Johnson v. Henrico County Board of Supervisors et al
Filing
43
MEMORANDUM OPINION. Signed by District Judge Roderick C. Young on 01/27/2025. (Kski, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
PATRICK BOUVIER JOHNSON,
Plaintiff,
v.
HENRICO COUNTY BOARD OF
SUPERVISORS, et al.,
Defendants.
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Civil Action No. 3:23CV679 (RCY)
MEMORANDUM OPINION
This matter is before the Court on Defendant Lisa Brown’s Motion to Dismiss.
The Court
dispenses with oral argument because the facts and contentions are adequately presented in the
materials before the Court, and oral argument would not aid in the decisional process.
Loc. Civ. R. 7(J).
E.D. Va.
For the reasons set forth below, the Court will grant the Motion to Dismiss and
dismiss the remainder of this action.
I. PROCEDURAL HISTORY
Plaintiff Patrick Bouvier Johnson filed his pro se Complaint in this Court on October 19,
2023.
ECF No. 1.
Plaintiff timely filed an Amended Complaint, ECF No. 6, on December 5,
2023, which, among other changes, added Defendant Lisa Brown to the action.
Plaintiff then
filed a Motion for Preliminary Injunction, ECF No. 13, on December 8, 2023. 1
Despite his
pursuit of injunctive relief, however, Plaintiff did not obtain a summons from the Clerk’s Office
1
Plaintiff also subsequently filed two [Motions for] Leave to File Second Amended Complaint, ECF Nos.
11, 12, which each were accompanied by a proposed amended complaint “amend[ing] minor errors and omission[s]
found in [the] first amended complaint.” Mot. for Leave 1, ECF No. 11. After Defendant Henrico County Board of
Supervisors (“Board of Supervisors” or “the Board”) filed a Response in Opposition to the proposed amendment(s),
ECF No. 17, Plaintiff filed for leave to withdraw the requests to amend, ECF No. 19, which the Court granted, see
ECF No. 21, thereby affirming the first Amended Complaint, ECF No. 6, as the operative complaint for all purposes
moving forwards.
for Defendant Brown until February 7, 2024, and he did not complete service on Defendant Brown
until April 19, 2024.
ECF No. 34.
The Court refrained from immediately engaging with Plaintiff’s Motion for Preliminary
Injunction because Plaintiff had yet to serve Defendant Brown. See Fed. R. Civ. P. 65(a)(1) “The
court may issue a preliminary injunction only on notice to the adverse party.” (emphasis added)).
On April 3, 2024, Plaintiff filed a Request for Expedited Preliminary Injunction Decision, ECF
No. 29, having still neither served Defendant Brown nor given any indication of the status of his
efforts to do so.
Given that the time to serve Defendant Brown under Federal Rule of Civil
Procedure 4(m) had then passed, the Court obliged, and on April 5, 2024, it issued an Order
Denying Plaintiff’s Motion for Preliminary Injunction, ECF No. 30, promising a full opinion to
follow.
The Court later issued that full opinion and simultaneously granted Defendant Henrico
County Board of Supervisors’ (“the Board’s”) Motion to Dismiss.
ECF Nos. 41, 42.
On April 22, 2024, after the Court denied the Motion for Preliminary Injunction, Plaintiff
filed proof of service as to Defendant Brown, indicating that she had been served on April 19,
2024. ECF No. 34. That same day, Defendant Brown appeared and filed the instant Motion to
Dismiss and Memorandum in Support thereof. ECF Nos. 32, 33. On May 6, 2024, Plaintiff
filed an “Unsworn Declaration” responding to the Motion to Dismiss, ECF No. 36, followed by a
more traditionally formatted Response to Lisa Brown’s Motion to Dismiss (“Response in
Opposition”), ECF No. 37.2
Defendant Brown filed a Reply on May 10, 2024, ECF No. 38,
rendering the Motion to Dismiss ripe for review.3
2
The Response in Opposition appears to be identical in substance to the Unsworn Declaration; it simply
changed the format of the earlier filing to that of a more traditional response brief. As such, the Court primarily
considers the latter filing, ECF No. 37, in resolving the Motion to Dismiss.
