Greer v. Petersburg Bureau of Police et al

Filing 46

MEMORANDUM OPINION. See for complete details. Signed by District Judge Henry E. Hudson on 04/19/2017. (nbrow)

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

DERRICK JASON GREEK,

Plaintiff,
Civil Action No. 3:16CV850-HEH

V.

PETERSBURG BUREAU OF POLICE

et al.
Defendants.

MEMORANDUM OPINION

(Granting Motions to Dismiss)
THIS MATTER is before the Court on Defendants' Motions to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). Plaintiff Derrick Jason Greer ("Plaintiff) filed his

five-count Compliant on October 19, 2016. (ECF No. 1.) Plaintiffs allegations center on the
events surrounding the termination of his employment as a police officer for the city of
Petersburg, Virginia. Plaintiff alleges defamation, retaliation in violation of the First
Amendment of the United States Constitution and the Constitution of Virginia, violation of
the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and

supervisor liability for the alleged retaliation.

The Complaint names seven defendants. They include the Petersburg Bureau of
Police ("Bureau"), four individual police officers, an Assistant Commonwealth's Attorney,
and the former Petersburg City Attorney. Six of the Defendants have filed motions to

dismiss. Defendant Tiffany Buckner ("Buckner"), Assistant Commonwealth's Attorney for
the City of Petersburg, has moved to dismiss the defamation and retaliation claims raised

against her. (ECF No. 18.) Defendant John I. Dixon, III ("Chief Dixon"), former Chief of

the Petersburg Bureau of Police, has moved to dismiss the defamation and supervisor liability
claims raised against him. (ECF No. 14.) The Bureau, SergeantHervie Cheatham ("Sgt.

Cheatham"), and Sergeant Haywood James, III (" Sgt. James") have moved to dismiss the
defamation claims raised against them. (ECF No. 30.) And Captain Edwin Jones ("Capt.

Jones") has moved to dismiss the supervisor liability claim raised against him. (ECF No. 30.)
The only other defendant, BrianK. Telfair, former Petersburg City Attorney, has not moved
to dismiss any claims but rather filed an answer. (ECF No. 17.)

All parties have filed memoranda supporting their respective positions. The Court will

dispense with oral argument because the facts and legal contentions are adequately presented
in the materials before the Court, and oral argument would not aid in the decisional process.
E.D. Va. Loc. Civ. R. 7(J).

For the reasons set forth below, the Court will grant Defendants' motions.
1. BACKGROUND

As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true and views all facts in the light most
favorable to him. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836,

841 (4th Cir. 2004) (citing MylanLabs, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993)).
At this stage, the Court's analysis is both informed and constrained by the four comers of
Plaintiffs Complaint. Viewed through this lens, the facts are as follows.

Plaintiff worked as a Petersburg police officer from June 2014 until his termination in
November 2015. {See Compl.

21, 109.) At all relevant times, Chief Dixon, Capt. Jones,

Sgt. Cheatham, and Sgt. James also worked for the Bureau. {Id.

15, 16, 19, 20.)

On January 29, 2015, Plaintiff executed a search warrant on the Petersburg residence
of Jeffrey Fisher. {Id.

24.) Plaintiffs partner, Detective Shane Noblin, and several other

Petersburg police officers assisted in the search. {Id. H25.) Afterward, Fisher was charged
with multiple drug and firearm-related crimes. {Id. 160.)

Plaintiff alleges that, during the search, he witnessed officers intentionally destroying
private property and evidence. {See Id.

30-47.) On September 10, 2015, during an

investigation into the search of Fisher's residence. Plaintiff gave a formal statement to Sgt.
James in which he described the officer misconduct. {Id. fl 162-63.) In his statement.

Plaintiff also admitted that while searching the house, he noticed some candy on the floor,
which he picked up, unwrapped, and ate. {See id.

48-52, 164.)

