Rashad v. Jenkins et al

Filing 26

MEMORANDUM OPINION. Read for details. Signed by District Judge Robert E. Payne on 03/03/2016. Copy sent to Plaintiff. (ccol, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

JAMAL A.

RASHAD,

Plaintiff,
V.

Civil Action No.

3:15cv655

SCOTT JENKINS,
et al.,
Defendants.

MEMORANDUM OPINION

This

MOTION

TO

AND

(Docket

10),

[sic]

LOWERY'S

(Docket No.

be

TO DISMISS
FLANDERS'

DEFENDANTS

23) .

moot

as

plaintiff's

No.

8),

MOTION
AND

TO

NEELY'S

as

MOTION

assert

TO

13),

(Docket

SUPPLEMENTAL

set

19)

grounds

IN

MOTIONS

TO

and 12(b)(6)

No.

MOTION

forth below,

seek

OR

JOINT

WHEELER'S

DEFENDANTS GAIL CROOKS'

dismissal

and they will

STRIKE,

DEFENDANT

RULE 12(b)(1)

DISMISS

they

other

(Docket No.

on

DEFENDANTS'

(Docket No.

insofar

they

Court

DEFENDANTS'

jurisdiction,

PROTECTIVE ORDER

the

For the reasons

granted

subject matter
as

before

DISMISS

JAYME

will

is

(Docket No.

DISMISS

MOTION

matter

16)

TO

and

DISMISS

those motions

for

lack

of

otherwise be denied

for

THE

will be denied.

dismissal.

The

ALTERNATIVE,

FOR

BACKGROUND

In

his

Complaint,

Plaintiff

Jamal

A.

Rashad

("Rashad")

asserts a variety of claims against nine government employees in
their

official

capacities.

following scenario,
Rashad's Complaint

On

or

attorney,

("Jenkins"),
Sheriff
affair

Deputy
with

the

complaint

May

5,

2014,

written

Charles

Rashad's

case

to

arise

out

of

the

1).

Rashad,

complaint

to

Wheeler

wife.

officer.
was

endangered Rashad's

African-American
Scott

Virginia,

("Wheeler")

Jenkins

then

had

by

to Armel,

an

assigned

alleging

Rashad

that

Jenkins

stating that
adulterous
the

Deputy Sheriff Tyler Armel

assigned

Jenkins

an

Sheriff

Sheriff of Culpepper County,

internal affairs
After

(Docket No.

a

claims

as recounted from paragraphs 1 through 74 of

about

made

Those

case

to

("Armel").

supplemented

Wheeler

also

seven-year-old son by placing Rashad's

his

had
son

on his lap behind the wheel of his moving police cruiser.
For

reasons

Complaint,

Wheeler

each

lack

of

apparent

on or about October 19,

admitted

with

neither

other.
context,

"in

open

court"

Additionally,
Wheeler

nor

2015,

to

explained

the

both Rashad's wife and

having

sexual

notwithstanding

acknowledged

in

that

the
he

intercourse
Complaint's

admitted

"to

placing Plaintiff's then 7-year old son behind the wheel of his
police cruiser moving on a public street" to Armel.
these

assertions

to

claim

that

Wheeler

violated

Rashad uses
Virginia

law

criminalizing

adultery,

criminalizing

child

restricting use of county-owned vehicles,
was

in

violation

of

the

Law

endangerment,

and thus that Wheeler

Enforcement

Code

of

Ethics.

Sometime more than five months after Rashad filed his

with

Jenkins,

the

Internal

Affairs

and

Officer

issued

complaint

a

decision

finding that Rashad's claims were unfounded.
Rashad also made a
of

child endangerment

Social

Services

Services
which

complaint,

to

the

("DSS"),

although i t is unclear when,

Spotsylvania County Department

which

administers

Child

Protective

("CPS"). The gist of that complaint was the incident in

Wheeler

allowed

moving police

car.

Rashad's

DSS

son

to

employee,

ride

Jayme

in

his

Flanders

lap

in

that

Flanders

Spotsylvania

County

Spotsylvania

County

did

not

report

Commonwealth's
Sheriff's

the

Office

Rashad

complaint

Attorney's
as

the

("Flanders"),

received the complaint and commenced a family assessment.
asserts

of

Office

required

to

the

or

the

by

law.

