Hales v. City of Newport News et al
Filing
17
OPINION AND ORDER that the motion to dismiss filed by the City Defendants is GRANTED in its entirety. The motion to dismiss filed by Gayle is GRANTED as to all counts in the Complaint except the portion of Count Seven alleging § 1983 bystander l iability regarding Plaintiffs arrest; Gayles motion is DENIED with respect to such claim. Officer Briggs motion to dismiss is GRANTED with respect to Counts One and Two, DENIED as to Counts Three, Four, Five and Seven, and GRANTED in part and DENIED in part as to Count Six. Signed by District Judge Mark S. Davis and filed on 9/30/2011. (rsim)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Newport News Division
PEGGY A. HALES,
Plaintiff,
v.
Civil Action No. 4:11cv28
CITY OF NEWPORT NEWS,
JAMES D. FOX,
Newport News Chief of Police,
NEIL A. MORGAN,
Newport News City Manager,
OFFICER JUSTIN E. BRIGGS,
OFFICER DARRYL J. JOHNSON,
and
SGT. J. F. GAYLE,
Defendants.
OPINION AND ORDER
This matter is before the Court on a motion to dismiss
filed by defendants City of Newport News (the ―City‖), Newport
News Chief of Police James D. Fox (―Fox‖), Newport News City
Manager Neil A. Morgan (―Morgan,‖ and
collectively with the
City and Fox, the ―City Defendants‖), as well as motions to
dismiss
filed
(―Gayle‖),
and
by
Newport
Newport
News
News
Police
Police
Sergeant
Officer
Justin
J.F.
Gayle
E.
Briggs
(―Briggs‖).1
Court
After examination of the briefs and the record, the
determines
that
a
hearing
on
the
instant
motions
is
unnecessary, as the facts and legal arguments are adequately
presented,
and
the
decisional
significantly by oral argument.
Loc. Civ. R. 7(J).
process
would
not
be
aided
Fed. R. Civ. P. 78(b); E.D. Va.
For the reasons stated herein, the Court
GRANTS the City Defendants‘ motion to dismiss in its entirety,
and
GRANTS
IN
PART
AND
DENIES
IN
PART
Gayle‘s
and
Briggs‘
dispute
between
motions to dismiss.
I.
This
matter
FACTUAL ALLEGATIONS2
arises
out
of
a
domestic
Plaintiff and her husband, occurring on or about September 27,
2009.
While
Plaintiff‘s
husband
was
watching
television,
Plaintiff‘s cat knocked over her husband‘s mixed drink.
An
argument between the spouses ensued, ending when Mr. Hales left
the residence on his motorcycle.
Mr.
Hales
returned
approximately
1
thirty
minutes
later
There is no indication in the record that Officer Darryl J.
Johnson, listed as a defendant in the Complaint, has ever been
served in this case.
2
The facts recited herein are drawn from Plaintiff‘s Complaint.
Such factual allegations are assumed true for the purpose of
deciding the instant motions, but do not constitute factual
findings for any other purpose.
See, e.g., Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009)
(―[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court
accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint.‖).
2
accompanied by defendants Sergeant Gayle, Officer Briggs, and
Officer Johnson.
The police explained to Plaintiff that Mr.
Hales had come to collect his guns and clothing and that he
wished to leave the residence.
Plaintiff asked to speak with
Mr. Hales, but the police repeated that he wished to leave the
residence, whereupon Plaintiff shut and locked the front door,
barricaded the front door with a chair, and proceeded to lock
the other doors.
Mr. Hales thereafter retrieved a crowbar from
a shed and used it to forcibly open the rear sliding glass door
of the residence.
Plaintiff asserts that she then ―attempted to
calm [Mr. Hales] down, stating, ‗Honey, please don’t do this’,
and she reached over and touched [Mr. Hales]‘s left wrist with
her right hand in a non-threatening manner, whereupon one of the
Officers said, ‗That‘s an assault and batter.‘‖
Compl. ¶ 10.
Plaintiff further alleges that then, ―[w]ithout warning or
prior
notice,
OFFICER
BRIGGS
handcuffed
[Plaintiff‘s]
behind her back and placed her in a police cruiser.‖
hands
Id. ¶ 11.
Plaintiff ―immediately complained that the handcuffs were too
tight on her right wrist and that the circulation on her right
wrist and hand was being cut off, resulting in numbness in her
right hand and fingers.‖
Id.
Plaintiff ―continued to complain
while en route to the police station; however, her complaints
were ignored.‖
Id.
3
Although Plaintiff repeatedly ―begged‖ Officer Briggs to
remove
or
loosen
the
handcuffs,
Officer
Briggs
―ignored
her
requests, and [Plaintiff] was placed in a holding cell and left
in handcuffs for approximately thirty (30) minutes.‖
Id. ¶ 12.
Thereafter, ―upon appearing before the Magistrate, the handcuffs
were removed.‖
Id.
Plaintiff was charged in state court with
―assault and batter,‖ was released on bond, and her criminal
charge was ultimately dismissed.
Id. ¶ 13.
plaintiff‘s
use
arrest
and
Briggs‘
of
As a result of
excessively
tight
handcuffs, Plaintiff ―sustained serious physical injuries and
permanent injuries,‖ required and will in the future require
doctor and hospital expenses, became ―lame, sick and disabled,‖
and lost ―time and income from her gainful employment.‖
Id. ¶
32.
II.
PROCEDURAL HISTORY
Plaintiff filed her Complaint in the Circuit Court for the
City of Newport News, Virginia, on or around December 28, 2010,
alleging causes of action for: (1) deprivation of civil rights
under
color
emotional
of
state
distress;
(3)
law;
(2)
assault;
intentional
(4)
infliction
battery;
(5)
of
false
imprisonment; (6) negligence and/or gross negligence; and (7)
violation of constitutional rights pursuant to 42 U.S.C. § 1983.
