursued'"

litigating,"

(emphasis

just as

added)

such

accordance

"'in

and

with

if it were being

(quoting

Christopher,

at 417)).

In sum,

even assuming that

12(b)(6)

Defendants joined the

conspiracy in 2006 to knowingly violate Boyce's constitutional
rights, Boyce's state and federal habeas petitions were already
pending at that time and both petitions were not resolved until
after the Polaroid was produced to Boyce in 2008.

Accordingly,

there is no plausible allegation that the resolution of either
habeas case was negatively impacted by the delayed production of
the Polaroid.
action

lost,

or

Additionally,

claim

that

could

Boyce fails to identify any other
have

been

filed

in

2006,

but

was

forfeited, or otherwise permanently hindered because the

Polaroid was

production

not

produced

alleged by Boyce

until

2008.

While

the

could plainly support

damages with respect to Boyce's other § 1983 claims,

delay

in

additional
including

his conspiracy claim, Boyce fails to plead facts that support an

independent

constitutional

access to the courts.
the 12(b)(6)

claim

grounded

in

the

denial

of

Boyce's denial of access claim against

Defendants is therefore dismissed.

21

C. Gross Negligence

Defendants'

12(b)(6)

motions

contend

that

Boyce

fails

to

allege facts supporting an actionable claim for gross negligence
under Virginia law (Count Seven).

As argued by Defendants,

this

Court finds it appropriate to incorporate herein Judge Doumar's
prior

12(b)(6)

against Bennett
No.

57,

Corp.,

at

court

coordinate

"should

TFWS,

when

(1988)

be

Inc.

a

that

court

law of

v.

Colt

the

to

revisit

absence

Franchot,

"[t]he

decides

law
upon

as

ECF

Operating
a rule,

decisions

of

572

claims

case."

Indus.

(explaining that,

the
v.

gross-negligence

"the

loathe"

"in

(explaining

that

Boyce's

Christianson

817

court

2009)

posits

see

800,

circumstances");

Cir.

of

and Montgomery as

9-12;

486 U.S.

federal

analysis

of

a
a

extraordinary

F.3d 186,

192

of

the

doctrine

a

rule

case
of

(4th

law,

that

decision should continue to govern the same issues in subsequent
stages in the same case"
prior

decision was

unless,

among other exceptions,

"clearly erroneous

the

and would work manifest

injustice," in that it was "wrong with the force of a five-week-

old,

unrefrigerated dead fish")

citations
rulings,

omitted).
12(b)(6)

(internal quotation marks and

Consistent

Defendants'

with

motions

to

Judge

Doumar's

dismiss

the

prior

state-law

gross negligence claims are granted.

Judge Doumar previously dismissed similar state-law gross
negligence

claims

asserted

by
22

Boyce

against

Bennett

and

Montgomery

based

on

his

legal

finding

that

Boyce

failed

to

identify a duty under Virginia law "not to be grossly negligent"
by "concealing evidence" or "failing to alleviate the harm . . .
by refusing to turn over

. . . evidence."

ECF No.

57, at

10.

For the purposes of this case, the undersigned Judge adopts such
prior

legal

finding

regarding

the

lack

of

a

viable

state-law

"gross negligence" cause of action against a city police officer

for

negligent

investigation

investigative materials.
Doumar's

prior

ruling

and/or

Boyce fails
was

clearly

negligent

production

to demonstrate that Judge
erroneous,

and

provides further support for Judge Doumar's analysis.
v. McDorman,

a

820 F. Supp. 1001, 1008 (W.D. Va. 1992)

"willful and wanton negligence"

claim because

had "cited no authority for the existence,
of

a

duty upon police

officers

conducting investigations,"

detective's conduct

to

of

exercise

case

law

See Lewis
(dismissing

the plaintiff

under Virginia law,
reasonable

care

in

further explaining that the police

"either amounted to malicious prosecution,

with its constitutional effects,

or it was not actionable under

Virginia law"); Durham v. Horner, 759 F. Supp. 2d 810, 815 (W.D.
Va. 2010)

of

("Virginia law recognizes no [gross negligence] cause

action

against

police

officers

for

conducting

investigations .").X1

Boyce's citations to a Virginia case addressing negligence claims
outside

of

the

police

investigation
23

context

is

insufficient

to

In

adopting

Boyce's

Judge

efforts

to

Doumar's

finding,

distinguish

the

between

rejects

negligent

a

Court

initial

investigation and subsequent negligence associated with a police
investigative
prior

file.

ruling

associated

ECF No.

was

with

not

the

179,

at

limited

initial

27

to

n.4.

Judge

dismissing

investigation,

but

Doumar's

allegations

also

dismissed

Boyce's claim that Bennett and Montgomery were grossly negligent

by

failing

to

alleviate

prior concealment

"refusing to turn over that evidence."

Orig.

Compl.,

ECF No.

claim

against

Bennett

claimed

duty

evidence]
requested")

to

to
the

1 1 313
and

"turn[]
proper

(emphasis

ECF No.

through

57, at 10; see

based,

in

[exculpatory

and

parties

added).

evidence

(asserting a gross negligence

Montgomery

over

of

as

required

Boyce's

negligence claims against the 12(b)(6)

part,

on

a

impeachment
and/or

state-law

when
gross

Defendants are therefore

dismissed based on the law of the case.

demonstrate that Judge Doumar's prior ruling is clearly erroneous.
See First Virginia Bank-Colonial v. Baker, 225 Va. 72, 79 (1983)

(discussing tort-liability of a clerk of court).

Notably, state court

actions for malicious prosecution "arising from a criminal case" are
"not favored" under Virginia law, and the requirements are "more
stringent than those applied to other tort actions," Ayyildiz v. Kidd,
220 Va. 1080, 1082 (1980), which at a minimum suggests a reason why

Virginia courts may treat investigative tort actions against police
officers differently.
Because recognizing a tort action for a
"negligent police investigation" or "negligent police maintenance of

investigative records," would conceivably undercut the heightened
requirements of malicious prosecution actions, Boyce's citation to
Baker fails to demonstrate clear error in the prior ruling.
24

IV.

As set forth above,

part,

Defendants'

Counts

ECF

Two,

No.

the Court GRANTS in part,

Fox, Perkinson,

Three,

165,

Conclusion

and

167,

Seven

and

and Gaddis'

motions to dismiss

the

of

169.

amended

Such

second

motions

are

respect to Count Three (§ 1983 access to courts)
(state-law gross negligence)
conspiracy).
the

based

on

and DENIED as

the

of

the

conspiracy

developed

factual

claim

set

record

complaint.

GRANTED

with

and Count Seven

to Count Two

The Court will revisit Defendants'

viability

and DENIES in

(§ 1983

arguments as to

forth
after

in
a

conducted as part of the summary judgment process.

Count
hearing

Two
is

indicated

such hearing will be conducted after Boyce has

above,

As

completed

the supplemental discovery recently authorized by the Court.
The Clerk is REQUESTED
Order

to all

IT

IS

SO

counsel

of

to

send a

copy of

this Opinion and

record.

ORDERED.

/s/i
Mark
UNITED

Norfolk, Virginia

November R

, 2015

25

STATES

S.

Davis

DISTRICT

JUDGE