Burnley v. Durham et al
Filing
53
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 08/06/2019. Copy mailed to pro se plaintiff. (tjoh, )
m
AUG- 72019
y
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
CLERK, U.S. DISTRICT COURT
RICHMOND. VA
Richmond Division
JOHN RODGERS BURNLEY,
Plaintiff,
Civil Action No. 3;18-cv-404
V.
ALFRED DURHAM, et al.,
Defendants.
MEMORANDUM OPINION
This is a civil rights action brought by pro se plaintiff
John Rodgers Burnley ("Burnley") against former Richmond Police
Chief Alfred Durham ("Chief Durham");^ "[u]nknovm [n]amed [p]dice
[o]fficers [f]or [t]he City of Richmond" (the "Unknown Officers");
the City of Richmond Police Department (the "RPD"); the City of
Richmond (the "City"); Darsetta M. Coleman ("Coleman"), Burnley's
neighbor; "COMCAST,"
meaning
Comcast
Cable
Communications
^ Chief Durham resigned on December 31, 2018.
is now the Richmond Police Chief.
LLC
William Smith
But, the action can continue
against William Smith in his official capacity'under Fed. R. Civ.
P. 25(d), which says, "An action does not abate when a public
officer who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending. The
officer's successor is automatically substituted as a party."
Further, Burnley sued Chief Durham in his personal capacity as
well, so his resignation does not affect Burnley's claims against
him as a person.
See Hafer v. Melo, 502 U.S. 21, 27 (1991)
("[0]fficers sued in their personal capacity "come to court as
individuals.").
("Comcast"); "Verizon," meaning Verizon Virginia LLC ("Verizon")
and Keith Brown, a Verizon technician.
p. 2.
See Compl. (ECF No. 4) at
Burnley alleges myriad violations under 42 U.S.C. § 1983
and 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991.
The case is currently before the Court on the defendants' various
motions to dismiss.
DEPARTMENT AND
RULE
12(b)(6)
See DEFENDANTS ALFRED DURHAM, RICHMOND POLICE
CITY OF RICHMOND'S
(ECF
No.
11);
MOTION
TO
DISMISS PURSUANT
DEFENDANT
COMCAST
TO
CABLE
COMMUNICATIONS, LLC'S MOTION TO DISMISS (ECF No. 15); DEFENDANT
DARSETTA COLEMAN'S MOTION TO DISMISS (ECF No. 22).3
The Court will dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the Court, and argument would not aid in the decisional
process.
For the reasons discussed below, the Court finds that
2 Burnley named only "Verizon" in the Complaint.
But
"Verizon" is not a legal entity, and, according to a search
completed on the Virginia Secretary of State's website, there are
around 200 legal entities with "Verizon" in the name. As stated
in
VERIZON
VIRGINIA
LLC'S
OPPOSITION
TO
BURNLEY'S
MOTION
FOR
JUDGMENT BY DEMAND AND MOTION FOR JUDGMENT BY DEFAULT; OR, IN THE
ALTERNATIVE, MOTION FOR LEAVE TO FILE LATE RESPONSIVE PLEADINGS
(ECF No. 41), Keith Brown is employed by Verizon Virginia LLC,
which is the party that Burnley should have sued. Because Verizon
Virginia LLC voluntarily appeared in this matter, see id. at 1,
all references in this opinion to "Verizon" refer to "Verizon
Virginia LLC."
3 Defendants Verizon and Keith Brown did not file motions to
dismiss.
As a result, Burnley twice moved for judgment against
both defendants.
MOTION FOR JUDGMENT BY DEFAULT (ECF No. 34);
MOTION FOR JUDGMENT BY DEMAND (ECF No. 37). These motions will be
denied, and the claims against Verizon and Brown will be discussed
below.
Burnley has failed to plead an actionable claim.
Thus, the case
will be dismissed under Fed. R. Civ. P. 12(b)(6) with respect to
Chief Durham, the RPD, the City, Comcast, and Coleman.
The Court
further will dismiss the claims against Verizon and Keith Brown
under 28 U.S.C. § 1915(e)(2)(B), because his claims are wholly
fanciful and meritless against them.
the
Unknown
Officers
will
Finally, the claims against
be
dismissed
under
28
U.S.C. § 1915(e)(2)(B)(ii) because Burnley fails to state a claim
against the RPD or the City.
BACKGROUND
A.
Factual Background
John Rodgers Burnley is a frequent filer of pro se cases
against various government officials.
By the Court's count, he
has filed thirteen cases in this Court dating back to 1990, mostly
involving civil rights claims.'^
Burnley filed a Complaint in forma
4 Those cases are Burnley v. Norwood, 3;10-cv-264; Burnley v.
United States, 3:05-cv-554; Burnley v. Stone Container Corp.,
3:95-CV-642; Burnley v. United States, 3:95-cv-743; Burnley v.
