Long v. Beres et al
Filing
36
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 2/8/12. Copy sent: Yes as directed(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JOHNATHAN C. LONG,
Plaintiff,
Civil Action No. 3:10CV532
v.
DETECTIVE BERES, et a/.,
Defendants.
MEMORANDUM OPINION
Johnathan C. Long, a federal prisoner proceeding pro se and in forma pauperis, brings
this civil action pursuant to 42 U.S.C. § 1983. Long alleges that, by swabbing his hands for
gunpowder residue without his consent, Detective Beres, Officer Nemetz, and Officer Alexander
("Defendants") violated his Fourth and Fifth Amendment rights. Defendants move to dismiss
Long's complaint on the grounds that they are entitled to qualified immunity or, in the
alternative, that Long's claims are not cognizable under the Supreme Court's holding in Heck v.
Humphrey, 512 U.S. 477 (1994). Long has responded. This matter is ripe for judgment. For the
reasons stated below, Defendants' Amended Motion to Dismiss will be DENIED.
I. STANDARD FOR A MOTION TO DISMISS
"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.
1At all times relevant to this action Defendants were employees of the Hampton Police
Department in Hampton, Virginia.
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated ...." U.S. Const, amend. IV.
"No person shall ... be deprived of life, liberty, or property without due process of
law
" U.S. Const, amend. V.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual allegations, however, and "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." Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009).
The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.'" Bell Ail. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555 (citations
omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the
speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570,
rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 556).
Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the
plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft
Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir.
2002)).
II. LONG'S ALLEGATIONS
On the evening of March 12, 2010, Long was shot in the leg. Defendants Beres and
Nemetz approached Long in the hospital emergency room at approximately 12:34 am on March
13, 2010. Defendants Beres and Nemetz "made everybody get out [of Long's hospital room]."
(Compl. 5.)4 Defendant Alexander then entered the room and asked Long, "'How did [you] get
shot?'" Long "told [Alexander] about the shooting being a drive-by and stated what happened.
[Long] was shot in the left knee which was clearly not a self-inflicted wound." (Id)
Defendant Beres asked Long to allow the officers to test Long's hands for gunpowder
residue. Long refused, stating: "I am a victim, not a suspect." (Id.) Defendant Beres told Long
that he "had to take the test because the evidence could be destroyed." (Id.) Long replied, "'No,
I do not want to take the test.'"
(Id)
"[Detective] Beres looked at [Officer] Nemetz and
[Officer] Alexander which in return physically held both of [Long's] arms out while [Detective]
Beres swabbed [Long's] hands." (Id) Long claims that "[a]s a result... I was falsely arrested
and detained on 3/13/10 with the charges ultimately nolle prosequi on 3/18/10 (5 days later)."
(Id. at 5a.)5 Based onthe foregoing, Long makes the following claims:
4 The Court has corrected capitalization in quotations of Long's submissions. Further,
Long's Complaint includes an unnumbered page between pages five and six. The Court will
refer to this page as "5a."
5 Long was neither in custody nor under arrest while at the hospital. Upon Long's
discharge from the hospital, at approximately 4:00 am on March 13, 2010, he went voluntarily to
the police station with Defendant Nemetz. (PL's Mem. Opp'n Defs.' Am. Mot. Dismiss 4.)
Police did not arrest Long until approximately 1:00 pm on March 13, 2010, after officers
completed a search of his residence. (Id. at 5.)
3
Claim One
Defendants violated Long's Fourth Amendment right to freedom
from unlawful search and seizure by restraining Long and
swabbing his hands for gunpowder residue without his consent.
Claim Two
Defendants violated Long's Fifth Amendment right to freedom
from deprivation of liberty without due process of law by
restraining Long and swabbing his hands for gunpowder residue
without his consent.
(Id. at 5-5a.)6 Long seeks money damages in the amount of $150,000 and "for [Defendants] to
take a class on police brutality." (Id. at 6.)
III.
A.
ANALYSIS
Claim One
1.
Qualified Immunity
"Qualified immunity shields government officials performing discretionary functions
from personal-capacity liability for civil damages under § 1983, insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known." Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006)
(internal quotation marks omitted) (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)).
Officials will receive immunity unless the § 1983 claim satisfies a two-prong test: (1) the
allegations, if true, substantiate a violation of a federal statutory or constitutional right, and (2)
the right was "clearly established" such that "a reasonable person would have known" his acts or
omissions violated that right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Pearson v.
Callahan, 555 U.S. 223, 236-37 (2009) (setting up this two-pronged framework).
6The Court finds that Long, in his Complaint, does not plead a claim for excessive force.
See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (holding that courts are
not advocates and are not required to address claims not squarely presented to them).
4
Defendants assert that Long's allegations, taken as true, do not state a violation of his
Fourth Amendment rights because Defendants' actions fall within the exigent circumstances
exception. (Defs.' Am. Br. Supp. Am. Mot. Dismiss 7.)7 Defendants direct this Court to the
holdings of UnitedStates v. Simmons, No. 5:07CR40, 2008 WL 919547 (N.D. W. Va. Apr. 3,
2008), and United States v. Pettiford, 295 F. Supp. 2d 552 (D. Md. 2003), in support of this
contention. However, Courts, including the Courts in Simmons and Pettiford, recognize that, to
apply the exigent circumstances exception, both exigent circumstances andprobable cause must
exist. Simmons, 2008 WL 919547, at *1 ("One such exception to the warrant requirement exists
when there is probable cause to search and officers reasonably believe that evidence may be
destroyed before a search warrant can be obtained." (citing Chimel v. California, 395 U.S. 752,
763 (1969))); Pettiford, 295 F. Supp. 2d at 560 ("The police may conduct a warrantless search if
it is supported by probable cause and exigent circumstances exist." (citing Cupp v. Murphy, 412
U.S. 291, 293 (1973); UnitedStates v. Jones, No. 98-4624, 2000 WL 690182, at *3-4 (4th Cir.