Plaintiff seeks $100,000 in compensatory damages and $300,000 in
4
punitive damages against all Defendants, jointly and severally,
with interest, and demands a trial by jury.
The City Defendants, with the consent of Gayle and Briggs,
removed the matter to this Court on February 2, 2011, invoking
this
Court‘s
subject-matter
jurisdiction
over
Plaintiff‘s
constitutional and civil-rights claims pursuant to 28 U.S.C. §
1441.3
The City Defendants filed their motion to dismiss on that
same day, and Sergeant Gayle filed his motion to dismiss on
February 3, 2011.
Officer Briggs filed his motion to dismiss,
along with an answer, on February 21, 2011.4
Plaintiff filed
responses in opposition to the dismissal motions, and all such
motions are now ripe for review.
III. STANDARD OF REVIEW
A.
Rule 12(b)(6)
Rule 12(b)(6) permits a defendant to move for dismissal if
the plaintiff has failed to state a claim upon which relief can
be granted.
Fed. R. Civ. P. 12(b)(6).
In assessing such a
motion, a district court must ―assume the truth of all facts
3
The City Defendants‘ notice of removal alleges that ―[u]pon
information and belief, Officer Darryl J. Johnson has not been
served and the return of service came back ‗Not Found.‘‖
(Removal Notice ¶ 1, Dkt. No. 1).
Officer Johnson has made no
appearance in this matter since its removal.
4
Since Officer Briggs filed an answer contemporaneously with his
motion, the motion is properly regarded not as a motion to
dismiss pursuant to Rule 12(b)(6), but instead as a motion for
judgment on the pleadings pursuant to Rule 12(c). See Walker v.
Kelly, 589 F.3d 127, 139 (4th Cir. 2009).
5
alleged in the complaint and the existence of any fact that can
be proved, consistent with the complaint‘s allegations.‖
E.
Shore Mkts., Inc. v. J.D. Assocs. Ltd. P‘ship, 213 F.3d 175, 180
(4th Cir. 2000).
in
the
light
While a district court must construe the facts
most
favorable
to
the
plaintiff,
it
obligated to accept a complaint‘s legal conclusions.
is
not
See Schatz
v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991).
Construing the factual allegations in plaintiff‘s favor, a
complaint must be dismissed if it does not allege ―enough facts
to state a claim to relief that is plausible on its face.‖
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007);
Bell
accord
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
satisfy
such
plausibility
standard
a
plaintiff‘s
To
―[f]actual
allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).‖
550
U.S.
at
555
(internal
citation
omitted).
Twombly,
―Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice‖ to survive a motion to
dismiss.
Francis
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see
v.
Giacomelli,
588
F.3d
186,
193
(4th
Cir.
2009)
(quoting Twombly, 550 U.S. at 555) (―‗[N]aked assertions‘ of
wrongdoing
necessitate
some
‗factual
6
enhancement‘
within
the
complaint
to
cross
‗the
line
between
possibility
and
plausibility of entitlement to relief.‘‖).
As always, the above standard is applied in light of Rule
8(a)‘s requirement of only ―a short and plain statement of the
claim showing that the pleader is entitled to relief.‖
Civ. P. 8(a)(2).
Fed. R.
However, although Rule 8(a) ―marks a notable
and generous departure from the hyper-technical, code-pleading
regime of a prior era, . . . it does not unlock the doors of
discovery
for
conclusions.‖
a
plaintiff
armed
with
nothing
more
than
Iqbal, 129 S. Ct. at 1950.
B.
Rule 12(c)
Rule 12(c) provides that ―[a]fter the pleadings are closed—
but
early
enough
not
to
delay
judgment on the pleadings.‖
trial—a
party
may
Fed. R. Civ. P. 12(c).
move
for
As noted
above, although Officer Briggs‘ motion was filed pursuant to
Rule 12(b)(6), it is properly considered a motion pursuant to
Rule 12(c) because an answer was filed contemporaneously with
such motion.
2009).
Court‘s
motion
Walker v. Kelly, 589 F.3d 127, 139 (4th Cir.
However, this distinction has no practical effect on the
adjudication
under
Rule
of
12(c)
Officer
Briggs‘
.
is
.
.
motion,
assessed
under
standard that applies to a Rule 12(b)(6) motion.‖
Edwards
v.
City
of
Goldsboro,
1999)).
7
178
F.3d
231,
because
243
the
―a
same
Id. (citing
(4th
Cir.
IV. Discussion
A. Count One
Several
of
the
defendants
argue
that
Count
One
of
the
Complaint fails to state a claim on which relief can be granted
because it ambiguously refers to a deprivation of Civil Rights
under the ―laws, statutes, the United States Constitution, and
the Constitution of the Commonwealth of Virginia.‖
Compl. ¶ 15.
Although Count One is not a model of clarity, a careful reading
of the allegations therein reveals Plaintiff‘s intent to assert
a claim against the City Defendants pursuant to 42 U.S.C. §
1983.
Because Count Seven of the Complaint also asserts such a
§ 1983 claim, Count One is addressed below, along with Count
Seven, in Part D of the Court‘s discussion of the issues.
B. Counts Two through Six - City Defendants5
The City Defendants assert that Counts Two through Six of
the Complaint fail to state a claim on which relief can be
granted because the City Defendants are shielded from liability
for state-law torts based on the doctrine of sovereign immunity.
It is well-established that sovereign immunity is ―alive and
well‖
in
Virginia
and
that
such
doctrine
extends
to
a
city
Plaintiff states in her briefs in opposition to the motions to
dismiss that it is ―no longer relevant‖ whether Virginia law
affords her a right to relief as all Defendants are subject to
liability under 42 U.S.C. § 1983 and 1988. Because the Court is
unclear whether Plaintiff intends such statement as an express
withdrawal of her state law claims, the Court does not consider
such claims to be withdrawn.
5
8
within the Commonwealth with respect to the city‘s performance
of ―governmental functions.‖
Niese v. City of Alexandria, 264
Va. 230, 238, 564 S.E.2d 127, 132 (2002); Gedrich v. Fairfax
Cnty. Dept. of Family Services, 282 F. Supp. 2d 439, 473-74
(E.D.