Murray, 3:93-cv-3; Burnley v. Click, 3:92-cv~442; Burnley v.
Frank, 3;92-cv-740; Burnley v. Commanding General, 3:92-cv-748; In
re Burnley, 3:91-mc-3; Burnley v. Murray, 3:91-"CV-205; Burnley v.
In re Estate of Will, 3:91-cv-516; Burnley v. Kennon, 3:90-cv-80;
and Burnley v. Murray, 3:9G-cv-306.
The facts alleged in this
case are strikingly similar to those alleged in Burnley v. Norwood,
3;10-cv-264, in which Burnley alleged that neighbors harassed and
reported him to the RPD and that the RPD and Burnley's neighbors
coordinated to spy on Burnley and to make up fake drug charges
against him.
See Burnley v. Norwood, No. 3:10-cv-264, 2010 WL
3063779, at *i-*3 (Aug. 4, 2010). The court granted the motions
to dismiss under 12(b)(6) filed by the City, the RPD, individual
RPD officers, and Burnley's neighbors, holding that Burnley failed
pauperis alleging that the defendants cooperated to spy on him
through illegal wiretaps.
Specifically, he alleges that Chief
Durham and the RPD conducted a campaign to harass and intimidate
him through using a Verizon technician named Keith Brown to wiretap
Burnley's house.
Compl. (ECF No. 4) UH 2-4.
In Burnley's view,
Chief Durham directed others to surveil the inside of Burnley's
home
without
probable
cause,
using
a
"highly
sophisticated
technique," which involved Burnley's Comcast cable box sending out
a "laser bean signal" that allowed police officers to look through
his television sets in six rooms throughout his house.
7.
a
Id. HI 5-
Burnley alleges that Brown told Burnley that Brown was making
wiretap on Burnley's phone every thirty days as Brown was
directed to by Chief Durham and the RPD.
Id.. ^ 10.
Brown then
told Burnley that the RPD "want[ed] to lock [Burnley] up so [sic]
kind of bad" even though Brown told Burnley that Burnley was doing
nothing illegal.
Id.
11-12.
Because Brown was sympathetic to
Burnley, Burnley alleges that Brown gave Burnley his personal cell
phone numbers so that Brown could keep Burnley informed as to what
Chief Durham and the RPD were trying to do to arrest Burnley.
Id.
h 14.
Burnley also alleges that he used a digital police scanner to
hear what the RPD was saying about him in his home, and Burnley
to state a claim under 28 U.S.C. §§ 1981a, 1983, and 1985.
*5-*9.
Id. at
alleges that RPD officers would discuss his activities as he walked
throughout his home.
Id. 1 20. And, he argues that his neighbor,
Coleman, conspired with Chief Durham and the RPD by renting her
car out to the RPD so that "two (2) black female plain clothes
police officers" could turn her car's high headlight beams on his
home from 10:00 p.m. to 2:00 a.m. to harass Burnley, because
Coleman wanted Burnley to go to jail.
Id. KK 2,1-22.
Further, Burnley alleges that he told Chief Durham and Peter
Magri of the Verizon Corporate Security Office about this issue
and that no one who works for the City or Verizon helped prevent
the surveillance.
conclusory
manner,
Id. fH 1-2, 9, 15.
that
surveillance program.
Comcast
Id. 1 18.
had
Burnley also says, in a
full
knowledge
of
this
Further, he alleges that these
actions have caused emotional distress to he and his family.
Id.
H 8.
Because of this alleged surveillance and harassment scheme,
Burnley believes that he is entitled to roughly $2 billion.
He
seeks damages of $75 million from Chief Durham in his personal
capacity and $150 million in his official capacity for violating
the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution.
He also seeks $700 million from Chief Durham, the
Unknown Officers, the RPD, and the City for the same violations,
saying that his privacy was invaded and that he had severe mental
and
emotional
distress
due
to
these
constitutional
violations.
Burnley also seeks $600 million from Comcast, $700 million from
Verizon and Keith Brown, and $75 million from Coleman for acting
in concert with the City to violate his constitutional rights.
B.
Procedural Background
After Burnley filed an APPLICATION TO PROCEED IN DISTRICT
COURT WITHOUT PREPAYING FEES OR COSTS {ECF No. 1), the Court issued
an ORDER dated July 13, 2018 (ECF No. 3), in which the Court
granted the application, but, in so doing, the Court cautioned
that
Burnley
should
ensure
that
his
claims
were
possibly
meritorious before proceeding with his case due to his histoiry of
frivolous filings.
Id.
Burnley filed a NOTICE OF APPEAL {ECF No.