3
Plaintiff subsequently—and without seeking leave of court—filed a Second Response to Lisa Brown's
Motion to Dismiss (“Plaintiff’s Sur-Reply”), ECF No. 39, accompanied by another Unsworn Declaration (“Sur-Reply
Declaration”), ECF No. 40. The Local Rules prohibit the filing of sur-replies without leave of court. E.D. Va. Loc.
2
II. FACTUAL ALLEGATIONS
Plaintiff purchased two parcels of land in Henrico County, Virginia, in 2013, with the intent
to use the land for agricultural production.
Am. Compl. 1.
The parcels, which are located at 11
Early Avenue and 21 Early Avenue, Sandston, VA 23150, were situated in a residential area
“zoned R-3 one family residence district.” Id. at 2.
Despite this residential zoning, the property
“is designated on the comprehensive plan for Commercial Concentration”—to that effect, it is
bordered on two sides by residences and on the other two sides by businesses.
Id. The then-
applicable zoning ordinance allowed “‘farming’ as a principal permitted use in the R-0 through R4A One [F]amily Residence Districts.” Id.
Based on this zoning, Plaintiff mailed the Henrico
County Planning Department notice of his intended farming-oriented changes to the property and,
after receiving no response, began clearing the property in August of 2014. Id. at 4–5. Plaintiff
has been growing fruits and vegetables on the land (hereinafter, “Farm”) since that time. Id. at
4, ¶ 1.
Plaintiff’s Farm began receiving negative attention from the County in approximately
2019, when Plaintiff received a call from County Manager John Vithoulkas, who stated that he
was going to condemn Plaintiff’s Farm.
Id. ¶ 2.
Plaintiff asked for a meeting with Mr.
Vithoulkas, and at the subsequent meeting he discussed with Mr. Vithoulkas the fact that there was
no evidence that Plaintiff’s Farm was negatively impacting property values in the area. Id.
Also
in 2019, Plaintiff met with then-Chairman of the Henrico County Board of Supervisors (“Board”),
Civ. R. 7(F)(1) (“No further briefs or written communications may be filed without first obtaining leave of Court.”).
“Sur-replies . . . are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last
word on the matter.” Trs. of Columbia Univ. v. Symantec Corp., 2019 WL 13189619, at *2 (E.D. Va. Oct. 10, 2019).
“Generally, courts allow a party to file a sur-reply only when fairness dictates based on new arguments raised in the
previous reply.” Dillard v. Kolongo, 2017 WL 2312988, at *6 (E.D. Va. May 25, 2017). Although this Court
recognizes Plaintiff’s pro se status, Plaintiff is nevertheless obligated to abide by the Local Rules. In any event,
Defendant Brown’s Reply to Plaintiff’s Response to the Motion to Dismiss introduced no new arguments or new
material for which a sur-reply would be warranted. Accordingly, this Court will not consider Plaintiff’s Sur-Reply.
3
Tyrone Nelson, and the Board representative for the district encompassing Plaintiff’s Farm, to
discuss various “abuses [Plaintiff] had suffered,” to include: “illegal actions by the police,
Community Revitalization official giving the Plaintiff false and misleading information; refusal of
Planning and Zoning official to answer questions as to how the property could be developed as an
agricultural property; harassing phone calls [and] false complaints from neighbors” and “white
supremacists.”
Id. ¶ 3; Am. Compl. Ex. B, ECF No. 6-2.
Plaintiff also “inquir[ed] about
changes to zoning that could affect [his] ability to use the property.” Id.
Plaintiff’s takeaway
from this meeting was that there would be no zoning changes that would hinder his ability to use
his property for agriculture, and he could complete any project he started prior to any zoning
changes. Am. Compl. Ex. B.
No further action was taken by the County or the Board at that
time. See generally id.
In April of 2021, Plaintiff met with Mr. Vithoulkas and Joseph Emerson, Director of
Planning, at which time Mr. Emerson “confirmed that the property was being used for Agriculture”
and that the zoning permitted “up to 7200 square[foot] agricultural structures per parcel without a
permit.” Am. Compl. 5, ¶ 4. Mr. Vithoulkas “also stated that the Plaintiff could install a gravel
parking lot and sell produce from the property. . . . [and] that the Plaintiff would not have to install
a convert[,] which was in keeping with other businesses in the area.” Id.