2003).6
Va.
Furthermore,
it
is
axiomatic
that
the
maintenance of a police department is a ―governmental function.‖
Niese, 264 Va. at 239, 564 S.E.2d at 132; see Carter v. Morris,
164
F.3d
215,
221
(4th
Cir.
1999)
(―[I]t
is
plain
that
[sovereign immunity] extends to municipalities in the exercise
of their governmental functions, one of which is certainly the
maintenance of a police force.‖) (internal citation omitted).
Virginia adheres to the principle that a city‘s sovereign
immunity for torts allegedly committed by police officers during
the course of their employment is broad enough to render such
city immune from liability for all forms of torts, including
intentional torts.
Niese, 264 Va. at 239, 564 S.E.2d at 133;
Harrison v. Prince William Cnty. Police Dept., 640 F. Supp. 2d
688,
712
(E.D.
Va.
2009).
Accordingly,
here,
the
City
of
Newport News is immune from liability as to Counts Two through
Six
of
the
Complaint
because
each
6
of
such
counts
alleges
a
Although the Commonwealth has abrogated some of its sovereign
immunity pursuant to the Virginia Tort Claims Act, the Act
―expressly disclaims any effort ‗to remove or in any way
diminish the sovereign immunity of any county, city, or town in
the Commonwealth.‘‖
Carter v. Morris, 164 F.3d 215, 221 (4th
Cir. 1999) (quoting Va. Code Ann. § 8.01-195.3) (emphasis
added).
9
Virginia tort.
Turning to Fox and Morgan, regardless of whether they, like
the City,
alleged
are immune from liability for
in
the
otherwise
Complaint,7
implicated
Complaint.
in
Accordingly,
Fox
and
Counts
Morgan
Two
Counts
all state-law
Two
are
not
named
or
Five
through
through
torts
of
the
Five
necessarily
fail to state a claim against Fox or Morgan.
As
to
conjunction
the
with
allegations
the
in
preceding
Count
Six,
paragraphs
in
when
the
read
in
Complaint,
Count Six appears to allege that Fox and Morgan were negligent
for
failing
to
implement
training
and
supervision
procedures
necessary to ensure that Newport News Police officers do not use
excessive
force
during
the
course
of
arrests.
However,
as
discussed immediately below, sovereign immunity shields both Fox
and
Morgan
employees,
from
liability
regardless
of
as
to
their
Count
job
Six
title,
because
are
all
city
immune
from
In Pigott v. Ostulano, 74 Va. Cir. 228 (Norfolk, 2007), the
Circuit Court‘s opinion suggests that a city‘s broad sovereign
immunity from liability for all state-law torts committed by
city police officers may also operate to render high-level city
officials immune from liability.
Specifically, in Pigott, the
court held that a Police Chief and Captain, ―two principal
commanding officers of [the City‘s] Police Department,‖ were
immune from liability for torts committed by subordinate
officers because ―officials who oversee the operation of [the
City‘s] Police Department are cloaked with the same sovereign
immunity that protects the City.‖
Id. at 230.
Here, because
Fox and Morgan are high-ranking supervisory officials, Pigott
suggests that both may, like the City, be automatically shielded
from liability for all state-law torts allegedly committed by
subordinate police officers.
7
10
liability
for
ordinary
negligence
discretionary decisions.
associated
with
qualifying
See Messina v. Burden, 228 Va. 301,
313-14, 321 S.E.2d 657, 663-64 (1984); James v. Jane, 221 Va.
43, 53, 282 S.E.2d 864, 869 (1980); Shaffer v. City of Hampton,
Va., 780 F. Supp. 342, 344 (E.D. Va. 1991).
In
determining
whether
ordinary
negligence
sovereign
immunity extends to a specified city employee‘s actions, the
court
must
consider:
―(1)
the
nature
of
the
function
the
employee performs; (2) the extent of the government‘s interest
and involvement in the function; (3) the degree of control and
direction exercised over the employee by the government; and (4)
whether the act in question involved the exercise of discretion
and judgment.‖
Colby v. Boyden, 241 Va. 125, 129, 400 S.E.2d
184, 186-87 (1991) (citing Messina, 228 Va. at 313, 321 S.E.2d
at
663).
Applying
such
test,
here,
Fox‘s
and
Morgan‘s
involvement in implementing policies, procedures, and training
for the City‘s police force satisfies the first two prongs of
the test because high-level oversight of the police force is
clearly a necessary governmental function in which the City, as
well as
the Commonwealth, has a vital interest.
As to the
second two prongs, Fox‘s and Morgan‘s positions as Chief of
Police and City Manager necessarily ceded to them great control,
and
their
decisions
regarding
training
and
supervision
of
subordinate police officers undeniably involve the exercise of
11
their judgment and discretion.
Accordingly, both Fox and Morgan
are immune from liability for allegations of ordinary negligence
associated
with
their
decisions
regarding
training of subordinate police officers.
supervising
and
See Guerrero v. Deane,
No. 1:09cv1313, 2010 WL 670089, at *13-14 (E.D. Va. Feb. 19,
2010) (unpublished) (finding that the allegations against the
police chief were limited to challenging the ―hiring, training
and supervising [of] his subordinate officers,‖ and that because
the chief ―serves in a high position that involves the exercise
of
judgment
government
protects
and
discretion
functions,
him
from
and
the
[u]nder
liability
execution
Messina,
for
of
important
sovereign
immunity
negligence
committed
in
the
exercise‖ of such discretion); Savage v. County of Stafford,
Va., 754 F. Supp. 2d 809, 817 (E.D. Va. 2010) (quoting Glasco v.
Ballard, 249 Va. 61, 64-65, 452 S.E.2d 854, 856 (1995)) (―Under
Virginia law, ordinary negligence claims cannot lie against a
law
enforcement
officer
who
was
engaged
in
‗an
essential
governmental function involving the exercise of discretion and
judgment‘ at the time of the act alleged to be negligent.‖).