8) on July 24, 2018, arguing that the Court had violated his due
process rights and that the Court's ORDER told Burnley that he did
not have **any federally protected constitutional rights under the
4th and 14th amendments."
Id.
On January 4, 2019, the United
States Court of Appeals for the Fourth Circuit held that it lacked
jurisdiction over Burnley's appeal.
No. 31).
Fourth Circuit Opinion (ECF
The mandate was issued on January 28, 2019, giving this
Court jurisdiction again.
Mandate (ECF No. 33).
In the meantime, various defendants filed motions to dismiss.
Defendants Chief Durham, the RPD, and the City filed a motion under
Fed. R. Civ. P. 12(b)(6).
S^ DEFENDANTS ALFRED DURHAM, RICHMOND
POLICE DEPARTMENT AND CITY OF RICHMOND'S MOTION TO DISMISS PURSUANT
TO RULE 12(b)(6) (ECF No. 11).
Comcast filed a motion to dismiss
under 28 U.S.C. § 1915(e)(2)(B)(i); Fed. R. Civ. P. 12(b)(6); and
Fed.
R.
Civ.
P.
12(b)(1).
DEFENDANT
COMCAST
COMMUNICATIONS, LLC'S MOTION TO DISMISS (EOF „No. 15).
CABLE
Coleman
filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
See
DEFENDANT DARSETTA COLEMAN'S MOTION TO DISMISS (ECF No. 22).
Each
of those motions will be addressed below.
DISCUSSION
A.
Legal Standard
1.
Fed. R. Civ. P. 12(b)(1)
A party may file a motion to dismiss for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1). If a court
finds that it does not have subject matter jurisdiction over the
case or controversy, it must dismiss the action.
H Corp., 546 U.S. 500, 514 (2006).
Arbaugh v. Y &
Of course, the plaintiff bears
the burden of establishing that federal jurisdiction is proper by
a preponderance of the evidence.
U.S. ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 347 (4th Cir. 2009).
Challenges to subject matter jurisdiction may be made in two
ways.
First, a facial challenge to jurisdiction may be made by
arguing that the complaint does not allege facts that permit the
exercise of federal subject matter jurisdiction.
United States, 585 F.3d 187, 192 (4th Cir. 2009).
See Kerns v.
If that type of
challenge is raised, the court must assume that all facts alleged
in the complaint are true.
Id.
Second, the challenge can be made
under the theory that the complaint's assertion of subject matter
jurisdiction is not true.
Id. (quoting Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982)).
In that event, a court may consider
evidence outside the pleadings.
2.
Id.
Fed. R. Civ. P. 12(b)(6)
In considering a motion to dismiss under Rule 12(b)(6), the
Court accepts all well-pleaded allegations as true and views the
complaint in the light most favorable to the plaintiff.
Philips
V. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
But
the Court does not need to accept the plaintiff's legal conclusions
drawn from those facts.
Id.
The Court can take judicial notice
of matters of public record, and it can consider documents attached
to the complaint and motions to dismiss "so * long as they are
integral to the complaint and authentic."
Id.
Fed. R. Civ. P. 8(a)(2) requires "a short and plain statement
of the claim showing that the pleader is entitled to relief" 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) (ellipsis in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)).
A complaint attacked by a motion
to dismiss under Rule 12(b)(6) does not require detailed factual
allegations, but it does require "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do."
Id.
The complaint "must contain sufficient factual
8
matter, accepted as true, to
plausible on its face.'"
* state a claim to relief that is
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
"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." Id.
The plausibility standard
requires ''more than a sheer possibility that a defendant has acted
unlawfully."
Id.
Courts construe pro se complaints liberally.
As the Supreme
Court has instructed, "
[a] document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers."
(per
curiam)
omitted);
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations
omitted)
see also Fed. R.
(internal
Civ. P. 8(e)
construed so as to do justice.").
quotation
marks
("Pleadings must be
However, the Court should not,
and cannot, accept as true conclusory allegations or those that
are not plausible.
3.
See Twombly at 556-57.
28 U.S.C. § 1915(e)(2)(B)(i)-(ii)
Under 28 U.S.C. § 1915(e)(2)(B), the Court shall dismiss any
case filed by a pro se plaintiff in which the action "is frivolous
or malicious" or "fails to state a claim on which relief may be
granted."
Section 1915(e)(2)(B)(i) permits courts to "pierce the veil
of the complaint's factual allegations and dismiss those claims
whose
factual
contentions
are
clearly
baseless."
Denton
v.
Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke v. Williams,
490
U.S.
319,
327
(1989)).
Claims
are
frivolous
when
they
"describ[e] fantastic or delusional scenarios," Denton, 504 U.S.
at 32 (quoting Neitzke, 490 U.S. at 327), or are "so nutty,
delusional, or wholly fanciful as to be simply unbelievable."
McLean
v.