On September 1, 2021, a new Henrico County Zoning Ordinance took effect. See, e.g.,
id. ¶ 16; see also Zoning Ordinance, Henrico County Code §§ 24-1101 through 24-8501, available
at https://henrico.us/pdfs/countyattorney/Chpt024Zoning.pdf 4 (showing “Effective” date of
4
“A district court may clearly take judicial notice of . . . public records,” Witthohn v. Fed. Ins. Co., 164 F.
App’x 395, 397 (4th Cir. 2006) (affirming the review and consideration of state court records on a motion to dismiss),
and may otherwise consider on a 12(b)(6) analysis documents incorporated into the complaint, Tellabs, Inc. v. Makor
Issues & Rights, 551 U.S. 308, 322 (2007), and documents that are “integral to and explicitly relied on in the
complaint,” Phillips v. LCI Int’l, 190 F.3d 609, 618 (4th Cir. 1999), even if the plaintiff failed to attach such
documents. The Court finds this municipal zoning ordinance to constitute a public record. In the alternative, it is
integral to Plaintiff’s Amended Complaint, insofar as the alleged zoning changes give rise to Plaintiff’s claims.
4
September 1, 2021). Whereas the prior zoning ordinance included “farming” among the “allowed
uses” for R-3 One-Family Residence District properties, see Am. Compl. 2, the 2021 revised
ordinance only lists “one-family dwellings” and “supporting institutional, recreational, and public
facilities and uses” as “[a]llowed uses” in the R-3 zone. Zoning Ordinance § 24-3309(A).
In March of 2022, Plaintiff began receiving Notices of Violation (“NOVs”) from Henrico
County. Am. Compl. 6, ¶ 5. Plaintiff successfully disputed two of the NOVs: one for having
left bags of leaves out (which Plaintiff was reserving for later use as organic mulch), and one for
having logs lying about the property (which Plaintiff was using to grow mushrooms). Id. Later
in 2022, however, Plaintiff received another NOV, this one for having “building materials” on the
property.
Id. ¶ 6.
Plaintiff attempted to dispute this NOV with Community Maintenance
Inspector Jason Alexander, arguing that he needed the materials for farm and equipment
maintenance and proposing that he build temporary structures to house the building materials. Id.
This proposal was rejected, however, and Mr. Alexander told Plaintiff that “[he] was not allowed
to build anything.” Id.
Plaintiff subsequently “moved the items in question” and did not
construct the proposed structures, but it appears that the Farm remained in noncompliance and
Plaintiff “was taken to Henrico County District Court in May of 2022.” Id.
While the General District Court matter (concerning the building materials issue) was
pending, Plaintiff received another NOV, this time for his fence—specifically concerning its
height, setback, and construction-material deficiencies. Id. ¶ 7; see also Am. Compl. Ex. A, ECF
No. 6-1 (Sept. 30, 2022 Letter to Plaintiff).
Plaintiff met with County representatives on
September 21, 2022, about the “outstanding violations.” Am. Compl. Ex. A. The September 30,
2022 letter sent in follow-up to this meeting set out the applicable zoning ordinances, including a
recognition that “[f]encing built prior to September 1, 2021, is subject to . . . the previous zoning
5
ordinance,” and it cautioned that this ordinance applied “regardless of the permitted agricultural
use.” Id. It further reiterated to Plaintiff that “outside storage of unused items is prohibited, and
the fence located in the front yard will need to be shortened, moved to the side yard, or removed
altogether to bring the [Farm] into compliance with the Henrico County code.” Id.
Plaintiff asserts that, when he ultimately appeared in General District Court on the building
materials violation, the presiding judge informed Plaintiff that, contrary to the statement by the
Community Maintenance Inspector, Plaintiff could build structures and further “encouraged the
Plaintiff to do so.” Am. Compl. 7, ¶ 7 (emphasis added). According to Plaintiff, “[t]he case
against [him] was eventually dismissed.” Id.; see also Case Details, Case No. GC22018403-00
(Henrico Cnty. Gen. Dist. Ct., May 4, 2022).5 In reliance on the statements from the General
District Court judge, Plaintiff constructed two temporary sheds and accepted funding from the
Natural Resource Conservation Service (NRCS) to construct a “high tunnel.”6 Am. Compl. 7,
¶ 7.