Flanders also found Rashad's complaint to be unfounded.
Sometime after Flanders decided that Rashad's complaint was
unfounded,

Sheriff's
was

also

police

Rashad

Office
based

cruiser

December

4,

Demoranville,

made

about

on

the

with

2015,

another

the

child

earlier

Rashad's

that

complaint

case

was

{"Demoranville")

the

endangerment.

claim

son

to

that

on

had

complaint
driven

a

lap.

assigned
and

This

Wheeler

his

Spotsylvania

On

or

about

to

Detective

Twyla

she

commenced

an

investigation.
child

and

with

incident.

fully

Rashad

Wheeler

Further,

to

theorizes

colleague,
previously

Rashad

had

("Harris")
officers

on

by

by

Spotsylvania

virtue

under

of

his

his

Rashad

made

a

not

Demoranville

Deputy

and

decided
Rashad

want

to

Wheeler

DSS

embarrass

after

complaint

County

Sheriff

perform

Freedom

driving

with

responsibility

command

the

recommendation.

her

Flanders

as

unfounded.

Roger

L.

Harris

"for assuring

their

competently and in accordance with law."
Lastly,

before

("Lowery")

Lowery's

Rashad's

with

alleged

conspired

Lowery

did

spoke

the

that,

arresting

dismissed

implicates

admitted

she

Demoranville

Flanders,

Demoranville

asserts

Matthew

Wheeler

that

both

Wheeler,

Attorney

arrest

that

and

Rashad

investigated

Commonwealth's
not

claims

duties

that

honestly,

(Compl. ^ 47).

of

Information

Act

request

with the Spotsylvania County's Commonwealth Attorney, William F.
Neely

("Neely"),

November
email.

21,

Rashad

notified

the

endangerment
Lowery

had

2015,

been

was

Rashad

claims

that

referred
and

complaint.
lied

to

investigated by
determined

to

In

be

first

Lowery.

subsequent
by

said

that

Office
emails

stating

Spotsylvania
unfounded.

On

corresponded

Attorney's

Rashad
the

to

Lowery

Lowery

Commonwealth's

allegedly

had been

which

that

by
DSS

of
the
the

Sheriff's

Rashad

or

about
way

had

his

of
not

child

same

day,

complaint
Office

concludes

and
that

Lowery lied because Demoranville was purportedly not assigned to

the case until December 4,

2015.

Lowery advised Demoranville not

allege

any

facts

to

support

Rashad further

speculates that

to arrest Wheeler but

the

assertion.

does

did

Lowery

not

not

prosecute Wheeler.

Simply

put,

complaints

were

unfounded.

Rashad's

Thus,

argument

mishandled

and

is

that

his

incorrectly

in Rashad's view,

repeated

resolved

as

the Defendants conspired to

conceal Wheeler's wrongdoing.

Rashad's

claims

are

not

paragraph in his Complaint.

the

handling

and

Armel,

of

[Rashad's]

[Rashad]

was

delineated

In paragraph 28,

complaints
denied

due

discriminated against because of his
conspiracy

and

malfeasance

of

by

by

count,

by

he asserts that "In

[D]efendants

process

of

race and was

defendants

but

Jenkins

law,

was

subjected to

Jenkins,

Armel,

and

Wheeler."

In
CPS's

paragraph
failure

authorities

44,

to

upon

Rashad

follow

receipt

asserts

the

of

abuse/endangerment of his child,

that

law

and

[Rashad's]

[Rashad]

"[a]s
notice

a

result
the

complaint

of

proper

of

the

was denied due process

of law among other damages, and the minor child was subjected to
further

abuse by

Defendant

Defendants Flanders,

Det.

Wheeler."

Paragraph

Demoranville,

45

alleges

that

and DCA Lowery conspired

to achieve the alleged foregoing deprivation.

In

paragraph

59,

Rashad

[D]efendants

Demoranville,

malfeasance,

[PJlaintiff

discriminated against

claims

Lowery
was

on

that,

and

denied

the basis

"as

Flanders
due

of

a

conspiracy

process

his

result

race

of

law,

of
and
was

and otherwise

denied his constitutional rights."

Lastly,

in

and

Lowery

Neely

paragraph

71,

Rashad

discriminated

claims

against

that

"Defendants

Plaintiff

because

of

Plaintiff's race and denied him due process to fair procedures"
because

Lowery

allegedly

advised

Demoranville

not

to

arrest

Wheeler before the investigation was complete.

Plaintiff prays
relief.

All

for

Defendants

pursuant to Fed.

R.

monetary,

injunctive,

have

timely

P.

12(b)(6),

Civ.

filed

and declaratory

Motions

to

Dismiss

claiming that Rashad has

failed to state any claim upon which relief can be granted, and
Fed.