United
States,
566
F.3d
391,
399
(4th
Cir.
2009)
(internal quotation marks omitted) (quoting Gladney v. Pendleton
Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002); Denton, 504
U.S. at 29).
Section 1915(e)(2)(B)(ii) allows the Court to dismiss claims
based upon "an indisputably meritless legal theory."
Clay v.
Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke, 490
U.S. at 327).
This standard is the same as a motion to dismiss
under Fed. R. Civ. P. 12(b)(6).
See Szubielski v. Pierce, 152 F.
Supp. 3d 227, 231 (D. Del. 2016); see also Simms v. Edmonds, 232
F.3d 889 (Table), at *1 (4th Cir. 2000).
B.
Chief Durham, the RPD, and the City's Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(6)
Defendants Chief Durham, the RPD, and the City argue that
Burnley has failed to state a claim.
The Court agrees.
Thus,
DEFENDANTS ALFRED DURHAM, RICHMOND POLICE DEPARTMENT AND CITY OF
10
RICHMOND'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) (EOF No.
11) will be granted.
1.
Fed. R. Civ. P. 12(b)(6)
Burnley alleges that Chief Durham, the RPD, and the City
participated
in
a
conspiracy
to
deprive
Burnley
of
his
constitutional rights.s' "To state a claim under § 1983 against a
municipality for action by a subordinate governmental entity, such
as [the] RPD, a plaintiff must plead 'the existence of an official
policy or custom that is fairly attributable to the municipality
and that proximately caused the deprivation of [his] rights.'"
Burnley v. Norwood, No. 3;10-cv-264, 2010 WL 3063779, at *5 (second
alteration in original) (quoting Jordan by Jordan v. Jackson, 15
F.3d 333, 338 (4th Cir. 1994)) ,* see also Monell v. Dep't of Soc.
Serv.,
436
U.S.
658,
690 (1978).
"Congress
did
not intend
municipalities to be held liable unless action pursuant to official
municipal policy of some nature caused a constitutional tort."
Monell, 436 U.S. at 691.
the
finding
"Thus, a prerequisite to municipal
liability
is
that an
official
policy
or
custom
existed."
Semple v. City of Moundsville, 195 F'.3d 708, 712 (4th
Cir. 1999). And, an "official policy often refers to 'formal rules
5 Burnley invokes 42 U.S.C. § 1983, but that statue does not
create any cause of action.
Rather, it provides a vehicle to
proceed in federal court to seek redress for the violations of
rights conferred by the United States Constitution or other federal
law.
See Albright v. Oliver, 510 U.S. 266, 271 (1994).
11
or understandings , . , that are intended to, and do, establish
fixed plans of action to be followed under similar circumstances
consistently and over time.'"
Id. (ellipsis in original) (quoting
Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986)).
An official
policy is ''contrasted with 'episodic exercises of discretion in
the operational details of government.'" Id. (quoting Spell v.
McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987)).
And, when a defendant is not an individual or a corporation,
the capacity to be sued must be determined by the law of the state.
Fed. R. Civ. P. 17(b)(3).
"In Virginia, an operating division of
a governmental entity cannot be sued unless the legislature has
vested the operating division with the capacity to be sued."
Muniz
V. Fairfax County Police Dep't, No. l:05-cv-466, 2005 WL 1838326,
at *2 (E.D. Va. Aug. 2, 2005).
such a capacity.
The RPD has not been vested with
Burnley v. Norwood, No. 3:10-cv-264, 2010 WL
3063779, at *5; see also Muniz, 2005 WL 1838326, at *2 ("The
Fairfax County Police Department exists as a department of the
government of Fairfax County." (citing Va. Code Ann. § 15.2-821
(2005)).
Thus, the Court will treat all claims against the City
and the RPD as against the City only.
See Burnley v. Norwood, No.
3:10-cv-264, 2010 WL 3063779, at *5.
Burnley alleges, in conclusory form, that the City had a "long
standing policy" of supporting police misconduct, but he does not
allege any facts to support that assertion.
12
Burnley's allegations
embody the exact type of conclusory allegations that the Supreme
Court has said are not sufficient to sustain an action.
Twombly
held that a complaint requires "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do."
550 U.S. at 555.
And, in Iqbal, it clarified that
a complaint "must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'"
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
There is
alleged no factual matter at all relating to what the City's policy
was or how that policy was implemented.
Instead, Burnley merely
recites the elements of a claim without any factual support as to
how the elements were satisfied by the City in this case.
Burnley
does not allege any facts that show there were "formal rules or
understandings . . . [that] establish[ed] fixed.,plans of action to
be followed under similar circumstances consistently and over
time."