It was at the time Plaintiff began constructing the high tunnel that he learned7 “that Henrico
had changed his zoning from an agricultural use to nonconforming use.” Id. Plaintiff alleges
that he received no prior notification of the zoning change. Id. ¶ 20. At a subsequent Board of
Zoning Appeals (“BZA”) hearing on July 27, 2023, Henrico County Zoning Administrator
Benjamin W. Blankenship commented that Plaintiff’s Farm was in an area that had been “zoned
‘commercial concentration’” since 2009.
Id. ¶ 8.
Plaintiff asserts that this statement is
5
The Court properly takes judicial notice of these state court records and any other state court records cited
infra. Witthohn, 164 F. App’x at 397.
6
Plaintiff represents a high tunnel to be a “greenhouse-like structure.” Am. Compl. 7, ¶ 7.
7
Although the Complaint is not explicit, the Court infers that Plaintiff “found out” about the alleged zoning
change through receipt of another NOV challenging his construction of the high tunnel and/or other structures. See
id. (“Plaintiff has appealed both the having to remove the fence and the other structures to the Board of Zoning Appeals
and currently to Henrico Circuit Court.”); see also id. at 11, ¶ 15 (“. . . the subject comparison property . . . has not
been ordered or asked to remove or tear down its agricultural structures.”).
6
“outrageous and erroneous.” Id. Plaintiff appealed the BZA’s ultimate July 27, 2023 decision,
as well as an earlier decision from April, to the Henrico County Circuit Court.8 Id. ¶ 7; see also
Case Details, IN RE: April 27, 2023 Decision, Case No. CL23003794-00 (Henrico Cnty. Cir. Ct.,
May 26, 2023); Case Details, IN RE: July 27, 2023 Decision, Case No. CL23005834-00 (Henrico
Cnty. Cir. Ct., Aug. 25, 2023).
These appeals were not resolved until spring of 2024,
approximately five months after Plaintiff filed the instant suit. See Case Details, IN RE: April 27,
2023 Decision (February 9, 2024 dismissal); Case Details, IN RE: July 27, 2023 Decision (March
22, 2024 dismissal).
Separate from his issues with the Board and zoning, Plaintiff alleges various interactions
with local police, as well as instances of unwarranted police surveillance of his property in 2015
and 2022. Id. ¶¶ 9–10. In 2015, a neighbor informed Plaintiff that “he saw Mr. Russell Teague9
standing with a police officer on the street outside the Plaintiff[’s] farm pointing at the main farm
building. Later that same week, the Plaintiff observed the police watching the property.” Id.
¶ 9.
A police lieutenant subsequently informed Plaintiff that the Farm had “been under
surveillance and that no crime was being committed at the premises.” Id. With respect to the
2022 incident, Plaintiff observed “a large bus type vehicle coming through the neighborhood . . . .
The driver of the vehicle would honk[] a loud disturbing horn and on several occasions the Plaintiff
notice[d] what appeared to be a single passenger of the vehicle wave at [him].” Id. ¶ 10. Plaintiff
further observed this vehicle parked in the driveway of a neighbor who had been particularly
outspoken in complaining about Plaintiff’s farming—Defendant Lisa Brown. Id.
8
The Court is unclear from Plaintiff’s Complaint and from available state court records which proceeding
related to which NOV, but it can discern that, of the two appeals, one related to the fence issues and the other to
Plaintiff’s building activities.
9
While it is unclear what position Mr. Teague may have held at the time of this incident, he appears to
currently serve as an Existing Structures Inspector for Henrico County. See Henrico County–Building Inspections
Department–Staff Contact List, available at https://henrico.us/bldg/personnel/.