May 26,2000))).
The allegations in Long's complaint contain no probable cause for Defendants'
involuntary gunpowder residue swab, see Compl. 5-5a., and it goes without saying that the
requirement of probable cause for a search in the absence of a warrant is "clearly established" in
law. See, e.g., Whren v. UnitedStates, 517 U.S. 806, 809-810 (holding that a search or seizure,
as a general matter, must be supported by probable cause in order to meet the Fourth
Amendment's reasonableness standard). Without probable cause, no amount of exigent
circumstances can save Defendants' involuntary, warrantless search of Long.
Because
«7
Because Defendants failed to number the pages of this document, the Court will refer to
it using the page numbers assigned by the CM/ECF system.
5
Defendants cannot show that probable cause exists on the face of the Complaint, they are not
entitled to qualified immunity at this juncture with respect to this claim.
2.
Heck v. Humphrey, 512 U.S. 477 (1994)
In Heck the Supreme Court emphasized that civil tort actions are "not appropriate
vehicles for challenging the validity of outstanding criminal judgments." Heck, 512 U.S. at 486.
The Supreme Court then held that:
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254.
Id. at 486-87 (internal footnote omitted). The Supreme Court then required that "when a state
prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the validity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated." Id. at 487. "Heck's holding precludes a prisoner from
a collateral attack that may result in two inconsistent results—for example, a valid criminal
conviction and a valid civil judgment under § 1983 for monetary damages due to
unconstitutional conviction or imprisonment." Wilson v. Johnson, 535 F.3d 262, 265 (4th Cir.
2008).
Defendants argue that "[i]t would appear that [Long's] claim pursuant to 42 U.S.C.
§ 1983 would by implication imply that [Long's] guilty plea and subsequent conviction ... is
invalid." (Defs.' Am. Br. Supp. Am. Mot. Dismiss 8.) Thus, Defendants assert, Long's
6
challenge is barred by Heck v. Humphrey. (Id. at 8-9.) Defendants ask the Court to consider its
own records, but fail to articulate how these records show that Long's current claim necessarily
implies the unlawfulness of his Federal conviction.
The Court's records do show that, while executing a search warrant of Long's residence
on March 13, 2010, law enforcement officers found crack cocaine and a semi-automatic rifle.
United States v. Long, No. 4:10cr00067-RBS-TEM, Docket No. 14 ("Statement of Facts"), at 12 (E.D. Va. filed July 27, 2010). Long subsequently pled guilty in the Newport News Division
of this Court to possession with intent to distribute cocaine base, possession with intent to
distribute cocaine, and possession of a firearm in furtherance of a drug trafficking crime. Long,
No.4:10cr00067-RBS-TEM (E.D. Va. Nov. 12, 2010). The Court sentenced Long to 180
months of imprisonment. Id.
Had Long's case gone to trial, an "associate" of Long was
prepared to testify that, on the evening prior to the search (March 12, 2010), Long arranged to
deliver crack cocaine to a potential buyer. (Statement of Facts 1.) This transaction "was
interruptedwhen the intended buyer attempted to rob [Long] at gunpoint." (Id.)
The Complaint does not indicate that police used the results of the gunpowder residue test
to obtain the search warrant for Long's residence.8 Indeed, nothing before the Court indicates
that, absent the gunpowder residue test, law enforcement officers would not have been able to
obtain the search warrant for Long's residence or his eventual conviction. Defendants fail to
show that Long's current allegations necessarily imply the unlawfulness of his federal
Q
Long claims that police searched his residence only after they obtained witness
statements connecting him to the shooting. (PL's Mem. Opp'n Defs.' Am. Mot. Dismiss 5, 7.)
Long claims that these witness statements, not the gunpowder residue test results, "ultimately
lead [sic] to the search of [Long's] residence, and his arrest." (Id. at 7.) Long also states that he
"in no way would imply that his federal conviction of which he plead [sic] guilty . . . was some
how [sic] invalid." (Id. at 6.)
7
conviction. Thus, Defendants fail to show, at this juncture, that the Heck v. Humphrey bar
applies.
Accordingly, and because Defendants fail to show that probable cause for the
gunpowder residue test exists on the face of the Complaint, Defendants' Amended Motion to
Dismiss, as it relates to Claim One, will be DENIED.
B.
Claim Two
In Claim Two, Long asserts that, by their actions described above, Defendants violated
his "5th Amendment, not to deprive [him] of liberty without due process of the law."
(Compl. 5a.) Defendants have not addressed Long's claim that he was deprived of liberty
without due process. Indeed, Defendants have pointed only to authority concerning Long's
Fourth Amendment claim. Accordingly, Defendants' Amended Motion to Dismiss, as it relates
to Claim Two, will be DENIED.
IV.
CONCLUSION
Defendants' Amended Motion to Dismiss (Docket No. 25) will be DENIED.
Notwithstanding this ruling, the Court takes no position on the ultimate merits of the plaintiffs
claim. It may be the case, upon full examination of the record, that the defense of qualified
immunity will apply or that the claim will be barred by Heck v. Humphrey. The parties shall
have 45 days from this Order to file a motion for summary judgment, supported by affidavit or
otherwise. If no such motion is filed, the Court shall set the case for trial.
An appropriate Order will accompany this Memorandum Opinion.
Date: l/BljZRichmond, Virginia
1st
John A. Gibney,/r.
United States E)|strifct Judge
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