Finally,
sovereign
even
immunity
if
for
Fox
and
Morgan
ordinary
were
negligence
not
shielded
regarding
by
their
failure to train and/or properly supervise subordinate officers,
Count Six would be dismissed as to both Fox and Morgan based on
Plaintiff‘s failure to satisfy the applicable pleading standard.
12
As previously discussed, Plaintiff is required to assert ―enough
facts to state a claim to relief that is plausible on its face,‖
Twombly, 550 U.S. at 570, and here, she has failed to advance
any facts supporting the bald assertion that Fox and Morgan were
negligent in their training or supervision of subordinate police
officers.8
of
the
See Iqbal, 129 S. Ct. at 1949 (―Threadbare recitals
elements
of
a
cause
of
action,
supported
by
mere
conclusory statements, do not suffice‖ to survive a motion to
dismiss.).
Accordingly,
the
City
Defendants‘
motion
to
dismiss
is
granted with respect to Counts Two through Six of the Complaint
based on such Defendants‘ sovereign immunity and/or Plaintiff‘s
failure to assert, or failure to adequately assert, a cause of
action against each of the City Defendants.
C. Counts Two through Six - Gayle and Briggs
1. Count Two – Intentional Infliction of Emotional Distress
Defendants Gayle and Briggs argue that Count Two, alleging
intentional infliction of emotional distress, fails to advance
sufficient
facts
to
granted.
Intentional
state
a
claim
infliction
of
on
which
emotional
disfavored cause of action in Virginia.
relief
can
distress
is
be
a
Ruth v. Fletcher, 237
Similarly, even if Count Six can be construed as attempting to
allege that Fox and Morgan were grossly negligent, such claim
would fail under Twombly as plaintiff offers no facts that would
support a finding of gross negligence.
8
13
Va. 366, 373, 377 S.E.2d 412, 415 (1989); see also Weth v.
O'Leary, __ F. Supp. 2d. __, 2011 WL 2693178, at *5 (E.D. Va.
July 11, 2011) (―Intentional infliction of emotional distress is
a highly disfavored claim in the Fourth Circuit . . . .‖).
In
order to recover on such claim, a plaintiff must prove:
(1) ―the wrongdoer‘s conduct was intentional or reckless‖;
(2) ―the conduct was outrageous and intolerable‖; (3)
―there was a causal connection between the wrongdoer's
conduct and the emotional distress‖; and (4) ―the emotional
distress was severe.‖
Hatfill v. The New York Times Co., 532 F.3d 312, 325-26 (4th
Cir. 2008) (quoting Womack v. Eldridge, 215 Va. 338, 342, 210
S.E.2d 145, 148 (1974)).
Here,
a
review
of
the
Complaint
reveals
that
Plaintiff
fails to plead facts sufficient to state a plausible right to
relief on this ground, most notably by her failure to allege any
facts demonstrating ―outrageous and intolerable‖ conduct.
See
Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160, 162 (1991)
(indicating that a plaintiff must demonstrate that ―the conduct
has been so outrageous in character, and so extreme in degree,
as
to
go
beyond
all
possible
bounds
of
decency,
and
to
be
regarded as atrocious, and utterly intolerable in a civilized
community‖); Harris v. Kreutzer, 271 Va. 188, 204, 624 S.E.2d
24, 33-34 (2006) (―Insensitive and demeaning conduct does not
equate to outrageous behavior,‖ and allegations of ―tortious or
even
criminal‖
intent
are
likewise
14
insufficient
to
establish
outrageous
conduct)
(internal
citation
omitted).
Notably,
Plaintiff‘s own version of events fails to detail any offensive,
abusive, or outrageous conduct or statements made by officers,
and
instead
quickly
states
arrested,
Compl. ¶ 11.
with
minimal
handcuffed,
and
detail
placed
that
in
Plaintiff
a
police
was
car.9
Although Plaintiff states that Officer Briggs
ignored her pleas to remove or loosen her handcuffs, she offers
no details or aggravating facts that suggest that the use of
tight handcuffs during the course of her arrest could reasonably
be viewed as ―atrocious‖ or ―going beyond all possible bounds of
decency.‖10
Furthermore,
even
though
Briggs‘
brief
squarely
attacks Plaintiff‘s failure to allege any outrageous conduct,
Plaintiff fails to defend the sufficiency of such count and
fails to cite a single case suggesting that the conduct set
forth in the Complaint rises to the level necessary to even
approach the ―extreme and outrageous‖ standard applicable to the
Virginia tort of intentional infliction of emotional distress.11
Plaintiff‘s Complaint is devoid of facts indicating that any
officer threatened her, used inappropriate language, struck her,
embarrassed her, bore her any ill will, or had any other reason
to intentionally target Plaintiff for mistreatment.
10
Furthermore, as to Gayle, Plaintiff fails to allege that Gayle
handcuffed her or was present when she repeatedly complained of
her handcuffs being too tight.
11
Plaintiff‘s briefs in opposition to dismissal argue that
applicable law permits a successful plaintiff in a § 1983 action
to recover for emotional distress.
This argument, however,
misses the mark regarding the dismissal motions. Briggs and the
City Defendants challenge plaintiff‘s failure to adequately
9
15
Plaintiff likewise fails to state a claim by advancing the
bald conclusion that ―all actions and words of the Newport News
policemen alleged above were intentional and reckless with the
specific purpose of inflicting emotional distress,‖ Compl. ¶ 17,
as such statement falls far short of the pleading standard under
Twombly and its progeny.
type
of
unsubstantiated
To the contrary, this is precisely the
conclusory
statement
satisfy the applicable pleading standard.
that
fails
to
Accordingly, Gayle‘s
and Briggs‘ motions to dismiss Count Two are granted.