7
Specific to Defendant Brown, Plaintiff alleges that she is the neighbor who has “done the
most complaining about the [F]arm.” Id.; see also Am. Compl. Ex. B, ECF No. 6-2. Plaintiff
alleges that he observed the allegedly intimidating vehicle described above parked in Brown’s
driveway twice. Am. Compl. ¶ 10. He further alleges that the rezoning that occurred in 2021
“was a hate driven de jure discrimination, without basis in law or fact, and the culmination of a
conspiracy by the defendants with a group of ‘neighbors’ led by []Defendant Lisa Brown and other
currently unnamed co-conspirators.” Id. ¶ 16; see also id. ¶ 19. Plaintiff further alleges that
“Defendant Lisa Brown, through meetings with neighbors and Henrico County Official[s]”
fraudulently induced said neighbors to join a conspiracy against Plaintiff “by stating the Plaintiff
‘stole’ a portion of the Plaintiff[’s] land from her.” Id. ¶ 18. “Using fraud and false claims
Defendant Brown convinced neighbors to pressure county officials to use the police power of the
state to harass and intimidate the Plaintiff in a campaign to dislodge or interfere with the free
exercise of Plaintiff[’s] property rights.” Id. Plaintiff asserts that individuals with Henrico
County harassed him “to appease the hate driven Defendant Lisa Brown.” Id. ¶ 28.
III. STANDARD OF REVIEW
A.
12(b)(5) – Insufficient Service of Process
Rule 12(b)(5) provides the appropriate vehicle for a claim of untimely service. Fuller v.
Aliff, 2014 WL 12918937, at *3 (E.D. Va. Apr. 16, 2014); Fed. R. Civ. P. 12(b)(5). A court ruling
on a motion to dismiss pursuant to Rule 12(b)(5) should rely on the same principles that govern
Rule 4. Fuller, 2014 WL 12918937, at *3 (citing 5B Charles Allen Wright & Arthur R. Miller,
Federal Practice and Procedure § 1353 (3d ed. 2004)).
8
B.
12(b)(6) – Failure to State a Claim
A motion to dismiss under Federal Rule 12(b)(6) should be granted if a complaint fails to
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A Rule 12(b)(6) motion “tests the sufficiency of a complaint
and ‘does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.’” Johnson, 682 F. Supp. 2d at 567 (quoting Republican Party of N.C. v. Martin, 980
F.2d 943, 952 (4th Cir. 1992)). As such, the Court must accept all factual allegations contained
in a complaint as true and draw all reasonable inferences in favor of the plaintiff. Id. However,
pleadings that offer simply “labels and conclusions” or “a formulaic recitation of the elements of
a cause of action” are insufficient to state a claim for relief. Twombly, 550 U.S. at 555.
Generally, the Court does not contemplate extrinsic material when evaluating a complaint
on a motion to dismiss.
However, the Court may consider documents incorporated into the
complaint, Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), matters of public
record subject to judicial notice, Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009), and it may also consider any documents attached to the motion to dismiss if those
documents are essential to the plaintiff’s claims or are “sufficiently referred to in the complaint,”
as long as there is no challenge of their authenticity. Witthohn v. Fed. Ins. Co., 164 F. App’x
395, 396–97 (4th Cir. 2006).
Moreover, where a plaintiff attaches or incorporates a document
into their complaint, it is proper to accept the contents of the document(s) over conflicting
allegations in the Complaint. Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 234–35 (4th
Cir. 2004).
9
And, though it is true that pleadings by pro se plaintiffs must be held to a less stringent
standard than those drafted by lawyers, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the pleadings
must nevertheless set forth enough facts to state a claim.
IV. ANALYSIS
A. Insufficient Service
As cited above, a motion to dismiss under Rule 12(b)(5) incorporates the standards of Rule
4.
Rule 4(m) controls the time for service of process, and provides in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Accordingly, Rule 4(m) makes “unambiguously clear” that even if a
plaintiff fails to serve process within 90 days, the Court must extend the time for service of process
if the plaintiff can show good cause for the failure. Robinson v. GDC, Inc., 193 F. Supp. 3d 577,
580 (E.D. Va. 2016). Moreover, even absent a showing of good cause, the Court may, in its
discretion, extend the time for service of process. Id. at 583.
