Eley et al v. Allen
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 2/7/2017. (sbea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICKEY S. ELEY and
TAWANNE S. ELEY,
Civil Action No. 3:16-CV-00842-JAG
BRYAN J. ALLEN,
Following a car accident. Officer Bryan J. Allen took out arrest warrants for Rickey S.
Eley ("Mr. Eley") and Tawanne S. Eley ("Mrs. Eley") for giving false reports to a police officer
and violating Virginia's hit-and-run laws. According to the Eleys, Officer Allen had no basis or
cause for these charges, so they have sued Officer Allen for violating their Fourth Amendment
rights, engaging in malicious prosecution, and defaming them. Officer Allen has moved to
dismiss all claims. Because the facts and inferences as plead by the Eleys sufficiently state a
claim for a Fourth Amendment violation and malicious prosecution, the Court will deny the
motion to dismiss these claims. The Court, however, will grant the motion to dismiss the Eleys'
defamation claim because absolute privilege coversthe alleged defamatory statements.
On October 17, 2015, the Eleys were driving in Petersburg, Virginia. Specifically, Mrs.
Eley drove and Mr. Eley sat in the front seat. The car the Eleys drove had an inoperable inside
door handle on the driver's side door.
At an intersection, another car ran a red light and collided with the Eleys' car. Mrs. Eley
could not open the driver's side door because of the broken door handle, so Mr. Eley reached
across Mrs. Eley, rolled down the driver's side window, and opened the driver's door from the
outside. Mr. Eley helped his wife get out of the car on the driver's side, then got out of the car
on the passenger's side. Mr. Eley then called 9-1-1. While they waited, the teenage driver of the
other car acted aggressively and belligerently.
Officer Allen arrived at the scene and interviewed "the individuals involved and
26.) The Eleys explained the accident. The driver and passengers of the
other car accused the Eleys of switching seats after the accident. The Eleys responded to this
accusation by explaining the broken door handle to Officer Allen. During the investigation,
Officer Allen was condescending and arrogant to the Eleys, and he grew increasingly frustrated
and angry as the investigation continued without resolution. Officer Allen left without charging
either vehicle with any traffic offenses.
Later that evening, Officer Allen took out warrants for the Eleys' arrest. In statements to
a magistrate, he alleged that both of the Eleys gave false reports to a police officer and violated
Virginia's hit-and-run laws.^ The magistrate issued the arrest warrants, which police executed
the next day. While in custody, the Eleys explained the facts to officers in the City of Suffolk,
who said that "the charges never should have been taken out." (Compl. H51.) A magistrate
released the Eleys on their unsecured recognizance. In February 2016, the Commonwealth's
Attorney dropped the charges.
Nevertheless, Mr. Eley, who served as a high school principal in North Carolina, reported
the charges to the superintendent, who then reported to the school board. On November 16,
2015, the school board forced Mr. Eley to resign. At least four media outlets reported the story
and portrayed Mr. Eley in a very negative light.
As a result, Mr. Eley has not found a
^Virginia's hit-and-run laws can apply to drivers and passengers, even though they do not"run,'
if they do not truthfully identify the driver. See Va. Code 46.2-894, -895
The Eleys have sued Officer Allen for (I) violation of their Fourth Amendment rights;
(II) malicious prosecution; and (III) defamation. Officer Allen has moved to dismiss all claims
Count I: Fourth Amendment Claim
The Court will deny the motion to dismiss Count I because the Eleys plausibly alleged
that Officer Allen showed reckless disregard for the truth when he took out warrants for their
arrest. A police officer violates the Fourth Amendment—^made applicable to the states through
the Fourteenth Amendment—^"if, in order to obtain a warrant, he deliberately or with reckless
disregard for the truth makes material false statements or omits material facts." Miller v. Prince
George's Cnty., 475 F.3d 621, 631 (4th Cir. 2007) (citing Franks v. Delaware, 438 U.S. 154,155
(1978)) (quotation marks omitted). An officer acts with reckless disregard when, having viewed
all the evidence, he "entertained serious doubts as to the truth of his statements or had obvious
reasons to doubt the accuracy of the information he reported." Id. at 627 (citation and quotation
In this case, the Eleys have plausibly alleged that Officer Allen showed reckless disregard
for the truth when he took out warrants for their arrest. Accepting as true all allegations in the
complaint. Officer Allen had a mature couple telling a consistent story, a broken door handle on
^ Allen moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A Rule
12(b)(6) motion to dismiss gauges the sufficiency of a complaint. Republican Party ofN.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering the motion, a court must accept all
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). "The tenet that a court must
accept as true all of the allegations contained in a complaint[, however,] is inapplicable to legal
conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motionto
dismiss, a complaint must state facts that, when accepted as true, "state a claim to relief that is
plausible on its face." Id. (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
their car, and a belligerent teenager and his friends.^ Nevertheless, Officer Allen presented to the
magistrate only statements that the Eleys made false reports to a police officer and violated
Virginia's hit-and-run laws. Officer Allen omitted potentially material facts from his statement,
including the Eleys exculpatory version of events. Further, Officer Allen plausibly had reason to
doubt the accuracy of the information he reported.