Pembaur, 475 U.S. at 480.
alleges
only
an
"episodic
Instead, at most, Burnley
exercise[]
operational details of government."
of
discretion
in
Spell, 824 F.2d at 1386.
the
He
does not allege any other instances of people being harassed in a
similar manner nor of any training in which officers were told to
harass private citizens through a "laser beam" scheme in which
they monitored those persons in their homes. - Thus, his claims
against the City will be dismissed.
13
Burnley alleges that the RPD (which is part of the City, as
it cannot be sued individually) was informed by Brown of Burnley's
actions inside of his house in order to try to arrest Burnley,
used a "laser beam signal" to monitor his home, and would speak
over a police scanner about Burnley in his home and what he was
doing by using a "numbered" system to discuss the different rooms
in the house,
Compl. (ECF No. 4) KK 7, 10-11, 14, 20.
Burnley
seems to argue that this conduct showed an official policy.
But,
again, Burnley does not say what the RPD's policy was or how it
was implemented.
So, like with the claims against the City, these
claims will be dismissed.
Finally, Burnley alleges that Chief Durham was advised by
Burnley that he was being harassed by RPD officers, orchestrated
a campaign to harass Burnley, authorized Brown to wiretap Burnley's
home without probable cause, used a "laser beam signal" to spy on
Burnley, and used Coleman's car nightly from 10:00 p.m. to 2:00
a.m. to shine a spotlight in Burnley's bedroom window.
(ECF No. 4) in 1-7, 10, 13-14, 18-19, 22.
Compl.
As with his claims
against the City and the RPD, Burnley's claims against Chief Durham
fail because he does not allege any facts that show there were
"formal rules or understandings . . . [that] establish[ed] fixed
plans
of
action
to
be
followed
consistently and over time."
under
similar
circumstances
Pembaur, 475 U.S. at 480.
Instead,
at most, Burnley alleges only an "episodic exercise[] of discretion
14
in the operational details of government."
1386.
Spell, 824 F.2d at
Further, the claims against Chief Durham do not fulfill the
Supreme Court's plausibility standard set out in Twombly and Iqbal.
There is not more than "a sheer possibility" that Chief Durham
coordinated with any of these people to monitor Burnley from a
building in which Brown worked that "consisted of circuits of every
imaginable type and highly sophisticated computers that are used
by Verizon for the sole puirpose of 'intrusive hard-wire taps,"' to
spy on Burnley through the use of a "laser beam signal," or to
harass Burnley through coordinating with his neighbor to shine a
spotlight in Burnley's bedroom window every night.
No. 4) in 1-7, 10, 13-14, 18-19, 22.
Compl. (ECF
The simple fact is that, no
matter how generously construed, Burnley's fanciful, delusional
allegations about laser beams, wiretapping, and enlisting Verizon
and a neighbor to aid that effort do not pass the plausibility
standards set by Twombly and Iqbal.
factual
content
that
allows
the
Burnley fails to "plead[]
court
to
draw
the
reasonable
inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678.
2.
28 U.S.C. § 1915(e)(2)(B)(1}
Even if the Court did not dismiss the claims against the City,
the RPD, and Chief Durham under Fed. R. Civ. P. 12(b)(6), the Court
would do so under 28 U.S.C. § 1915(e)(2)(B)(i), because Burnley's
claims "describ[e] fantastic or delusional scenarios," Denton, 504
15
U.S. at 32 (quoting Neitzke, 490 U.S. at 327), and are "so nutty,
delusional, [and] wholly fanciful as to be simply unbelievable."
McLean, 566 F.3d at 399 (internal quotation marks omitted) (quoting
Gladney, 302 F.3d at 774; Denton, 504 U.S. at 29).
Burnley's
claims
are
that
the
RPD
and
Chief
At its core,
Durham
targeted
Burnley, using the RPD's limited time and resources to harass him
for no apparent reason, by wiretapping his house, using a "laser
beam signal" to monitor the inside of his home, and coordinating
with his neighbor to send "two (2) black female plain clothes
police officers" to harass him nightly.
This alleged conspiracy
exemplifies the kind of cases that federal courts are authorized
to dismiss, as it is simply an unbelievable delusion.
claims against
Chief
Durham,
the
RPD, and
the
City
So, the
would
be
dismissed on these grounds even if the Court did not dismiss the
claims under Fed. R. Civ. P. 12(b)(6)
C.
Comcast's
Motion
to
Dismiss
Under
28
U.S.C.
§ 1915(e)(2)(B)(i); Fed. R. Civ. P. 12(b)(6), and Fed.
R. Civ. P. 12(b)(1)
Burnley alleges that Chief Durham, the Unknown Officers, and
the RPD "used a technique to *infiitrate [sic] and reverse' a
(laser beam signal) through the COMCAST cablebox network that
® Because the claims against Chief Durham, the RPD, and the
City will be dismissed, the Court will also dismiss the claims
against the Unknown Officers under 28 U.S.C. § 1915(e)(2)(B)(ii)
for failing to state a claim, because no claim was made against
them that was not made against the City or the RPD.