When making a good cause determination, courts will examine several relevant factors.
Id. (citing Madden v. Texas, 498 U.S. 1301, 1305 (1991)).
Those factors include:
(i) the
possibility of prejudice to the defendant, (ii) the length of the delay and its impact on the
proceedings, (iii) the reason(s) for the delay and whether the delay was within the plaintiff’s
control, (iv) whether the plaintiff sought an extension before the deadline, (v) the plaintiff’s good
faith, (vi) the plaintiff’s pro se status, (vii) any prejudice to the plaintiff, such as by operation of
statutes of limitation that may bar refiling, and (viii) whether time has previously been extended.
Id. (citing Kurka v. Iowa Cnty., 628 F.3d 953, 959 (8th Cir. 2010); Newby v. Enron Corp., 284 F.
10
App’x 146, 149–51 (5th Cir. 2008); Carter v. Keystone, 278 F. App’x 141, 142 (3d Cir. 2008);
Melton v. Wiley, 262 F. App’x 921, 924 (11th Cir. 2008)).
Here, the Court finds in its discretion that good cause warrants extending the service
deadline, because the relevant factors weigh in Plaintiff’s favor.
prejudiced Brown.
First, the delay has not
When Plaintiff served Brown, the Court had not made any rulings in this case
detrimental to Brown.
Moreover, Brown has not alleged any prejudice to her ability to litigate
this case. Additionally, it is not clear that the bulk of the delay is Plaintiff’s fault, as it does not
appear that summonses were issued by the Clerk’s Office until February, almost two months after
Plaintiff filed his Amended Complaint. See ECF No. 28. Beyond that delay, Plaintiff appears
to have exercised at least some diligence in attempting to identify a process server, Pl.’s Resp.
Opp’n 5, even if it was not the seemingly simple alternative avenue Defendant identified in her
Reply, see Reply 2.
With respect to the remaining factors, the Court observes that Plaintiff is pro
se, and further that, during the expiration of the period for service, Plaintiff was attempting to
amend his complaint yet again, and—particularly given his pro se status—it is not unreasonable
that he may have experienced confusion, rightly or wrongly, related to whether his pending
motion(s) to amend tolled the period for service. Accordingly, the Court will not dismiss the
Complaint as to Brown based on the delay in service.
B. Failure to State a Claim
Plaintiff’s Amended Complaint sets out the following as his “Legal Claims”: (1) a
Fourteenth Amendment Equal Protection claim, Am. Compl. ¶¶ 11–15; (2) a Fourteenth
Amendment Substantive Due Process claim, id. ¶ 16; (3) a claim for “conspiracy against rights,”
citing 18 U.S.C. § 241, id. ¶¶ 17–18; (4) a “business conspiracy” claim, id. ¶ 19; and (5) a
Procedural Due Process claim, id. ¶¶ 20–26. In line with the very first sentence of the Amended
11
Complaint, the Court construes Plaintiff’s equal protection and due process claims as claims
brought pursuant to 42 U.S.C. § 1983, which is the vehicle by which an individual may sue state
actors for violations of constitutional rights. See Am. Compl. at 1 (“Comes now Plaintiff Patrick
Johnson, pursuant to 42 U.S.C. § 1983, and files this Complaint . . . .”). And while Plaintiff cites
an inapposite criminal statute as the basis for his “conspiracy against rights” claim and no legal
basis whatsoever for his “business conspiracy” claim, out of deference to his pro se status, the
Court construes these as claims brought pursuant to 42 U.S.C. § 1985(3), which creates a private
right of action for individuals who suffer from a conspiracy to deprive them of the equal protection
of the laws.10
As Defendant Brown aptly points out, relief via § 1983 is not available against her, as she
is not a state actor. Mem. Supp. Mot. Dismiss 3. Thus, the only two discernable claims that
could possibly stand against her are the two conspiracy claims the Court construes as lodged under
§ 1985. For the reasons set forth below, however, the Court agrees that Plaintiff has failed to state
a claim against Brown on either count of conspiracy, and so the Court will grant the Motion to
Dismiss on 12(b)(6) grounds.