Detective Noblin retired from the Bureau in May 2015. {Id. ^ 62.) Plaintiff was thus

required to take over many of Detective Noblin's pending cases. {Id. at 63.) But Plaintiff
was troubled by some of Detective Noblin's previous conduct. So, in June 2015, Plaintiff

approached Buckner and expressed his discomfort in continuing the investigations of
Detective Noblin's pending cases. {Id. Ifll 64-65.) He urged Buckner to dismiss Detective
Noblin's cases, stating that "everybody knows [Detective Noblin] is dirty." {Id. H66.)
However, Buckner disregarded Plaintiffs concerns. {Id. 167.)
On October 5, 2015, Plaintiff attended a preliminary hearing for one of Detective

Noblin's former cases. {Id. H78.) Still wary of Detective Noblin's prior conduct. Plaintiff
met with the defendant's attorney and an investigator for the Petersburg Public Defender's
Office. {Id. H79.) Plaintiff explained to them his belief that "Detective Noblin was dirty."
{Id. f 80.) He also stated that he had raised his concerns with Buckner, but that she had
ignored them. {Id. ^ 82.)

The investigator for the Public Defender's Office communicated Plaintiffs concerns

to Fisher's attorney. (See id ^ 83.) Accordingly, armed with the allegations about Detective
Noblin's dishonest conduct and Buckner's indifference, Fisher moved for Buckner to be

removed from his case and for her to be replaced by a special prosecutor. (Id. fl 83-85.)

The court granted that motion during a hearing on October 20, 2015. (See id. U88.)

Shortly after the hearing, "Bucknerapproached Plaintiff and yelled at [him]." (Id. 1
89.) Bucknerthen reported to Chief Dixonthat "Plaintiffmade false statements concerning
Detective Noblin." (Id fl 129, 132.)

On the same day, October 20, 2015, Sgt. Cheatham issued Plaintiff a "Notification to

Employee of Investigation," marked withthe identifier lAU# 15-08. (Id. U90.) lAU# 15-08
included the statement: "The Chief of Police has received allegations from Assistant

Commonwealth Attorney Tiffany Buckner regarding the subject employee that has brought
the Bureau into disrepute. The credibility of the officer's prior and future testimonies are

questionable at this juncture." (Id. U92.) Sgt. Cheatham also notified Plaintiffthathe had
been reassigned to administrative duties. (Id. at 94.)

On October 29,2015, Sgt. Cheatham issued Plaintiff another notification of

investigation. (Id. H95.) This second notification was marked as lAU# 15-07 and included a
"Notification of Charges" and a "Disciplinary Report Form." (Id. fl 95, 99, 102.) The

investigation documented in lAU# 15-07 concerned the Fisher residence search. (Id.

96,

104-106.) lAU# 15-07 charged Plaintiff with "immoral or unbecoming conducf based on

"an admission of moral turpitude (theft) from the subject employee." (Id. T[ 100.) lAU# 1507 cited Plaintiffs statement from September 2015 acknowledging that he ate candy from the
floor of the Fisher residence. (Id. H106.) lAU# 15-07 concluded with a recommendation that

the Bureau terminate Plaintiffs employment as a police officer. {Id. 1102.) The Bureau

accepted that recommendation and fired Plaintiffon November 10, 2015. {Id. ^ 109.)
On November 16, 2015, "Plaintiff elected to appeal the disciplinary action through the
Law-Enforcement Officers Procedural Guarantee Act, Va. Code § 9.1-500 etseq.'' {Id. ^

114.) On December 10, 2015, he sent a letter to Chief Dixon, Telfair, and the Human

Resources Director for the City of Petersburg "request[ing] a response to his demand for a
panel hearing" pursuant to Va Code. § 9.1-504. {Id. 1116.) Plaintiff received a response
from Telfair on December 17, 2015, directing Plaintiff to provide his available dates for a

hearing in January or February 2016. {Id. H117.) On December 22, 2015, Plaintiffsent
Telfair his available dates. {Id. H 118.)

