Hessing v. Brunelle

Filing 47

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 05/11/2016. Copy mailed to Hessing.(tjoh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

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MAY 1 1 2016

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CLERK. U S I.'i- Tr'iC.T COURT
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WYATT HESSING,

Plaintiff,
Civil Action No. 3:13CV487-HEH

V.

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P. BRUNELLE,
Defendant.

MEMORANDUM OPINION

(Denying Motion to Dismiss)

Wyatt Hessing, a Virginia prisoner, proceeding pro se, filed this action. The
matter is before the Court on P. Brunelle's Motion to Dismiss. For the reasons set forth

below, the Motion to Dismiss (ECF No. 45) will be denied.
L PERTINENT BACKGROUND

By Memorandum Order entered on May 20, 2015, the Court directed Wyatt
Hessing to file a particularized complaint within fifteen (15) days of the date of entry
thereof More than fifteen (15) days elapsed and Hessing failed to file a particularized
complaint. Therefore, on June 16,2015, Defendant Brunelle moved to dismiss because
Hessing failed to comply with the May 20, 2015 Order.

On July 9, 2015, Hessing filed a Motion for the Appointment of Counsel and a

Motion to Amend his Complaint. In his Motion to Amend, Hessing stated that he was
delayed in complying with the Court's order to particularize his complaint because of the
lack of availability of a notary at his institution. (ECF No. 42, at 3.) In his Motion to
Amend, Hessing also appeared to attempt to comply with the Court's directive to file a

particularized complaint. Hessing, however, largely failed to comply with the specific
directions of the Court for submitting a particularized complaint. For example, Hessing
failed to number his factual paragraphs, failed to include a prayer for relief, and failed to

concisely articulate his theories as to how Defendant Brunelle violated his constitutional
rights. Accordingly, by Memorandum Order entered on October 7, 2015, the Court again
directed Hessing to file a particularized complaint in accordance with the Court's

instructions within fourteen (14) days ofthe date ofentry thereof (ECF No. 43, at 2.)'
Additionally, the Court denied without prejudice Defendant Brunelle's Motion to
Dismiss. {Id.)

On or about October 18,2015, Hessing executed his new Particularized Complaint
("Particularized Complaint," ECF No. 44). The Particularized Complaint was received in
the prison mailroom on October 23, 2015. {Id. at 7.) On October 26, 2015, the Court
received the Particularized Complaint. On November 3, 2015, Defendant Brunelle filed
another Motion to Dismiss. (ECF No. 45.)
11. STANDARD OF REVIEW

"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 ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 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.

' The Court utilizes the pagination assigned to the Particularized Complaint by the CM/ECF
docketing system.

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, 556 U.S. 662, 679 (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 Atl Corp.

V. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conleyv.
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. (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, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). 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); see also lodice v. United States, 289 F.3d 270, 281 (4th

Cir. 2002)). Lastly, while the Court liberally construespro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua

sponte developing statutory and constitutional claims the inmate failed to clearly raise on
the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997)

(Luttig, J., concurring); see also Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
III.

SUMMARY OF ALLEGATIONS AND CLAIMS

Hessing makes the following allegations:
On February 26, 2013, Prince William County Police appeared at the
Inns of Virginia hotel in Woodbridge, VA. Prior to the arrival of any law
enforcement, police dispatch contacted the Plaintiff (Wyatt Hessing) and
his girlfriend, Katelyn Kilpatrick, by directly calling the room that was
rented. Ms. Kilpatrick was questioned by dispatch as to whether they had
required the assistance, and she informed the dispatcher that neither called
911 for help, nor required assistance.
Several minutes later the police arrived at the door. Ms. Kilpatrick

slightly opened the door upon hearing that law enforcement was outside.
Immediately after the door was opened, and without any evidence of
criminal activity, request by the occupants for assistance, or other legally
justifiable reason, officers entered the room and conducted a search.
Officer [Brunelle] then search[ed] through the plaintiffs phone, messages,
and data, and then made the humiliating comments pertaining to my
biracial children. "Look at these nigglets." Upon the search, they [found]
several pills that belonged to Ms. Kilpatrick. At that time, they placed me
under arrest and charged me with possession with intent to manufacture and
distribute. I was then placed in Officer Godowokis['s] cruiser. I shortly
realized that I had another phone in my possession and I then posted several
posts of Facebook. Officer Brunelle ripped the door open, and without any
warning or request viciously and maliciously attacked me, punching me in
the mouth and nose. I requested for medical attention and pictures of my
injuries and Officer Brunelle replied, saying, "Guess what nigger? You just

bought yourself another charge." [Officer Brunelle] refused me medical
attention.