1. Statute of Limitations
Defendant Brown first adopts the argument of (now former) Defendant Board of
Supervisors that Plaintiff’s claims are barred by the applicable statute of limitations. For the
reasons articulated in detail in its prior opinion denying Plaintiff’s Motion for Preliminary
Injunction and granting the Board’s Motion to Dismiss, the Court declines to grant Brown’s
10
Although Plaintiff does not explicitly rely on 42 U.S.C. § 1985 in his Amended Complaint, in his Response
in Opposition, Plaintiff clarifies that he “alleges that the Defendant have engaged in a conspiracy as described in 42
U.S.C. § 1985(3).” Pl.’s Resp. Opp’n 2–3. And while a party generally may not amend their complaint through
subsequent briefing, see Hurst v. District of Columbia, 681 F. App’x 186, 194 (4th Cir. 2017), out of deference to
Plaintiff’s pro se status and for ease of analysis the Court will accept and apply the § 1985 legal framework to these
conspiracy claims.
12
Motion to Dismiss on this ground, finding that it is not apparent on the face of the Amended
Complaint that the statute of limitations had expired as of the date Plaintiff brought suit. See
Mem. Op., Johnson v. Henrico Cnty. Bd. of Supervisors, 2024 U.S. Dist. LEXIS 176092, at *16–
19, __ F. Supp. 3d. __ (E.D. Va. Sept. 27, 2024), ECF No. 41.
2. Failure to State a Claim
The Court turns next to Defendant’s argument that Plaintiff has failed to state any claim on
which relief may be granted. For the same reasons the Court already articulated in its prior
opinion granting the Board’s Motion to Dismiss, the Court will similarly grant Brown’s Motion to
Dismiss.11
In the Amended Complaint, Plaintiff appears to rest his third cause of action, “Conspiracy
Against Rights,” on 18 U.S.C. § 241, a criminal statute, while his fourth cause of action, “Business
Conspiracy,” contains no cited basis in law. Am. Compl. 12, ¶¶ 17–19. Plaintiff cannot base a
civil cause of action on a criminal statute. See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir.
1990) (“No citizen has an enforceable right to institute a criminal prosecution.”); see also Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable
interest in the [criminal] prosecution or nonprosecution of another.”).
In seeming
acknowledgment of this, Plaintiff endeavors to convert the conspiracy claims into claims premised
on 42 U.S.C. § 1985(3). See Pl.’s Resp. Opp’n 2–3. And though a party generally may not
amend their complaint through subsequent briefing, see Hurst v. District of Columbia, 681 F.
App’x 186, 194 (4th Cir. 2017), the Court gives Plaintiff’s Amended Complaint the “liberal”
construction it is due, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and in so doing will accept and
11
As previously mentioned, Plaintiff’s first, second, and fifth causes of action, as § 1983 claims, are
inapplicable to Defendant Lisa Brown, a private citizen. The Court’s analysis therefore focuses on Plaintiff’s third
and fourth causes of action.
13
apply the § 1985 legal framework for these claims. Even with this liberal construction, however,
the Court does not find that Plaintiff has stated a claim on either count.
Section 1985 of the United States Code, Chapter 42, provides a cause of action for
individuals who have been the subject of a conspiracy to deprive them of the equal protection of
the laws of the United States. To establish a cause of action under § 1985(3), a plaintiff must
allege:
(1) a conspiracy of two or more persons, (2) who are motivated by a specific classbased, invidiously discriminatory animus to (3) deprive the plaintiff of the equal
enjoyment of rights secured by the law to all, (4) and which results in injury to the
plaintiff as (5) a consequence of an overt act committed by the defendants in
connection with the conspiracy. Moreover, the law is well settled that to prove a
section 1985 ‘conspiracy,’ a claimant must show an agreement or a ‘meeting of the
minds’ by defendants to violate the claimant’s constitutional rights.
Simmons v. Poe, 47 F.3d 1370, 1376–77 (4th Cir. 1995) (citations omitted). The Fourth Circuit
has further elaborated on the level of specificity required to sufficiently plead a conspiracy:
[W]here a conspiracy is alleged, the plaintiff must plead facts amounting to more
than “parallel conduct and a bare assertion of conspiracy . . . . Without more,
parallel conduct does not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply facts adequate to show
illegality.” The factual allegations must plausibly suggest agreement, rather than
being merely consistent with agreement.