R.

Civ.

(Docket Nos.

8,

P.
10,

12(b)(1),
13,

16,

claiming
19,

a

lack

of

jurisdiction.

23).

LEGAL STANDARDS

A.

Rashad As A Pro Se Litigant

As

a

threshold

matter,

pro

entitled to have their pleadings
See,

e.g.,

omitted);

Erickson v.
Gordon v.

Pardus,

Leeke,

574

se

litigants

given a

551 U.S.

89,

F.2d 1147,

are

usually

liberal construction.
94
1151

(2007)

(citations

(4th Cir.

1978).

That rule applies to pro se litigants only because they do not
have the assistance of a lawyer in presenting their claims.
Rashad has

Hence,

asserted in his

Complaint that he

is a

lawyer.

his pleadings are not entitled to the lenient treatment

accorded

litigants

who

are

proceeding

without

the

aid

of

a

for

Fourth Circuit

lawyer.

The

has

not

United States Court of Appeals

addressed that point

situation,

the

United

States

District of Virginia held:
attorney,
state's

a

law

bar.

school

As

directly.

However,

District

Court

in a
the

for

similar
Eastern

"Plaintiff represents that she is an

graduate,

such,

the

she

is

and
not

a

member

entitled

a

to

neighboring
the

liberal

construction of pleadings ordinarily afforded pro se litigants."
Gordon
(E.D.

v.

Gutierrez,

Va.

2006}.

No.

Other

I:06cv861,

courts

have

2006
drawn

WL 3760134,
a

pro se attorneys and other pro se parties.
Columbia

2008)
by

Gas

Transmission

Corp.,

denying

special

attorneys);

Smith v.

(" While we

are

F.3d

See,

discretion

se

practicing

to

258 F.3d 1167,

licensed

attorney")(citation

Co.,

F.3d 62,

n.4

Andrews v.

its

generally obliged to

82

between

633

pro
1174

omitted);

(2d Cir.

Holtz

2001)

(6th

(10th Cir.

construe pro

liberally,..., we decline to do so here because

258

e.g.,

n.l

618,

consideration
Plati,

distinction

*1

court did not abuse

(finding the district

544

at

2001)

se pleadings

[plaintiff]

v.

Cir.

is a

Rockefeller

&

("[Pjro se attorneys

such

as

[plaintiff]

consideration

which

parties.")(internal
Foreman, Oswald,

"Ordinarily,

typically
the

courts

quotations

and Hahn,

cannot

claim

customarily

omitted);

grant

Godlove

903 F.2d 1145,

the

1148

special

to

v.

pro

se

Bamberger,

(7th Cir. 1990)

(

we treat the efforts of pro se applicants gently,

but a pro se lawyer is entitled to no special consideration.");
Harbulak

v.

Suffolk

(finding

that

pro

Cty.,

se

654

F.2d

was

attorney

194,

198

not

(2d

Cir.

entitled

to

1981)

special

consideration because plaintiff was a "practicing lawyer who had
the means and the knowledge,

the

knowledge,

to

recognize"

reasonable); Olivares

Cir.

1977)

or at least the ability to obtain

v.

("[Plaintiff]

whether

Martin, 555

proceeds

F.2d

pro

his
1192,

se

in

claims
1194

his

were

n.l

(5th

appeal.

We

cannot accord him the advantage of the liberal construction of

his

complaint normally given pro se litigants because he

licensed
reasons,

attorney.")
Rashad

(citation

will

not

be

omitted).

afforded

the

For

the

liberal

is a

foregoing

and

lenient

treatment extended to non-lawyers who are acting pro se.^

^ Even if Rashad were to be treated as a non-lawyer (which will
not be the case) ,
not

mean

that

the requirement of liberal construction "does

the

court

can

ignore

a

clear

failure

in

the

pleading to allege facts which set forth a claim cognizable in a
federal

district

court."

Skelton

v.

EPA,

No.

3:09-1429-MBS,

2009 WL 2191981, at *2 (D.S.C. July 16, 2009) (citing Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990)).
Finally,
the basic pleading standards set by Bell Atl. v. Twombly, 550
U.S.

544

(2007)

and Ashcroft v.

Iqbal,
8

556 U.S.

662

(2009)

that

B.

Fed.

R.

Civ.

P.

12(b)(1)

A party may file
matter

a motion to dismiss

jurisdiction under Fed.

R.

Civ.

for lack of subject

P.