Plaintiffattempted to follow up with Telfair on January 20, 2016. {Id. H119.) In that
communication. Plaintiff told Telfair that several of the dates he had previously identified

were no longeravailable. {Id. 1[ 120.) Plaintiffrequested that Telfairreply and update
Plaintiff on the status of scheduling the hearing. {Id.) However, neither Telfair nor any other

City or Bureaurepresentative has communicated with Plaintiffsince that time. {Id. ^ 122.)
Plaintiff filed his Compliant on October 19, 2016. In Count I, Plaintiff alleges

common law defamation against Buckner, Chief Dixon, Sgt. Cheatham, Sgt. James, and the
Bureau. Count II and Count III of the Complaint raise retaliation claims in violation of the
First Amendment to the United States Constitution and article 1, section 12, of the

Constitution of Virginia, respectively. Counts II and III are each asserted against Buckner,

Chief Dixon, Capt. Jones, Sgt. Cheatham, and Sgt. James. In Count IV, Plaintiff alleges that
Chief Dixon and Telfair violated the Due Process Clause of the Fourteenth Amendment to the

United States Constitution. Finally, Count V asserts that Chief Dixon and Capt. Jones are
liable for retaliation under a supervisory liability theory.
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) (citation omitted). The Federal Rules of Civil Procedure "require[] only 'a shortand

plain statement of the claim showing thatthe 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.'" BellAtl

Corp. V. Twombly, 550 U.S. 544, 555 (2007) (quoting Conleyv. Gibson, 355 U.S. 41, 47
(1957)). A complaint need not assert "detailed factual allegations," but must contain "more
than labels and conclusions" or a "formulaic recitation of the elements of a cause of action."

Twombly, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be

enough to raise a right to relief above the speculative level," to one that is"plausible on its
face," rather than merely "conceivable." Id. at 555, 570. In considering such a motion, a

plaintiffs well-pleaded allegations are taken as true and the complaint isviewed in the light
most favorable to the plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III. DISCUSSION

Between the seven Defendants in this case, they have filed three separate Motions to

Dismiss. In the aggregate, those Motions seek the dismissal of the entirety of Plaintiffs
defamation claims and supervisor liability claims as well as his retaliation claims as to
Buckner.

a. Defamation

In Count I, Plaintiff alleges common law defamation against Buckner, Chief Dixon,
Sgt. Cheatham, Sgt. James, and the Bureau of Police, which they all have moved to dismiss.
In response to the Motions to Dismiss, Plaintiff has conceded that he has failed to state

a defamation claim against Buckner and Chief Dixon because he has not pleaded their words

with specificity. (PL's Br. Opp'n Buckner's Mot. Dismiss 2, ECF No. 36; Pi's Br. Opp'n
Dixon's Mot. Dismiss 2, ECF No. 37; see Fed. Land Bank ofBaltimore v. Birchfield, 3

S.E.2d 405, 410 (Va. 1939).) Therefore, the only contested defamation claims are those
against Sgt. Cheatham, Sgt. James, and the Bureau.

The alleged defamation committed by Sgt. Cheatham, Sgt. James, and the Bureau
stems from the two investigations against Plaintiff. Plaintiff asserts that the documents

associated with investigation lAU# 15-08 published defamatory statements about Plaintiffs
credibility, and the documents associated with investigationlAU# 15-07published
defamatory statements about Plaintiff having made an admission of moral turpitude.
To state a claim for defamation under Virginia law, a plaintiff must establish three

elements: "(1) publication of (2) an actionable statement with (3) the requisite intent."

Schaecher v. Bouffault, 111 S.E.2d 589, 594 (Va. 2015) (quoting Tharpe v. Saunders, 13>1
S.E.2d 890, 892 (Va. 2013)). However, "[a] qualified privilege attaches to 'communications
between persons on a subject in which the persons have an interest or duty.'" Cashion v.
Smith, 749 S.E.2d 526, 532 (Va. 2013) (quoting Zar/wore v. Blaylock, 528 S.E.2d 119, 121
(Va. 2000)). This privilege includes "defamatory statements made between co-employees
and employers in the course of employee disciplinary or discharge matters." Larimore, 528
S.E.2dat 121.