2. Counts Three through Five – Assault, Battery, and
False Imprisonment
Defendant
Gayle
seeks
dismissal
of
Counts
Three
through
Five of the Complaint, respectively alleging assault, battery,
and false imprisonment, based on Plaintiff‘s failure to either
specifically name Gayle in such counts or otherwise demonstrate
that Gayle participated in Plaintiff‘s arrest.
Additionally,
both Gayle and Briggs seek dismissal of such counts based on
their
assertion
that
Plaintiff‘s
own
facts
demonstrate
that
Briggs had a reasonable basis for arresting plaintiff.
Assault requires an act ―that creates in [another] person‘s
mind a reasonable apprehension of an imminent battery.‖
Koffman
plead an independent state-law tort claim for intentional
infliction of emotional distress.
The resolution of such a
pleading deficiency is unrelated to whether Plaintiff can
ultimately demonstrate that her damages, recoverable under §
1983, include compensable emotional suffering.
16
v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003).
tort
of
battery
is
an
unwanted
touching
consented to, excused, nor justified.‖
Id.
which
is
―The
neither
―False imprisonment
is the restraint of one‘s liberty without any sufficient legal
excuse.‖
Lewis v. Kei, 281 Va. 715, 724, 708 S.E.2d 884, 890
(2011).
a. Sergeant Gayle
Here, Plaintiff fails to state a plausible right to relief
as to Sergeant Gayle in Counts Three, Four, and Five, as she
fails
to
allege
touched,
that
actually
Gayle
touched
ever
put
Plaintiff,
her
in
fear
restricted
of
being
Plaintiff‘s
movements in any way, or otherwise directed another officer to
touch
or
restrict
movements.12
Plaintiff‘s
On
the
contrary,
Plaintiff clearly states in her Complaint that Officer Briggs
was
the
only
individual
restricted
her
Plaintiff‘s
briefs
that
movements
in
ever
at
touched
her
or
scene
of
her
the
opposition
to
dismissal
otherwise
arrest.
confirm
her
position regarding the relevant facts, as she states therein
12
These counts fail to state a claim against Gayle under the
doctrine of respondeat superior because Plaintiff‘s facts
establish that Briggs made the discretionary decision to arrest
her; therefore, he was plainly not performing a ministerial task
on behalf of Sergeant Gayle. See First Virginia Bank-Colonial v.
Baker, 225 Va. 72, 78-79, 301 S.E.2d 8, 12 (1983) (indicating
that although public officials may not be immune from liability
for their subordinates‘ performance of ministerial duties, they
are immune from liability for their subordinates‘ discretionary
decisions).
17
that
Officer
Briggs
witnessed
Plaintiff
touch
her
husband‘s
hand, Officer Briggs stated that such act was an assault and
battery, and Officer Briggs placed Plaintiff under arrest.
Opp. to Dismissal 2, Dkt. No. 13).
(Pl.
Furthermore, the Complaint
fails to even allege that Gayle was present during Plaintiff‘s
transport to the police station, nor does it allege his presence
at the police station.
Accordingly, Counts Three, Four, and
Five are dismissed against Gayle as Plaintiff fails to state a
plausible right to relief.
b. Officer Briggs
Plaintiff‘s Complaint alleges that, without justification,
Officer Briggs placed her under arrest, physically restrained
her through the use of handcuffs, and placed her in a police
vehicle and later in a holding cell.
Defendant Briggs responds
by arguing that Counts Three, Four, and Five fail to state a
claim because he had a good faith and reasonable belief in the
validity
of
the
arrest.
Specifically,
Briggs
argues
that
because Plaintiff admits that she touched her husband‘s hand
during
the
leaves
no
with
her
physical
course
of
husband
domestic
argument,
that
question
a
Plaintiff
elevated
from
touching.‖
a
lock-out
(Briggs‘
dispute
Opp.
Brief
―[t]he
the
to
7,
Complaint
confrontation
one
Dkt.
involving
No.
9)
(emphasis added).
Although the Court recognizes that Briggs is shielded from
18
tort liability for wrongful arrest if he had a ―good faith and
reasonable belief‖ that a crime was committed in his presence,
DeChene v. Smallwood, 226 Va. 475, 479, 311 S.E.2d 749, 751
(1984)
(citations
omitted),
at
this
early
stage
litigation, the facts do not support such a finding.
in
the
Rather,
viewing the facts in a light most favorable to Plaintiff, as
required of the Court in this procedural posture, the Court must
assume that Plaintiff, in a calming manner, called her husband
―Honey,‖
asked
him
―please
don‘t
do
this,‖
and
justifiably
touched him on the wrist in a non-threatening manner to help
calm him down. Compl. ¶ 10.
As there are no facts alleged
suggesting that such touch elevated the dispute, and the facts
alleged instead only indicate that Plaintiff‘s non-threatening
touch
sought
to
diffuse
the
tension,
Plaintiff
sufficiently
alleges that Briggs lacked justification to handcuff her and
place her under arrest.
Accordingly, the Complaint adequately
states a plausible right to relief against Briggs for assault,13
battery, and false imprisonment.
Briggs‘ motion to dismiss is
therefore denied as to Counts Three, Four, and Five.
13
Although Plaintiff‘s narrative states that she was handcuffed
―without warning,‖ thereby eliminating any opportunity for
Plaintiff to fear an imminent battery, Plaintiff‘s facts detail
several instances when she was touched by Briggs, such as being
placed in the police car, and placed in the holding cell.
Accordingly, it would be premature to dismiss the assault count
at this time solely based on Plaintiff‘s admission that the
initial touching was ―without warning.‖
19
3. Count Six – Negligence
As above, Defendant Gayle seeks dismissal of Count Six,
alleging negligence, based on Plaintiff‘s failure to assert that
Gayle
participated
dismissal
of
such
in
her
count
arrest.
Defendant
contending
that
he
is
Briggs
seeks
shielded
by
sovereign immunity for ordinary negligence, and that Plaintiff
fails to allege sufficient facts to state a claim for gross
negligence.