(Part. Compl. 1-2 (punctuation, spelling, and capitalization corrected).)
Based on the foregoing allegations, Hessing makes the following claims for
relief:

Claim One

Defendant Brunelle violated Hessing's rights under the

Fourth Amendment^ when he searched Hessing's hotel
room and phone. (Part. Compl. 2-3.)
Claim Two

Defendant Brunelle used excessive force against
Hessing's person when he punched Hessing in the

mouth and nose.^ {Id. at 3.)
Claim Three

Defendant Brunelle's statements, "'Guess what

nigger? You just bought yourself another charge,"' {id.
at 2), suggest that Hessing "was targeted and
discriminated upon because of [his] race and ethnic
background." (/is?. at3.)

Hessing demands monetary damages and injunctive relief
IV. BRUNELLE'S MOTION TO DISMISS

Brunelle advances three grounds as to why the Particularized Complaint should be

dismissed: (1) Hessing failed to obey the Court's order to file a timely particularized

^"The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause

" U.S. Const, amend IV.

^Hessing suggests that Defendant Brunelle's assault violated his rights under the Eighth
Amendment, However, because it appears that Hessing was a pretrial detainee at the time the
assault occurred, the Due Process Clause of the Fourteenth Amendment govems this claim. See
Robles V. Prince George's Cty, Md., 302 F.3d 262, 269 (4th Cir. 2002) (citation omitted).

complaint; (2) the Richmond Division is not the proper venue for the present action; and,
(3) the Particularized Complaint fails to state a claim for relief.
A. Failure to Comply with a Court's Order
Brunelle seeks dismissal under Federal Rule of Civil Procedure 41(b) for

Hessing's alleged failure to comply with the Court's Order that Hessing particularize his

complaint. The United States Court of Appeals for the Fourth Circuit has cautioned that
dismissal with prejudice under Rule 41(b) is appropriate only for "clear record of delay or
contumacious conduct by the plaintiff." Dove v. CODESCO, 569 F.2d 807, 810 (4th Cir.

1978) (quoting Durham v. Fla. E. Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967))."*
Here, Brunelle argues for dismissal under Rule 41(b) because, inter alia, the
Particularized Complaint was not received by the Court until a few days after the
established deadline and failed to completely comply with the Court's directions for

filing a Particularized Complaint. While the Court does not condone Hessing's failure to

abide by the exact letter of the Court's instructions, his actions hardly are indicative of a
"clear record of delay or contumacious conduct." Id. Hessing's Particularized Complaint
was filed within a few days of the Court's deadline. The current Particularized

Complaint is a significant improvement over Hessing's prior response to the directive to
particularize his complaint. In his prior response, Hessing failed to articulate how he

^The Fourth Circuit requires the trial court to consider the following "four factors before
dismissing a case for failure to prosecute: (1) the plaintiffs degree of personal responsibility; (2)
the amount of prejudice caused the defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic
than dismissal." Hillig v. C.I.R., 916 F.2d 171, 174 (4th Cir. 1990) (citing Herbert v. Saffell, 877
F.2d 267, 270 (4th Cir. 1989)).
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believed Brunelle had violated his rights. The current Particularized Complaint links the
facts of the Particularized Complaint with Hessing's theory as to how Brunelle's actions
amounted to a violation of Hessing's rights. Accordingly, the Court denies Brunelle's

request to dismiss the action pursuant to Rule 41(b).
B. Improper Venue

Next, Brunelle requests that the Court dismiss the action for improper venue.
Brunelle notes that he resides in Prince William County and the events described in the

Particularized Complaint occurred in Prince William County. Brunelle contends that the
proper venue for the present action is the Alexandria Division and the Court should
dismiss the action for improper venue. In the Eastern District of Virginia, all prisoner
cases are assigned on a rotating basis to all of the District Judges within the District. The
case was assigned to the undersigned in the Richmond Division pursuant to that system.
Accordingly, the Court will not dismiss the action for failure to file in the proper venue.
Should a trial or evidentiary hearing become necessary, any party may move to have the

hearing conducted in the appropriate division.
C. Failure to State a Claim

Finally, Brunelle asks the Court dismiss the Particularized Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). Brunelle contends that the Particularized

Complaint "continues to be defective and still does not state a claim upon which relief
can be granted." (Mem. Supp. Mot. Dismiss 5.) The foregoing argument is unsupported

by any substantive analysis of the allegations of the Particularized Complaint and the

relevant case law except for a single cite to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). Given these significant shortcomings of Brunelle's briefing and the plausible
claims for relief set forth in the Particularized Complaint, the Court declines to dismiss

the Particularized Complaint for failure to state a claim. See E.D. Va. Loc. Civ. R. 7(F)

("All motions, unless otherwise directed by the Court and except as noted herein below in
subsection 7(F)(2), shall be accompanied by a written brief setting forth a concise
statement of the facts and supporting reasons, along with a citation of the authorities upon
which the movant relies.").

The Motion to Dismiss (ECF No. 45) will be DENIED. Any party wishing to file

a motion for summary judgment must do so within sixty (60) days of the date of entry
hereof

An appropriate Order shall accompany this Memorandum Opinion.

/s/
HENRY E. HUDSON

Date:^l>IUi4
Richmond, Virginia

UNITED STATES DISTRICT JUDGE