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (omission in original)
(quoting Twombly, 550 U.S. at 556–57).
Here, Plaintiff asserts that Defendant Lisa Brown, Plaintiff’s neighbor, “convinced
neighbors to pressure county officials to use the police power of the state to harass and intimidate
the Plaintiff in a campaign to dislodge or interfere with the free exercise of Plaintiff[’s] property
rights.” Am. Compl. 12, ¶ 18. Plaintiff claims that the rezoning that occurred in 2021, which
resulted in his subsequent receipt of various NOVs, “was a hate driven de jure discrimination,
without basis in law or fact, and the culmination of a conspiracy by the defendants with a group of
14
‘neighbors’ led by []Defendant Lisa Brown and other currently unnamed co-conspirators.” Id. ¶
16. He alleges that Defendant Brown fraudulently induced said neighbors to join into the alleged
conspiracy against Plaintiff “by stating the Plaintiff ‘stole’ a portion of the Plaintiff[’s] land from
her.” Id. ¶ 18.
Critically, Plaintiff’s allegations lack any reference to Defendant Brown—or any other
party—being “motivated by a specific class-based, invidiously discriminatory animus.”
Simmons, 47 F.3d at 1376–77. The block-quoted excerpt from the BZA Minutes that Plaintiff
provides in support of his conspiracy claim in fact undermines any argument for specific animus,
in that it references acknowledgment by Plaintiff’s neighbors “that [Plaintiff’s] ‘[F]arm’ would not
be affected by the change because it was established before the Zoning Ordinance was changed
. . . .” Am. Compl. 13, ¶ 19 (emphasis added). Plaintiff’s allegations of “de jure discrimination”
are conclusory and unsupported by any other factual allegations, and are thus not entitled to a
presumption of truth.12
Even assuming arguendo that the Court considered and deemed sufficient the race-based
allegations Plaintiff raises in his Response in Opposition to the Motion to Dismiss, his claims
would still be deficient, because he also fails to allege facts to show the required “meeting of the
minds.” Simmons, 47 F.3d at 1377. His allegations concerning Defendant Brown relative to
other neighbors and/or the Board of Supervisors are highly conclusory, and the fact that a bus
drove by his property when he was there and honked, and that someone on the bus waved in his
12
The Court acknowledges that Plaintiff attempts to inject additional facts by way of his response to the
Motion to Dismiss concerning his race and further statements by Defendant Brown that Plaintiff “stole” her land.
Pl.’s Resp. Opp’n 2, ECF No. 37. However, Plaintiff cannot expand his allegations by way of a response to a motion
to dismiss. See Hurst v. District of Columbia, 681 F. App’x 186, 194 (4th Cir. 2017) (holding that “a plaintiff may
not amend her complaint via briefing”) (citing Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181
(3d Cir. 1988)); see also Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
15
direction, only amount, without more, to the mere “parallel conduct” that does not adequately
support an allegation of conspiracy. A Soc’y Without A Name, 655 F.3d at 346.
All told, Plaintiff ’s allegations in Counts Three and Four fail to state any cognizable claim
for conspiracy, and Plaintiff therefore has failed to state a claim on these counts.
V.
CONCLUSION
For the reasons set forth above, the Court will grant Defendant Brown’s Motion to Dismiss
for failure to state a claim. Because this disposes of the remaining claims in this action, the Court
will further dismiss the action in its entirety.13
An appropriate Order shall accompany this Memorandum Opinion.
/s//
Roderick C. Youngg
United States District Judge
Date: January 27, 2025
Richmond, Virginia
13
The Court previously denied Plaintiff leave to amend. Mem. Op., Johnson v. Henrico Cnty. Bd. of
Supervisors, 2024 U.S. Dist. LEXIS 176092, at *40–43, __ F. Supp. 3d. at __, ECF No. 41. That rationale applies
with equal force here, even absent a pending motion or specific request for leave to do so.
16
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