12(b)(1).

If a

court

finds that it does not have subject matter jurisdiction over the
case or controversy,
H Corp.,

bears

546

the

U.S.

burden

500,

of

proper. Warren v.
Cir.

it must dismiss the action. Arbaugh v.
514

(2006).

establishing

Of

that

Sessoms & Rogers,

course,

federal

P.A.,

the

Y &

plaintiff

jurisdiction

676 F.3d 365,

371

is

(4th

2012) .

Challenges
two ways.

to

First,

a

subject

matter

jurisdiction may be

made

in

facial challenge to jurisdiction may be made

by arguing that the complaint does not allege facts that permit
the exercise of
V.

United

type
facts

of

federal

States,

challenge

alleged

in

585

F.3d

is

can

be

assertion

of

subject

(quoting Adams v.

that event,

187,

raised,

the

challenge

subject matter

made

the

{4th

court

complaint

are

under

Cir.

must

theory

matter

Bain,

192

jurisdiction.

the

true.

jurisdiction

697 F.2d 1213,

1219

2009).

assume
Id.

that
is

See Kerns
If

that

that

Second,

the

all
the

complaint's

not

(4th Cir.

true.
1982)).

Id.
In

a court may consider evidence outside the pleadings.

Id.

foreclose conclusory,
se litigants.

factually unsupported claims

apply to pro

C.

Fed. R.

All
Fed.

R.

relief

Civ.

Civ.

P.

can be

relief

complaint

Corp.

facial

content

that

the

.

.

drawn

§

Co.,

LLC,

Apr.

11,

.

court

Rule

222

to

facts

to

570

the

the

678

(2009)

to

state

a

Robinson v.
2009)

(quoting

(2007)).

plaintiff

draw

motion
to

face.'"

for

662,

12(b)(6)

(4th Cir.

544,

the

liable

along

No.

(3d

for

courts

formulaic

and to conduct a

any

"A claim

pleads

reasonable

factual
inference

misconduct

alleged."

(citing Twombly,

conclusions

"need

legal

ed.

and

550

to

reject

recitation

of

the

pleaded

Old

WL 1415095,

at

*4

Rule

made

of

the

Dominion
(E.D.

Va.

that

the

clear

12(b)(6)

conclusory

be

Federal Practice
v.

also

can

conclusory

Chamblee

Iqbal

evaluating

that

accept

Miller,

1998);
2014

not

effects

Wright & Arthur R.

3:13cv82C,

approach

mere

but

the

"Twombly

requires

with

therefrom,"

1357

2014) .

to

when

encompassing

Sec.

amount

pursuant

A court "will accept the pleader's description of

Procedure

dismiss

Dismiss

'enough

550 U.S.

556 U.S.

Charles A.

analytical

to

plausible on its

is

happened

allegations

a

"provide

Twombly,

Iqbal,

survive

551 F.3d 218,

allows

at 556).

facts."

must

defendant

the

reasonably

and

v.

To

is

Motions

for failure to state a claim upon which

plausibility

that

Ashcroft v.

what

that

Honda Motor Co.,

Bell Atl.

filed

granted.

claim to

U.S.

have

12(b)(6)

a

has

12(b)(6)

Defendants

dismiss,

Am.

P.

motions

allegations

elements

of

a

to
that

claim

context-specific analysis to determine whether
10

the

well-pleaded

entitlement

to

considering

a

factual

relief."

motion

allegations
Chamblee,

to dismiss,

plausibly

2014

the

WL

1415095,

572 F.3d 176,

180

at

an

*4.

In

court may "properly take

judicial notice of matters of public record."
Cty. Mem'l Hosp.,

suggest

(4th Cir.

Philips v.

Pitt

2009).

NAMED COMMONWEALTH'S ATTORNEYS NOW SEPARATED FROM OFFICE

Defendants Neely and Lowery in their Supplemental Motion to
Dismiss

(Docket No.

this matter

for

the

23)

argue that they should be dismissed from

additional

reason that

neither works

Spotsylvania County Commonwealth's Attorney's Office
and

24) .

were

sued

only

in

their

official

capacities.

of

the

named

official

will

result

the

any longer
(Docket

"In an official-capacity action in federal court,

replacement

for

in

No.

death or
automatic

substitution of the official's successor in office." Kentucky v.

Graham,

473

25(d)(1)).

U.S.
For

LOWERY'S AND

23).

159,

this

NEELY'S

However,

166

n.ll

reason,

(1985) (citing

the

Court

SUPPLEMENTAL MOTION

because

Fed.