It is well-established that a city‘s immunity from statelaw tort claims extends to claims against police officers for
ordinary negligence occurring during the arrest of a suspect.
See
Savage,
754
F.
Supp.
2d
at
817
(indicating
that,
in
Virginia, law enforcement officers are immune from liability for
ordinary negligence for acts committed while exercising judgment
in the performance of essential police functions); Glasco, 249
Va. at 64-65, 452 S.E.2d at 856 (finding a defendant deputy
sheriff immune from a claim of ordinary negligence because the
facts surrounding the shooting of a suspect demonstrated that
the defendant ―was engaged in an essential governmental function
involving
the
exercise
of
discretion
and
judgment‖).
Here,
however, Plaintiff appears to argue in her rebuttal briefs that
the
Complaint
alleges
both
ordinary
20
and
gross
negligence,
thereby overcoming any sovereign immunity defense.14
See Colby,
241 Va. at 130, 400 S.E.2d at 187 (explaining that sovereign
immunity shields officers from ordinary negligence, but not from
gross negligence).
Under
Virginia
law,
―gross
negligence‖
refers
to
the
―degree of negligence which shows an utter disregard of prudence
amounting
to
complete
neglect
of
the
safety
of
another.‖
Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688,
691 (1987).
the
absence
care.‖
fair
Id.
Stated differently, ―Gross negligence amounts to
of
slight
diligence,
or
the
want
of
even
scant
It is negligence to such a degree that ―would shock
minded
men
recklessness.‖
although
something
less
than
willful
Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d
648, 653 (1971).
Because the Court concludes that Gayle and
Briggs effectively assert immunity from ordinary negligence, the
Court
considers
individually
whether
Plaintiff
has
stated
a
plausible right to relief based on Gayle‘s and Briggs‘ alleged
gross negligence.
14
The Complaint expressly alleges gross negligence based on
Briggs‘ acts and Gayle‘s failure to intervene, but thereafter
references ―wanton, willful and reckless‖ conduct undertaken by
two Police Departments in cities other than Newport News against
an individual not otherwise named in the Complaint.
The Court
assumes that such references are the result of an editing error,
and construes Count Six as attempting to assert that Gayle and
Briggs were grossly negligent.
21
a. Sergeant Gayle
Plaintiff fails to set forth any facts in the Complaint,
nor
cite
any
relevant
law
in
her
briefs
in
opposition
to
dismissal, that suggest that she has a plausible right to relief
against Gayle for gross negligence.
Count Six does not mention
Gayle by name nor does it, or any prior factual assertion in the
Complaint, detail in what way Gayle‘s action or inaction was
grossly negligent.
As previously noted, the Complaint never
asserts that Gayle directed Officer Briggs to act, nor does it
claim that he took charge of the scene.
Furthermore, Plaintiff
fails to allege that Gayle was even present in the police car or
at the police station.
At most, the Complaint asserts that
Gayle was present when Briggs arrested Plaintiff and that Gayle
failed to take ―corrective action‖ upon observing Officer Briggs
arrest Plaintiff.
Compl. ¶¶ 6, 11-12, 26.
Even assuming that Plaintiff is correct that Briggs lacked
an adequate legal justification to arrest her, the fact remains
that
Plaintiff
barricaded
her
husband
out
of
their
home,
resulting in him breaking into the rear of the residence with a
crowbar.
Regardless
of
Plaintiff‘s
subjective
thereafter physically touched her husband.
Briggs‘
split-second
decision
to
intervene
intent,
she
Justified or not,
in
the
charged
environment of the instant domestic dispute does not demonstrate
―an utter disregard of prudence‖ and is a far cry from an act so
22
unreasonable that it ―would shock fair minded men.‖
Ferguson,
212 Va. at 92, 181 S.E.2d at 653; see Waterman v. Batton, 393
F.3d 471, 476–77 (4th Cir. 2005) (quoting Graham v. Connor, 490
U.S. 386, 396-97 (1989)) (―Because ‗police officers are often
forced to make split-second judgments—in circumstances that are
tense,
uncertain,
and
rapidly
evolving,‘
the
facts
must
be
evaluated from the perspective of a reasonable officer on the
scene,
and
Accordingly,
the
as
use
of
Plaintiff
hindsight
fails
to
must
avoided.‖).15
be
sufficiently
allege
that
Briggs was grossly negligent in arresting her, and fails to even
allege that Gayle was present at the police station or during
her transport thereto, Gayle‘s motion to dismiss Count Six is
granted.
b. Officer Briggs
As
discussed
demonstrate
negligent
in
that
immediately
Officer
deciding
to
above,
Briggs,
arrest
Plaintiff‘s
even
if
Plaintiff,
own
mistaken
was
negligent in deciding to effectuate such arrest.
not
facts
and/or
grossly
In contrast,
Plaintiff appears to have asserted sufficient facts to state a
15
The applicable Virginia Statute states, in relevant part,
that:
A law-enforcement officer having probable cause to
believe that a [battery against a family member] . . .
has occurred shall arrest and take into custody the
person he has probable cause to believe, based on the
totality of the circumstances, was the predominant
physical aggressor . . . .
VA Code § 19.2-81.3.
23
claim that Briggs was grossly negligent in refusing to loosen
Plaintiff‘s handcuffs in that: (1) Plaintiff is 67 years old;
(2) there are no facts suggesting that Plaintiff resisted arrest
or
attempted
regarding
to
escape;
Plaintiff‘s
(3)
there
dangerousness;
are
no
(4)
aggravating
Plaintiff
facts
repeatedly
complained to Briggs of severe pain and informed him that her
handcuffs were so tight that she was losing feeling in her hand
and fingers; and (5) Briggs left Plaintiff in the excessively
tight
handcuffs
for
over
thirty
minutes
after
secured in a holding cell at the police station.
she
had
been
Assuming that
the above facts are true, as the Court must at this stage in the
proceedings,
Plaintiff
has
sufficiently
alleged
that
Officer
Briggs demonstrated an ―utter disregard of prudence‖ in failing
to even check on Plaintiff‘s well-being after she was secured in
a
cell
and
repeatedly
pleaded
for
relief
from
severe
pain.