The qualified privilege may be overcome where the defamatory words were spoken
with common law malice. Cashion, 749 S.E.2d at 532-33; Larimore, 528 S.E.2d at 121.

Malice can be shown in various way, including where "the statements were made with

knowledge that they were false or with reckless disregard for their truth" or where they were
"motivated by personal spite or ill will." Cashion, 749 S.E.2d at 533 (internal citations
omitted).

In this case, Plaintiff concedes that qualified privilege attaches to the statements made
about him in lAU# 15-07 and IAU#15-08. (Pl.'s Br. Opp'n Bureau's Mot. Dismiss 10, ECF

No. 41.) He argues however that this privilege is defeated because Defendants "made the
statements about Plaintiff (1) knowing the statements were false or with reckless disregard of
whether the statements were false or not, or (2) because of hatred, ill will, or a desire to hurt
the plaintiff." {Id.)

While the Complaint makes conclusory statements that Defendants acted with malice,

its factual allegations are insufficient to raise Plaintiffs rightto relief above the speculative
level. Plaintiff has alleged no facts about Sgt. Cheatham or Sgt. James to support an

inference that they had ill will towards Plaintiffor that they knew that the statements at issue
were false. The Complaint merely states that Defendants "knew the statements about
Plaintiff [were] false or made such statements with reckless disregard for whether they were
false or not." (Compl.

151, 152; see also id. ^ 140.)

The United States Court of Appeals for the Fourth Circuit addressed this exact issue in
May
field v. National Ass'nfor Stock Car Auto Racing when it reviewed a district court's
dismissal of a defamation claim for failure to sufficiently plead malice. 674 F.3d 369 (4th
Cir. 2012). That complaint alleged malice only by asserting that the defamatory statements

"were known by [defendants] to be false at the time they were made, were malicious or were
made with reckless disregard as to their veracity." /(Of at 378. The Fourth Circuit affirmed the

district court's dismissal, holding that "[t]his kind of conclusory allegation—a mere recitation

of the legal standard—is precisely the sort of allegations that Twombly andIqbal rejected."
Id.

Nonetheless, Plaintiff argues that his Complaint contains sufficient facts to allege

malice. He highlights the fact that Sgt. Cheatham issued lAU# 15-08 on the same day that
Buckner informed Chief Dixon that Plaintiff had been making accusations about Detective

Noblin. (PL's Br. Opp'n Bureau's Mot. Dismiss 10.) Plaintiffargues that this temporal
proximity is sufficient to plead malice. {Id.)

The Court disagrees. The fact that the Bureau initiated an investigation into Plaintiff

on the same day that Buckner reported his conduct to ChiefDixon in no way indicates that
Defendants acted with malice. The Court would fully expect the Bureau to immediately

initiate an internal investigation upon learning that one of its officers was accusing another
officer of misconduct concerning pending criminal prosecutions.

At bottom. Plaintiff has pleaded no facts to demonstrate that anyone at the Bureau

harbored ill will against him or had any reason to question the truth of the statements which
he is challenging. Evenwhen affording Plaintiffevery reasonable inference, he has failed to
plead the requisite malice to overcome Defendant's qualified privilege. Accordingly, the
Court will dismiss Count I in its entirety.
b. Retaliation

Plaintiff raises retaliation claims against Buckner, Chief Dixon, Capt. Jones, Sgt.

Cheatham, and Sgt. James. In Count II, Plaintiff brings a claim pursuant to 42 U.S.C. § 1983,

alleging that these defendants retaliated against him in violation of the First Amendment to
the United States Constitution. (Id.