R.

Civ.

will
TO

P.

Fed.

R.

grant

DISMISS

Civ.

P.

DEFENDANTS
(docket

25(d)(1)

No.

requires

substitution of the new officials,

Rashad's claims against Neely

and

against

Lowery

will

other grounds.

be

dismissed

as

their

See infra.

JURISDICTION:

SOVEREIGN IMMUNITY

11

successors

on

All motions to dismiss

for subject matter jurisdiction can

be granted for the simple reason that Rashad has not responded
to

them

in

any

way.

For

that

reason

alone,

Rashad

has

not

carried his burden to establish subject matter jurisdiction,^
But

that

would

leave

the

issue

of

jurisdiction open

so

it

is

preferable to address that issue directly.
Rashad

capacity,

has

sued

seeking

each

monetary

Defendant

relief

in

in

his

the

or

form

her

of

official

compensatory

and punitive damages, injunctive relief, and declaratory relief.^
(Docket

No.

claims

for

12(b)(1)

1

78-79) .

monetary

on

Eleventh

f

the

Defendants

relief

basis

Amendment

All

that

of

the

seek

pursuant
such

United

dismissal

to Fed.

R.

are

barred

claims
States

of

such

Civ.
by

Constitution

P.
the

because

those claims are against the Commonwealth.
The
III

of

limits

jurisdiction
the

the

of

federal

courts

United States Constitution.

Article

III

jurisdiction

^ The only pleading that

of

Rashad has

is
"The

the

filed

defined

by

Eleventh

federal

since

Article

Amendment

courts

filing

to

his

Complaint is
ALTERNATIVE,

a document entitled MOTION TO STRIKE, OR IN THE
FOR
PROTECTIVE
ORDER
(Docket
No.
19).
That
pleading was filed after the various motions to dismiss, inter
alia, for lack of jurisdiction were filed (Docket Nos. 8, 10, 13
and 16), but Rashad's pleading does not address subject matter
jurisdiction.

^ Lowery and Neely no longer hold the offices that they held at
the time of the events complained of, and so Rashad's claims
will be treated as against the new officers who assumed Lowery
and Neely's positions and considered below.
12

hear

cases

against states and state officers

their official capacities." Kitchen
183-84

(4th

extend

to

Cir.

2002) .

mere

v.

in

F.3d

179,

UpshaW/ 286

"Eleventh Amendment

political

acting

subdivisions

immunity does

of

a

not

[s]tate such

as

counties or municipalities," but does confer immunity "on an arm
of

the [s]tate." Id. at

official
the

184.

Moreover,

"a

suit

against

in his or her official capacity is not a

official

but

office." Will

V.

rather
Mich.

(1989). As a result,

official

for

against the

is

a

against

of

Dep't

suit
State

Police,

491

relief

"is

[s]tate itself." Id•

liability,

state. Hafer v. Melo,

In

Virginia,

constitutional

official's
U.S.

58,

71

an "official capacity" suit against a state

monetary

personal

state

suit against

the

no

different

In contrast,

a

from

is

502 U.S.

Sheriffs

officers.

not

21,

27

and

a

suit

which seeks to

suit

against

the

Attorneys

are

(1991).

Commonwealth's

See Va.

a

suit against a

state official in his or her individual capacity,

impose

a

Const.

Art.

VII

§

4

("There

shall be elected by the qualified voters of each county and city
a

treasurer,

clerk,...,

a

and

sheriff,
a

at

*5

Brown, No.

(W.D.

other

grounds. Brown

2001);

see

also

attorney

commissioner

15.2-1609; Brown v.
21002,

an

Va.

Feb.

v.

Harris

of

22,

2000),

7

Hayter,
13

the

Commonwealth,

revenue."); Va.

7:99-00275,

Wiita,
v.

for

2000 U.S.
rev'd

Fed.
970

Code

and

Appx.
F.

Supp.

Ann.

Dist.

500

§

LEXIS

remanded

275

a

(4th
(W.D.

on

Cir.
Va.

1997); Blankenship
recons., 931

Chesapeake Corr.
Further,

it

Warren

Supp.

F.

v.

447,

Ctr., 788

and

Commonwealth

of

(E.D.

v.

Va.

"are

entities,

F.

(W.D.

Supp.

Commonwealth's

890,

F.Supp.

11,

2010)

closely
and

No.

893

(E.D.

Sheriffs,

are

2010

Va.

F.
WL

v.