Accordingly, the Court grants Briggs‘ motion to dismiss that
portion of Count Six involving his decision to arrest Plaintiff,
and denies Briggs‘ motion to dismiss that portion of Count Six
involving his refusal to loosen Plaintiff‘s handcuffs.
D. Count Seven
In Count Seven of the Complaint, Plaintiff asserts a claim
seeking
relief
pursuant
to
42
U.S.C.
§
1983.
Count
Seven
appears to be directed at Gayle and Briggs, and it expressly
cites to § 1983.
Count One does not expressly reference § 1983;
24
however, as previously indicated, it appears to be directed at
the
City
Defendants,
and
it
alleges
a
deprivation
of
civil
rights under color of state law, in violation of the ―laws,
statutes [and] the United States Constitution . . . .‖
15.16
the
Compl. ¶
It is beyond dispute that the Complaint is ―not a model of
careful
complaint
drafter‘s
need
not
art‖;
however,
skillfully
even
articulate
post-Twombly,
the
precise
a
legal
theory on which relief is sought as long as the facts presented
therein
plausibly
state
an
identifiable
right
Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011).
to
relief.
Although this
Court does not doubt that a motion for a more definite statement
regarding Count One would have merit, dismissal of Count One is
not appropriate solely based on its lack of clarity.
Rather,
when
factual
considered
in
conjunction
with
the
preceding
narrative, Count One sufficiently reflects an attempt to state a
claim for relief under § 1983 and the Fourth Amendment to the
United States Constitution.
Accordingly, Count One is construed
as seeking to assert a § 1983 claim against the City Defendants,
The broad language of Count One also references violations of
Virginia‘s statutes and constitution; however, Plaintiff fails
to indicate what Virginia statute or constitutional provision
provides a right to relief.
As this Court is unaware of any
cause of action under Virginia law to which Count One could be
referring to assert a viable claim, and in any case Plaintiff
has not plausibly asserted such a claim, Count One is construed
solely as asserting a claim under 42 U.S.C. § 1983 and the
Fourth Amendment to the United States Constitution.
16
25
and Count Seven is construed as seeking to assert a § 1983 claim
against defendants Gayle and Briggs.
Under 42 U.S.C. § 1983, a plaintiff may maintain a private
right of action if a person, acting under color of state law,
deprives the plaintiff of rights secured by the United States
Constitution.
Wahi v. Charleston Area Medical Center, Inc.,
562 F.3d 599, 615 (4th Cir. 2009).
Section 1983 states, in
relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress
. . . .
42 U.S.C. § 1983.
The
United
States
Supreme
Court
has
held
that
municipalities and other local government entities are ―persons‖
subject
Heights,
to
suit
503
U.S.
under
115,
§
1983.
120
Servs., 436 U.S. 658, 690
Collins
(1992);
(1978).
Monell
v.
v.
City
of
Dep‘t
Harker
of
Soc.
When a § 1983 claim is
asserted against a municipality, or a municipal supervisor in
his or her
official capacity,
two issues much be addressed:
―‗(1) whether plaintiff‘s harm was caused by a constitutional
violation, and (2) if so, whether the city is responsible for
26
that violation.‘‖ Covenant Media of S.C., L.L.C. v. City of N.
Charleston, 493 F.3d 421, 436 (4th Cir. 2007) (quoting Collins,
503 U.S. at 120).
Even
if
underlying
a
court
determines
constitutional
employee,
a
violation
municipality‘s
constitutionally
that
committed
liability
offensive
actions
there
of
―arises
has
by
a
where
are
furtherance of some municipal policy or custom.‖
Prince
George‘s
Cnty.,
575
F.3d
426,
431
an
municipal
only
employees
been
taken
the
in
Walker v.
(4th
Cir.
2009)
(internal quotations omitted).
―Section 1983 plaintiffs seeking
to
municipality
impose
liability
on
a
must,
therefore,
adequately plead and prove the existence of an official policy
or custom that is fairly attributable to the municipality and
that
proximately
caused
the
deprivation
of
their
rights.‖
Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994)
(emphasis
cannot
be
vicarious
added).
premised
liability,
Furthermore,
a
on
of
a
theory
but
rather,
municipality‘s
respondeat
―‗[i]t
is
liability
superior
only
when
or
the
execution of the government's policy or custom . . . inflicts
the injury that the municipality may be held liable under §
1983.‘‖
City
(quoting
of
Canton
Springfield
v.
v.
Harris,
Kibbe,
489
480
U.S.
U.S.
378,
385
267
257,
(1989)
(1987)
(O'Connor, J., dissenting)) (alteration in original).
Here,
Plaintiff
advances
a
27
§
1983
claim
against
all
Defendants.
Therefore,
the
Court
first
considers
whether
Plaintiff‘s facts plausibly assert that Briggs deprived her of a
right secured by the United States Constitution.
finds
that
Plaintiff
sufficiently
alleges
a
If the Court
constitutional
violation committed by Briggs, the Court must consider whether
Plaintiff has pled sufficient facts to impute liability to Gayle
and/or the City Defendants.
1. § 1983 Claim against Briggs
Plaintiff‘s allegations of constitutional violations focus
on
her arrest and initial detention, requiring the Court to
determine whether such allegations substantiate a violation of
the Fourth Amendment.
See Graham, 490 U.S. at 394 (indicating
that excessive force claims associated with an arrest of a ―free
citizen‖ implicate the Fourth Amendment).
The Fourth Amendment
protects
be
―[t]he
right
of
the
people
to
secure
in
their
persons . . . against unreasonable searches and seizures . . .
.‖
U.S. Const. amend. IV.