16
allowed the [RPD] to moniter [sic] the inside of plaintiff's home
twenty-four (24) hours a day."
Compl. (ECF No. 4) H 7. He alleges
that Comcast knew of the use of this system "to video the inside
of
plaintiff's
home"
and
that
employees about this issue.
he
spoke
with
various
Comcast
Id. H 18-19.
Comcast argues that the claims against it should be dismissed
because: (1) Burnley's Complaint is frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i); (2) it fails to state a claim under Fed. R.
Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii); and (3) there
is no subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
DEFENDANT
COMCAST
CABLE
COMMUNICATIONS,
LLC'S
SUPPORT OF MOTION TO DISMISS (ECF No. 16).
MEMORANDUM
IN
The Court addresses
the issue of subject matter jurisdiction first,-because it relates
to the Court's power to hear the case.
See Arbaugh, 546 U.S. at
514.
1.
There Is No Basis For A Motion to Dismiss Based On
Lack of Subject Matter Jurisdiction
Comcast's
argument
for
why
there
is
no
subject
matter
jurisdiction is essentially that the legal claim is so meritless
that the Court lacks federal question jurisdiction.
COMCAST
CABLE
COMMUNICATIONS,
LLC'S
MEMORANDUM
MOTION TO DISMISS (ECF No. 16) at 9-10.
IN
DEFENDANT
SUPPORT
OF
Comcast relies on one
unpviblished case, Whitehead v. Paramount Pictures Corp., No. 1:08cv-792, 2009 WL 1491402 (E.D. Va. May 26, 2009), aff'd. in part
17
sub nom. Whitehead v. Paramount Pictures/ Inc., 366 F. App'x 457
(4th
Cir.
2010),
for
that
argument,
stating
that
the
court
dismissed claims related to a plaintiff alleging" that various media
companies stole his movie plots pursuant to Fed. R. Civ. P.
12(b)(1).
However, that decision was not based on subject matter
jurisdiction and never mentions Fed. R. Civ. P. 12(b)(1); instead,
it was based on a court enforcing a pre-filing injunction against
a frequent filer.
See id. at *4 ("Plaintiff is hereby enjoined
from filing any new civil actions in the Eastern District of
Virginia and from filing any new motions, papers or requests for
relief in any civil actions currently pending in the Eastern
District of Virginia without seeking and obtaining court approval
as set forth in this Court's Order . . . .").
And, the Court finds
that Comcast is trying to turn a Fed. R. Civ. P. 12(b)(6) argument
into a Fed. R. Civ. P. 12(b)(1) argument based' on the likelihood
of
the
factual
appropriate
underpinnings of
means
for
a
the
motion
for
jurisdiction under Fed. R. 12(b)(1).
claim.
lack
That is not an
of
subject
matter
Thus, the Court finds that
there is jurisdiction here.
2.
The Complaint Against Comcast Will Be Dismissed Under 28
U.S.C. § 1915(e)(2)(B)(i)
As explained above,
under
28
U.S.C.
§ 1915(e)(2)(B),
the
Court shall dismiss any case in which the action "is frivolous or
malicious" or "fails to state a claim on which relief may be
18
granted."
Section 1915(e)(2)(B)(i) permits courts to ^'pierce the
veil of the complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless."
Denton,
504 U.S. at 32 (quoting Neitzke, 490 U.S. at 327).
Claims are
frivolous
delusional
when
they
"describ[e]
fantastic
or
scenarios," id. (quoting Neitzke, 490 U.S. at 327), or are "so
nutty,
delusional,
unbelievable."
or
wholly
fanciful
as
to
be
simply
McLean, 566 F.3d at 399 (internal quotation marks
omitted) (quoting Gladney, 302 F.3d at 774; Denton, 504 U.S. at
29).
On its face, Burnley's claims against Comcast do not state a
cause of action.
Burnley's theory of the case is that Comcast
used a "laser beam signal" that allowed the RPD to infiltrate his
televisions and watch him from the inside of his house.
He does
not allege how this technology is possible or how a cable company
can monitor a person inside
microphones
installed
of
inside
his
house
Burnley's
without cameras or
televisions.
The
technology that Burnley alleges Comcast used simply does not exist,
so it is impossible that Burnley was monitored through this "laser
beam signal" technology.
and unbelievable.
Burnley's claim is fanciful, delusional,
Thus, DEFENDANT COMCAST CABLE COMMUNICATIONS,
LLC'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (ECF No. 16) will
be granted.
19
D.
Coleman's Motion to Dismiss Under 12(b)(6)
Coleman filed DEFENDANT DARSETTA COLEMAN'S MOTION TO DISMISS
(ECF No. 22).