1992).
Sheriff

"arms

of

Supp.

the

at

3655980,

974;
at

*4

(holding that Commonwealth's Attorneys

related

each

974, on

1996); McCoy

Attorneys

3:10cv297,

970,

Va.

Virginia." Blankenship^ 918

Virginia,

Aug.

more

449

918

is well-settled in Virginia that

Departments,

Harbison

Cty.,

are

to

the

state

state

officials

than

to

entitled

their
to

local

Eleventh

/Amendment immunity") .
Because

the

Sheriff

constitutional officers,

adverse

judgments

and

the

Sheriff

official
Unless

or

against

the

capacity
the

is

the

Sheriff

fact

Commonwealth

has

a

or

the

Commonwealth's

suit

Attorney

against

abrogated

in

his

502.

as

to

or

her

the Commonwealth.

or

waived

Eleventh Amendment protection applies. See Harris, 970
at

are

In other words, a suit against

Commonwealth's

in

Attorney

the Commonwealth would be liable to pay

Attorney in an official capacity.
the

Commonwealth's

immunity.

F.

Supp.

There is no evidence of abrogation or consent to suit
the

Wheeler,

claims

Harris,

in

this

case.

Demoranville,

Consequently,

Neely,

14

Lowery,

Jenkins,

Armel,

Neely's successor.

and

Lowery's

successor

are

immune

from

suit

for

claims

for

monetary damages against them in their official capacities.'^
Further,
a

the Virginia Code provides that,

local department

under

the

of

social

supervision

services

and management

for
of

"[t]here shall be

each county or city

a

local

director"

and

"[t]he local director shall act as agent for the Commissioner in

implementing

the

regulation." Va.
Prater,

provisions
Code Ann.

566 F.3d 381,

system

for

the

high

held

level

that

protection

{4th Cir.

of

and

1:14CV00027,

2015

WL

3546066,

Nelson v.

Herrick,

No.

{W.D.

Oct.

2011);

Va.

WL 2950385,

26,

at *1

CIVA297-CV-893,

Accordingly,
and

Flanders

{W.D.

at

Va.

1998 WL 1745365,

to

{W.D.

Va.

the

2010);

the

June

8,

2015);

at

*8-11

2:10CV00017,

Perry v.

Carter,

2010
No.

as employees of the Spotsylvania County DSS,

Crooks

to

Eleventh

Va.

No.

1998).

entitled

{E.D.

of

July 27,

are

at *8

state's

Anderson,

2011 WL 5075649,

No.

have

services

treatment

See Kincaid v.

Mullins,

July 22,

and

Courts

social

due

law's

3:ll-cv-00014,

Doe v.

of

immunity

*2-3

law

see also Fields v.

services).

state

department as an arm of the state.

state

{explaining Virginia's

departments

sovereign

control

and

-333;

2009)

social

local

of

federal

§ 63.2-324,

administering

consistently
enjoy

383

of

Amendment

immunity

for

^ Virginia does permit suits for certain kinds of claims,

but

Rashad does not assert that he has acted so as to proceed in the
manner permitted by Virginia law so the Court need not consider
whether any of Rashad's claims might be redressable thereunder.
15

claims

against

them

in

their

official

capacities

for

monetary

damages.

For the

foregoing

jurisdiction
Defendants,
Of course,

and

Young ,

bar

for

a

those

is

for

lacks

monetary

claims will

123

(1908)

suit

be

subject matter

damages

against

all

dismissed with prejudice.

Defendants

in

their

jurisdiction.

official

See Ex.

Parte

(holding that the Eleventh Amendment

against

Bragg

2001)

a

v.

State

W.

Va.

official
Coal

for

Ass'n,

prospective

248

F.3d

275,

("[T]he Eleventh Amendment does not preclude

individuals

prospective

against

subject matter

relief);

(4th Cir.

private

claims

relief

209 U.S.

not

all

the Court

to the extent that Rashad seeks declaratory judgment

there

injunctive
292

and

injunctive

capacity,

does

over

reasons,

from bringing suit

injunctive

or

against

declaratory

State

relief

officials

designed

to

remedy ongoing violations of federal law.").

JURISDICTION:

STANDING AS TO CLAIMS

FOR DECLARATORY AND

In his Complaint,
fashion,

describes

Wheeler,

race

conspiracy

against

Complaint

44).

his

rather vaguely and in conclusory

claims

against

as a denial of due process,

and

claims

Rashad,

INJUNCTIVE RELIEF

cast

the
the

and

Defendants

claim as

a

Armel

and

discrimination by virtue of

malfeasance

OSS

Jenkins,

denial

(Compl.
Crooks
of

due

^
and

28) .