Accordingly, Count I survives Officer
Allen's motion to dismiss."^
Count II: Malicious Prosecution
The Court will also deny Officer Allen's motion to dismiss Count II because the Eleys
plausibly allege that Officer Allen lacked probable cause for their arrest. In Virginia, a claim for
malicious prosecution requires a plaintiff to prove that the prosecution was (1) malicious, (2)
instituted by the defendant, (3) without probable cause, and (4) terminated in the plaintiffs
favor. Lewis v. Kei, 281 Va. 715, 722, 708 S.E.2d 884, 889 (2011).
Officer Allen only
challenges the third element, arguing that he acted with probable cause. For the same reasons
that Count I survives, however. Count II survives Officer Allen's motion to dismiss. As alleged,
the Eleys have plausibly stated a claim that Officer Allen acted without probable cause on the
Further, courts evaluate probable cause based on the totality of the
circumstances,^ an inquiry better suited for summary judgment or trial. Thus, the Court denies
the motion to dismiss Count II.
^ Officer Allen focuses on the fact that he interviewed witnesses other than those involved in the
offense, (Compl. H26), then came to his conclusion based on witness statements, (Compl. K41).
The complaint, however does not indicate the identity of the witnesses or whether the cited
paragraphs in the complaint refer to the same witnesses. At this stage, the Court will draw all
inferences in the Eleys' favor.
^ The Court also denies Officer Allen's qualified immunity argument at this time because the
Eleys plausibly alleged that he violated a clearly established constitutional right. See Miller, 475
^ Wadkins v. Arnold, 214 F.3d 535, 539 (4thCir. 2000).
Count III: Defamation
The Court will, however, grant the motion to dismiss Count III because absolute privilege
covers Officer Allen's statements to the magistrate. Under well-settled Virginia law, words
spoken or written in a judicial or quasi-judicial proceeding enjoy absolute privilege from claims
of defamation as long as the words are relevant and pertinent to the matter under inquiry. See
Darnell v. Davis, 190 Va. 701, 707, 58 S.E.2d 68, 70 (1950) (citing Penick v. Ratcliffe, 149 Va.
618, 632-35, 140 S.E.2d 664, 669 (1927)).^ Statements made to initiate criminal prosecutions
certainly qualify. See Daniczek v. Spencer, 156 F. Supp. 3d 739, 752-53 (E.D. Va. 2016). In
this case. Officer Allen made statements about the Eleys to a magistrate to obtain an arrest
warrant. Absolute privilege covers these statements, precluding the Eleys' claim for defamation.
The Eleys argue that qualified, not absolute, privilege applies here. For this proposition,
they rely on an unpublished decision that cites a Virginia circuit court decision, which in turn
relies on an overruled decision.' Well-settled Virginia law cited above, however, applies
absolute privilege to statements made in judicial and quasi-judicial proceedings. The Eleys also
cite cases discussing qualified immunity in § 1983 cases,^ an entirely separate body oflaw from
immunity in state law defamation cases. Thus, under Virginia law, absolute privilege applies in
this case, not qualified privilege. Accordingly, the Court grants Officer Allen's motion to
dismiss the Eleys' claim for defamation.
^See also Lindeman v. Lesnick, 268 Va. 532, 537-38, 604 S.E.2d 55, 58 (2004) (citing cases and
explaining the reasons for this absolute privilege).
' The Eleys quote Mukuna v. Gibson, No. 1:11CV493 (LMB/IDD), 2011 WL 3793336, at *3
(E.D. Va. Aug. 25, 2011), which cites Morris v. Massingill, 61 Va. Cir. 532, 536 (Va. Cir. Ct.
2003), which cites Taylor v. Grace, 166 Va. 138, 144, 184 S.E. 211 (1936). (Opp'n 19-20.) The
Supreme Court of Virginia overruled Taylor in Cashion v. Smith, 286 Va. 327, 749 S.E.2d 526
^ For example, the Eleys quote Malley v. Briggs, 475 U.S. 335, 340-41 (1986), and in fact
include in its quotation the phase "police officrs sued under § 1983 for false arrest." (Opp'n 21.)
Malley has nothing to do with defamation, let alone defamation under Virginia law.
In summary, while the statements Officer Allen presented to the magistrate to obtain an
arrest warrant for the Eleys cannot form the basis of a defamation claim, the circumstances
surrounding the warrant do plausibly allege claims under the Fourth Amendment and for
malicious prosecution. Accordingly, the Court grants in part and denies in part Officer Allen's
motion to dismiss.
The Court will enter an appropriate order.
Let the Clerk send a copy of this Opinion to all counsel of record.
United States Distraitj Jj
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