The Court will grant the motion."
Burnley alleges that, "during the month [sic] of June and
July of 2016[,] Ms. Coleman (acted-in-concert) with Chief Durham,
the Unknown Officers, and the RPD by renting her ^personal vehicle'
a Mercedes Benz . . . to Chief Durham whom (acts-under-color-of
state-law) for an unlawful purpose."
Compl. (ECF No. 4) H 21.
He
then alleges that "two (2) black female plain clothes police
officers" from the RPD would sit in Coleman's vehicle with high
headlight beams, and Coleman "would always state in a *very loud
voice tone' . . . I will be glad when you all get [Burnley]."
H 22 (ellipsis in original).
Id.
He alleges that Coleman's conduct
violated his rights by "act[ing]-in-concert" with officials under
color of state law.
Id. f 23.
"To state a claim for relief for
such a conspiracy, the Complaint must sufficiently allege that
defendants ^acted jointly in concert and that some overt act was
done in furtherance of the conspiracy which resulted in [the
plaintiff's] deprivation of a constitutional right.'"
Burnley v.
Norwood, No. 3:10-cv-264, 2010 WL 3063779, at *7 (alteration in
original) (quoting Hinkle v. City of Clarksburg, 81 F.3d 416, 421
{4th Cir. 1996)).
A plaintiff must thus allege the deprivation of
a constitutional right.
Hinkle, 81 F.3d at 421.
20
Burnley fails to allege a constitutional" deprivation here.
He has no constitutionally protected right that prevents neighbors
from loaning out their vehicles to other people in order to flash
the headlights, nor does it prevent Coleman from loudly saying
that she wished Burnley would go to jail.
Burnley alleges that
there were two plain clothes officers who allegedly used the car
to flash the lights, but, like in Burnley v. Norwood, there is
simply
no
plausibly
pleaded
basis
for
individuals were affiliated with the RPD.
believing
that
these
Instead, assuming this
conduct happened, these individuals could have been friends of
Coleman who simply wanted to annoy Burnley.
Although he may have
some cause of action for nuisance or some other state law claim,
he does not have a claim for a constitutional" violation.
Thus,
DEFENDANT DARSETTA COLEMAN'S MOTION TO DISMISS (ECF No. 22) will
be granted.
E.
Verizon and Brown
Burnley alleges that Brown, who is a technician for Verizon,
told Burnley that he had made an initial wiretap on Burnley's home
in 2011 and that those wiretaps have been reinitiated every thirty
days up until sometime in 2018.
Compl. (ECF No. 4)
4, 10-12.
Burnley says that Brown told him about a Verizon building in which
Brown worked that "consisted of circuits of eveary imaginable type
and highly sophisticated computers that are used by Verizon for
the sole purpose of
^intrusive hard-wire taps.'"
21
Id. t 13.
Further, Burnley alleges that Brown informed Burnley about what
the RPD was trying to do to arrest Burnley.
Id. H 14.
Burnley
also alleges that he spoke with Peter Magri, who he alleges worked
at the "Verizon Corporate Security Office," about the wiretap and
that Magri told Burnley that he
would continue
to place
the
"intrusive hard-wire tap [sic]" because the RPD had ordered those
wiretaps to continue.
Id. HH 15-16.
Defendants Verizon and Keith Brown did not file motions to
dismiss.
As a result, Burnley twice moved for judgment against
both defendants.
MOTION FOR JUDGMENT BY DEFAULT {EOF No. 34);
MOTION FOR JUDGMENT BY DEMAND (EOF No. 37).
' In his BRIEF IN
SUPPORT OF MOTION FOR JUDGMENT BY DEMAND (EOF No. 38), Burnley
argues that Verizon and Brown have defaulted because they failed
to answer and because he served CT Corporation System, Verizon's
registered agent.
papers
attached
But this motion is meritless because the service
to
Burnley's
BRIEF
IN
SUPPORT
OF
MOTION
FOR
JUDGMENT BY DEMAND (ECF No. 38) clearly reflect that no service
was
made
on
either
Verizon
or
Brown.
Those
letters
from
CT
Corporation System—Verizon's registered agent—state that "CT was
unable to forward" the Complaint to Verizon because Burnley did
not provide the full name of the entity, and CT could not forward
the Complaint to Brown because it was "not the registered agent
for an entity by the name of Keith Brown."
See Exhibit 1 (ECF No.
38-1); Exhibit 2 (ECF No. 38-2); Exhibit 3 (ECF No. 38-3).
22
Thus,
there is no basis for a default judgment when the parties were not
on notice of a complaint that had been filed against them.
As for the merits of the claims against Verizon and Brown,
the Court finds that Burnley's claims against Verizon and Brown
fail under 28 U.S.C. § 1915(e)(2)(B).