For

Flanders,

process

his
the

(Compl.

f

The claims against Harris and Demoranville are for denial
16

of due process and racial discrimination
to

Neely

and Lowery,

the

and race discrimination

The

relief

claims

(Compl.

sought

is

a

are

(Compl.

for

SI 59) .

denial

And,

of due

as

process

SI 77) .

declaration that

Rashad's

son has

been abused by riding in Wheeler's lap in a police car (Compl. %
75)

and that DSS acted improperly in handling Rashad's complaint

about that abuse

to

"enjoin

(Compl.

(Compl. f

defendants

7 6).

from

He also seeks injunctive relief

further

violations

of

his

rights."

5 77) .

The

Defendants

establishes

non-damages.

that

contend

Rashad

that,

does

not

on

its

have

face,

standing

the

Complaint

to

pursue

the

That too is a jurisdictional issue.

Article III of the Constitution limits the power of federal

courts to deciding "cases" and "controversies." This requirement
ensures the presence of the "concrete adverseness which sharpens
the

presentation

of

issues

upon

which

the

court

so

largely

depends for illumination of difficult constitutional questions."
Balcer

v.

Article
have

Carr,

III

369

U.S.

jurisdiction

standing

to

186,

on

pursue

204

the
the

(1962).

basis

Defendants

that

claims

Plaintiff

for

challenge

does

declaratory

not
and

injunctive relief.

The

doctrine

of

standing

is

case or controversy requirement.
316

(4th

Cir.

2006).

There
17

an

integral

Miller v.
are

component

Brown,

three

of

the

462 F.3d 312,
components

of

constitutional standing:
suffered,

the plaintiff must suffer,

or have

an actual or threatened injury that is not conjectural

or hypothetical;

(2)

the injury must be fairly traceable to the

challenged conduct; and
to redress the injury.
555,

(1)

560-61

(1992).

(3)

a favorable decision must be likely

Lujan v.

Rashad,

as

Defenders of Wildlife,
the

party

504 U.S.

attempting

to

invoke

federal jurisdiction, bears the burden of establishing standing.
See Miller,

462

F.3d at

316.

The

standing

requirement

that a plaintiff has sufficient personal stake in a
render

that

judicial

the

legal

resolved,
but

in

resolution

appropriate"

questions

presented

and

to

dispute to

"tends

the

"ensures

to

court

assure

will

be

not in the rarefied atmosphere of a debating society,
a

concrete

factual

context

conducive

to

a

realistic

appreciation of the consequences of judicial action." Piney Run
Pres.

Ass'n v.

(4th Cir.
and

Art.

acrimonious

Ill's

it

may

be,

requirements."
Accordingly,

personally has
result

Comm'rs of Carroll Cty.,

2001)."The presence of a

(1986).

of

Id. at 62
U.S.

Cty.

91,

the

suffered
putatively

the
some

v.

actual

by

Diamond,

plaintiff

illegal

F.3d 255,

disagreement,

insufficient

Charles

(quoting Gladstone,
99

is

268

or

must

however sharp
itself

of

to

476 U.S.
"show

threatened

conduct

the

18

meet

54,

62

that

he

injury as

other

a

party."

Realtors v. Vill. of Bellwood,

(1979)).

262

441

The

character

inquiry.

Rashad

Wheeler's
injury.
give

of

the

has

actions

injury

alleged

caused

is

no

him

essential

facts

any

to

to

concrete

the

standing

demonstrate
or

that

particularized

Wheeler's adulterous affair with Rashad's wife does not

rise

to

an

injury-in-fact

that

is

cognizable

as

a

constitutional injury or as a deprivation of federal rights.®
Any

injury

that might

be

attributable

to Wheeler's

conduct

in

driving with Rashad's seven-year-old son on his lap would be to
the

child,

not

Therefore,

to

Rashad

Rashad.

has

no

The

son

standing

is

to

not

bring

a

plaintiff.

claims

against

Wheeler.

Nor
Jenkins'

has

Rashad

alleged any

facts

to

show

that

Armel

and

failure to reprimand Wheeler caused Rashad any concrete

or particularized injury.
When

the

legality
the

suit

of

nature

is

one

government

and

extent

challenging

action

of

or

facts

the

inaction,

that

must

be

averred . . . or proved . . . in order to
establish standing depends considerably upon
whether the plaintiff is himself an object
of

the

action

...

at

issue.