159-83.) In Count III, Plaintiff alleges that the

defendants' retaliation also violates article 1, section 12 of the Constitution of Virginia. {Id.

fl 184-99.) Plaintiffs central argument is that he engaged in protected speech when he
raised concerns about Detective Noblin and when he alleged that officer misconduct occurred

during the search of the Fisherresidence. {See id.

171-73, 187-89.) He contends that -

Buckner retaliated against him "by making false and defamatory statements of fact about
Plaintiff to Chief of Police Dixon and/or others in the Bureau." {Id. fl 175, 191.) Plaintiff

further alleges that the Bureau and other officers retaliated against him by reassigning himto
administrative duties and eventually firing him. {Id.

177, 180, 193, 196.) Buckner is the

only defendant who has moved to dismiss the retaliation claim.

To state a claim of retaliation for protected speech, a plaintiff must sufficiently plead

three elements: "(1) his speech was protected, (2) the 'alleged retaliatory action adversely

affected' his protected speech, and (3) a causal relationship between the protected speech and
the retaliation." Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (quoting Suarez Corp.
Indus. V. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). Here, the only material dispute

involves the second element: whether Buckner's alleged retaliation—making false and

defamatory statements of fact aboutPlaintiff—adversely affected his protected speech.
The Court must conduct a fact-specific analysis to determine whether Plaintiff has

sufficiently pleaded that his First Amendment rights were adversely affected by retaliatory
conduct. This inquiry "focuses on the status of the speaker, the status of the retaliator, the

relationship between the speaker and the retaliator, and the nature of the retaliatory acts."
Suarez, 202 F.3d at 686. In this case, the retaliation claims which Plaintiff raises against
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Buckner and the Bureau turn on separate axes. While Plaintiff has an employment

relationship with the Bureau and other officers, his relationship to Buckner is akin to that of a
citizento a public official. Thus, the Court must evaluate the retaliation claim against her in
that context. See id. at 686-87.

Additionally, the Court's analysis is focused even more narrowly here because the
alleged retaliation committed by Buckner is in the form of speech. The Fourth Circuit has

consistently held that where a public official's alleged retaliation is in the nature of speech,
"there is no retaliation liability—even if the plaintiff can demonstrate a substantial adverse

impact—unless the government speech concerns 'private information about an individual' or
unless it was 'threatening, coercive, or intimidating so as to intimate that punishment,
sanction, or adverse regulatory action will imminently follow.'" Baltimore Sun v. Ehrlich,
437 F.3d 410, 417 (4th Cir. 2006) (quoting Suarez, 202 F.Sd at 689); see also Blankenship v.
Manchin, 471 F.Sd 523, 528 (4th Cir. 2006). A plaintiffs ability to recover for retaliation in
these circumstances is limited because of the competing interests in the public official's own
First Amendment rights as well as her obligation to fulfill her public duties. Baltimore Sun,
A2il F.3d at 417; Suarez, 202 F.3d at 687 (noting that in these situations "such speech does

not adversely affect a citizen's First Amendment rights, even if defamatory").
In this case, Buckner's alleged retaliation is solely in the nature of speech—false and
defamatory statements about Plaintiff. While Plaintiff certainly has a strong interest in his
First Amendment right to free speech, Buckner has a competing First Amendment right.

Additionally, the facts here indicate that one police officer—^Plaintiff—^was accusing another
police officer—^Detective Noblin—of inappropriate conduct pertaining to criminal
investigations. Buckner, as an Assistant Commonwealth's Attorney, arguably had a duty to
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report the situation to the Chiefof Police. Thus, she is liable for retaliation only if her
statements concerned private information about plaintiffor amounted to threat, coercion, or
intimidation.

Plaintiffs Complaint is devoid of any facts to indicate that Buckner's retaliatory

statements contained private information or were threating, coercive, or intimidating. The

Complaint's only reference to Buckner's retaliatory statement is"[o]n information and belief,
Ms. Buckner alleged Plaintiff made false statements concerning Detective Noblin, or words
to that effect." (Compl. H93.) Thus, Plaintifffalls well shortof sufficiently pleading that
Buckner adversely affected Plaintiffs FirstAmendment speech rights by revealing private
information about him or by threating, coercing, or intimidating him.