First,"as with the other
defendants discussed above, Burnley's claims against Verizon and
Brown ''describ[e] fantastic [and] delusional scenarios."
504 U.S. at 32 (quoting Neitzke, 490 U.S. at 327).
a
situation
in
which
Brown
had
a
four-hour
Denton,
He describes
conversation
with
Burnley about how the RPD was trying to arrest him for some unknown
reason and that Brown gave Burnley his personal cell phone numbers
so that Brown could continue to tell him about the wiretap.
He
further says that Magri told him that the RPD had ordered the
wiretaps and that Verizon has a full building for the entire
purpose of wiretapping people like Burnley.
Like with the above-
discussed defendants and like in the other cases filed by Burnley
that this Court has dismissed, this vast alleged conspiracy to
monitor
Burnley's
delusional.
Thus,
action
his
is
unbelievable,
claims
fail
fanciful,
under
28
and
U.S.C.
§ 1915(e)(2)(B)(i).
Second, Burnley's claims fail under § 1915(e)(2)(B)(ii). The
standard for dismissing a claim pursuant to § 1915(e)(2)(B)(ii) is
the same as a dismissal under Fed. R. Civ. P. 12(b)(6), as both
allow a court to dismiss a claim for failing to state claim upon
23
which relief can be granted.
231/
See Sziobielski, 152 F. Supp. 3d at
see also Simms, 232 F.3d 889 (Table), at *1.
Here, the
Complaint does not fulfill the plausibility standard set out by
the Supreme Court in Twombly and Iqbal.
Given the most generous
reading, the Complaint asserts no more than "a sheer possibility"
that
Verizon
monitor
and
Burnley
"consisted
of
Brown
from
acted
a
circuits
with
building
of
every
the
in
RPD
and
which
Chief
Brown
imaginable
type
Durham
worked
and
to
that
highly
sophisticated computers that are used by Verizon for the sole
purpose of ^intrusive hard-wire taps.'"
Compl. (ECF No. 4) f 13.
Burnley fails to "plead[] 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.
Thus, his claims
against Verizon and Brown will be dismissed.
F.
The Civil Rights Act Of 1991 Claims
Burnley alleges that his lawsuit is being initiated under
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 171 (1991)
(codified at 42 U.S.C. § 1981a); see Compl. (ECF No. 4) at p. 3.
However, as Burnley has already been told by this Court, that
statute addresses only employment discrimination.
Norwood, No. 3:10-cv-264, 2010 WL 3063779, at *9.
Burnley v.
Because Burnley
does not allege that he was even employed by any of the defendants,
all claims under the
Civil Rights Act of
24
1991 are improper.
Indeed,
they
are
sanctionable.
Thus,
those
claims
will
be
dismissed against every defendant.
6.
Burnley Will Not Have Leave To Amend The Complaint
Finally, the Court will not give Burnley leave to amend his
Complaint.
As the Fourth Circuit has said, "[l]eave to amend need
not be given when amendment would be futile."
In re PEC Sols.,
Inc. Sec. Litig., 418 F.3d 379, 391 {4th Cir. 2005) (citing Foman
V. Davis, 371 U.S. 178, 182 (1962)).
Here, Burnley has concocted
a fanciful, delusional, conclusory story that is unsupported by
any plausible factual allegations.
Allowing amendment to the
Complaint would prejudice the defendants by having them respond to
baseless allegations.
Thus, the Court will not give Burnley leave
to amend his complaint, and dismissal of all claims will be with
prejudice.
CONCLUSION
For the foregoing reasons, DEFENDANTS ALFRED DURHAM, RICHMOND
POLICE DEPARTMENT AND CITY OF RICHMOND'S MOTION TO DISMISS PURSUANT
TO
RULE
12(b)(6)
(ECF
No.
11),
DEFENDANT
COMCAST
CABLE
COMMUNICATIONS, LLC'S MOTION TO DISMISS (ECF No. 15), and DEFENDANT
DARSETTA COLEMAN'S MOTION TO DISMISS (ECF NO. 22) will be granted
with prejudice; Burnley's MOTION FOR JUDGMENT BY DEFAULT (ECF No.
34) and MOTION FOR JUDGMENT BY DEMAND (ECF No. 37) will be denied;
the claims against Verizon and Brown will be dismissed with
prejudice under 28 U.S.C. § 1915(e)(2)(B); and the claims against
25
the Unknown Officers will be dismissed with prejudice under 28
U.S.C. § 1915(e)(2)(B)(ii) because Burnley fails to state a claim
against the RPD or the City.
The Clerk is directed to send a copy of this Memorandum
Opinion to the plaintiff.
It is so ORDERED.
/s/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date:
August _Jl_, 2019
26
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