.

.

.

When

.

.

. a plaintiff's asserted injury arises from
the
government's
allegedly
unlawful
regulation
(or
lack
of
regulation)
of
someone else, much more is needed.

Lujan,
does

504

not

U.S.

meet

at

this

561-62

{emphasis in original).

standard because

any

outcome

Here,

Rashad

resulting

from

® Whether Rashad has some injury that is cognizable in the state
courts is not before this Court and is not pleaded as an injury
in the Complaint.
19

the

investigation

would

affect

outcome of Armel and Jenkins'
plaintiff

in

a

personal

For

the

demonstrate

same

that

...

prosecute

failures

Wheeler

particularized
614,

619

injury.

of

(1973)

("[A]

The

because Rashad was

fails

to

at 560 n.l,

allege

Demoranville

to

Harris

and

facts

to

of Neely and Lowery in failing

caused

See

alone.

at issue." Id.

Rashad

arrest Wheeler or the decisions
to

Wheeler

and individual way"

reasons,

the

and

investigation did not "affect the

not the "object of the action
561.

Wheeler

Rashad

Linda

citizen

R.S.

any

v.

lacks

concrete

Richard

standing

P.,

to

410

or
U.S.

contest

the

policies of the prosecuting authority when he himself is neither
prosecuted nor threatened with prosecution.");
No.

CIVA

2005),

Cir.

RDB-05-1878,

aff'd sub nom.,

2006)

occurring

to

him
The

as

4898860,

Turner v.

at

Dotson,

*3

180

(D.

F.

Md.

Dec.

App'x

484

8,

(4th

result

Rashad

alleged

failures

of

protocol

caused

him

reported

the

the

these

failure

to

Defendants

prosecute

only

affect

his
the
.

504 U.S. at 561.

has

alleged

Crooks
any

complaint

although

of

of

and Rashad is not the "object of the action

. at issue." Lujan,

Finally,

a

decisions

rights of Wheeler,

Thus,

WL

Dotsun,

(finding that plaintiff failed to allege any injury

assailant).

.

2005

Turner v.

Crooks

and

and

the

Rashad

to

to

show

follow

himself

Spotsylvania

Flanders
20

facts

Flanders

injury.

to

no

failed

that

reporting

called

Sheriff's
to

the

and

Office.

report,

the

complaint
was

ultimately made

handled

accordingly.

injury because
enforcement

Crooks

its

way

Rashad

and

authorities

to

has

not

Flanders'

was

the

Sheriff's
suffered

failure

remedied

by

to

Office

a

cognizable

notify

Rashad

and

and

the
the

law
case

proceeded as if the DSS protocol had properly been followed.
For

the

prosecute

the

injunctive
over

foregoing
claims

relief.

those

claims

reasons,

against

any

Accordingly,

as

Rashad

lacks

Defendant

for

the

lacks

Court

standing
declaratory

to
or

jurisdiction

well.
CONCLUSION

For the foregoing reasons,
(Docket No.
10),

DEFENDANTS'

DEFENDANTS'

DISMISS

(Docket

FLANDERS'
LOWERY'S

23)

8),

will

DEFENDANT WHEELER'S MOTION TO DISMISS

MOTION

RULE
No.
TO

AND

NEELY'S

be

granted

JOINT MOTIONS TO DISMISS

12(b)(1)
13),

be

denied

DISMISS

(Docket

GAIL

insofar

as

as

(Fed.

moot

plaintiff's

and

The

ALTERNATIVE,

FOR PROTECTIVE ORDER

they

R.
the

MOTION

Civ.

16)

TO

are

MOTION

CROOKS'

No.

SUPPLEMENTAL MOTION

dismissed.®

as

12(b)(6)

DEFENDANTS

subject matter jurisdiction
otherwise

and

based

on

AND

19)

TO

JAYME

DEFENDANTS
(Docket

a

herein

STRIKE,

(Docket No.

[sic]

12(b)(1))

Complaint

TO

and

DISMISS

P.

(Docket No.

OR

lack

No.

of

and will
will

IN

be

THE

will be denied

moot.

® Because there is no subject matter jurisdiction, the motions to
dismiss under Fed.

R.

Civ.

P.

12(b)(6)
21

will not be addressed.

The

Clerk shall

send

a

copy of

the

Memorandum Opinion

the plaintiff.
I t i s so ORDERED.

/s/

Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:

March

2016

22

to