The foregoing analysis is equally applicable to Plaintiffs retaliation claims under the
First Amendment and the Constitution of Virginia. Accordingly the Court will dismiss both
Count II and Court III as they apply to Buckner.
c. Supervisor Liability

Finally, in Count V, Plaintiffalleges that ChiefDixonand Capt. Jones are liable for
retaliation in violation of the First Amendment under a supervisory liability theory pursuant

to 42 U.S.C. § 1983. Chief Dixon and Capt. Jones both seek the dismissal of Count V,

arguing that Plaintiffhas failed to plead sufficient facts to state a supervisory liability claim.
Under 42 U.S.C. § 1983, a supervisor is liable for the actions of a subordinate only if
three elements are satisfied: "(1) he knew that his subordinate 'was engaged in conduct that

posed a pervasive and unreasonable risk of constitutional injury'; (2) his response showed
'deliberate indifference to or tacit authorization of the alleged offensive practices'; and (3)
that there was an 'affirmative causal link' between his inaction and the constitutional injury."
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King V. Rubenstein, 825 F.3d 206, 224 (4th Cir. 2016) (quoting Shaw v. Stroud, 13 F.3d 791,
799 (4th Cir. 1994)). Importantly, a supervisor cannot be held liable pursuantto § 1983
under a respondeat superior theory of vicarious liability. Asheroft v. Iqbal, 556 U.S. 662,
677 (2009) (rejecting that "a supervisor's mere knowledge of his subordinate's

[unconstitutional conduct] amounts to the supervisor's violating the Constitution"); Vinnedge
V. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) ("The doctrine of respondeat superior has no

application under [42 U.S.C. § 1983]."). Indeed, satisfying the knowledge requirement of the
first prong requires more that the mere knowledge of an isolated constitutional violation.

Rather it requires knowledge "that the conduct is widespread, or at least has been used on
several different occasions." Shaw, 13 F.3d at 799.

Chief Dixon and Capt. Jones argue that the complaint merely alleges that they had
knowledge of the single purported retaliatory act committed by Sgt. Cheatham. They contend
that this is insufficient to state a supervisory liability claim. {See Dixon's Br. Supp. Mot.
Dismiss 9-11, ECF No. 15; Bureau's Br. Supp. Mot. Dismiss 9-11, BCF No. 31.)

In response to Chief Dixon's Motion, Plaintiff describes a long history of the Bureau's
violations of its officer's First Amendment Rights; yet he acknowledges that these facts are
absent from the Complaint. (PL's Br. Opp'n Dixon's Mot. Dismiss 9.) Later, in response to

Capt. Jones's identical argument, Plaintiff appears to have changed his position, expressly
conceding that he has failed to state a supervisory liability claim. (PL's Br. Opp'n Bureau
Mot. Dismiss 2.)

To the extent that Plaintiff still takes the position that he has pleaded sufficient facts to

state a supervisory liability claim against Chief Dixon, the Court finds that this argument is
unpersuasive. As it pertains to supervisory liability, the Complaint contains no more facts
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relating to ChiefDixon than it does to Capt. Jones. Mere knowledge of one incident of
retaliation is insufficient to confer supervisory liability under § 1983.
Therefore, the Court will dismiss Count V.
IV. CONCLUSION

Based on the foregoing, Defendants' Motions to Dismiss (ECF Nos. 14, 18, 30) will be

granted. Count I and Count V will be dismissed withoutprejudice in their entirety. Count II
and Count III will be dismissed without prejudice as to defendant Buckner.

An appropriate Order will accompany this Memorandum Opinion.
«

Henry E. Hudson
United States District Judge

Date:Apr/l

?

Richmond, VA

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