However, a seizure of a suspect is
not ―unreasonable‖ if a police officer has probable cause to
believe
that
presence.
a
crime
has
been
committed
in
the
officer‘s
Virginia v. Moore, 553 U.S. 164, 178 (2008); United
States v. Williams, 10 F.3d 1070, 1073–74 (4th Cir. 1993).
―‗Probable
cause,‘
for
Fourth
Amendment
purposes,
means
‗facts and circumstances within the officer‘s knowledge that are
sufficient to warrant a prudent person, or one of reasonable
28
caution,
in
believing,
in
the
circumstances
shown,
that
the
suspect has committed, is committing, or is about to commit an
offense.‘‖
Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992) (quoting Michigan v. De Fillippo, 443 U.S. 31, 37 (1979)).
―Thus, the appropriate question is whether a reasonable police
officer could have believed that arresting [the suspect] was
lawful, in light of clearly established law and the information
the officers possessed.‖
Rogers v. Pendleton, 249 F.3d 279, 290
(4th Cir. 2001).
Even if probable cause supports a warrantless arrest, the
Fourth Amendment‘s protections also ―include[] the right to be
free of ‗seizures effectuated by excessive force.‘‖
Henry, 2011
WL 2725816, at *4 (quoting Schultz v. Braga, 455 F.3d 470, 476
(4th Cir. 2006)).
excessive
force,
In determining whether an arrest involved
―courts
determine
‗whether
the
officers‘
actions are objectively reasonable in light of the facts and
circumstances
confronting
them,
without
underlying intent or motivation.‘‖
U.S. at 397).
objectively
regard
to
their
Id. (quoting Graham, 490
In addressing whether an officer‘s actions are
reasonable,
a
court
weighs
the
nature
of
the
intrusion on the plaintiff‘s Fourth Amendment rights ―against
the
countervailing
governmental
interests
at
stake,‖
which
requires an assessment of the severity of the predicate crime,
the immediate threat posed by the arrestee, and whether he or
29
she resisted arrest or attempted to flee from officers.
Turmon
v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005) (quoting Graham,
490 U.S. at 396).
Here, viewing the alleged facts in a light most favorable
to Plaintiff, as required of the Court, the Court cannot find
that Officer Briggs had probable cause to arrest Plaintiff.
The
facts, as presented by Plaintiff, support the inference that
Plaintiff gently touched her husband‘s wrist in an effort to
calm him down.
Accepting such facts as true, the Court cannot
conclude that a reasonable officer would believe that a battery,
that
is,
an
unwanted
and
unjustified
touching,
had
been
committed in his presence.
Furthermore, even if the Court were to assume that Briggs
had probable cause to arrest Plaintiff, Plaintiff nevertheless
advances sufficient facts to state a plausible right to relief
against
Briggs
based
on
the
use
of
excessive
force.
The
Complaint alleges that Officer Briggs over-tightened Plaintiff‘s
handcuffs
to
the
point
of
cutting
off
her
circulation,
repeatedly refused to respond to Plaintiff‘s pleas to loosen the
cuffs,
and
that
Plaintiff
injury as a result.17
suffered
a
serious
and
permanent
There does not appear to be a strong
17
Briggs argues in support of dismissal that it was reasonable
not to loosen Plaintiff‘s handcuffs because there was ―no
outward indication‖ that Plaintiff had suffered a serious
injury.
(Briggs‘ Opp. Brief 14, Dkt. No. 9).
The facts,
30
countervailing governmental interest supporting the use of such
force as the predicate crime at issue, a non-violent touching,
is clearly not severe, the Complaint reveals no serious threat
posed by Plaintiff, and she did not resist arrest or attempt to
flee.
Turmon, 405 F.3d at 207.
Furthermore, Plaintiff alleges
that she remained in the excessively tight handcuffs for thirty
minutes
after
being
placed
in
a
holding
cell
at
the
police
station, during which she repeatedly ―begged‖ Officer Briggs to
loosen
or
remove
her
cuffs.
These
facts
are
sufficient
to
allege a § 1983 claim for excessive force.18
however, as advanced by Plaintiff, fail to suggest that Briggs
ever examined Plaintiff‘s condition.
18
Some of the Defendants argue that allegations of tight
handcuffs are necessarily insufficient to state a § 1983 claim.
See Carter, 164 F.3d at 219 n.3 (finding that the plaintiff‘s
claim that ―her handcuffs were too tight and that an officer
pushed her legs as she got into the police car-is so
insubstantial that it cannot as a matter of law‖ support a
Fourth Amendment claim).
However, Carter, and the cases cited
therein, establishes that excessive force claims stemming from
the use of handcuffs fail as a matter of law only when a
plaintiff‘s injuries are limited to minor scrapes or soreness.
See Cooper v. City of Virginia Beach, Va., 817 F. Supp. 1310,
1314 (E.D. Va. 1993) (collecting excessive force cases involving
the use of handcuffs and noting that ―the presence, nature, and
extent of any resulting injury constitute important elements in
the reasonableness calculus‖).
In contrast, here, Plaintiff
alleges that she lost feeling in her hand and fingers, that her
pain caused her to repeatedly ―beg‖ Briggs to loosen the cuffs,
and that as a result of his failure to do so, Plaintiff suffered
permanent injuries that resulted in her loss of income.
See
Morrison v. Board Of Trustees Of Green Twp., 583 F.3d 394, 401
(6th Cir. 2009) (―The Fourth Amendment prohibits unduly tight or
excessively forceful handcuffing during the course of a
seizure,‖ and to recover a plaintiff must prove: ―(1) he or she
complained the handcuffs were too tight; (2) the officer ignored
31
Finding
Plaintiff‘s
allegations
sufficient
to
state
a
§
1983 claim against Briggs, the Court must consider whether the
doctrine of qualified immunity shields Briggs from liability.
―Qualified immunity protects officers who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.‖
Henry v.
Purnell, __ F.3d __, 2011 WL 2725816, at *4 (4th Cir. July 14,
2011).
In other words, municipal officers are immune from §
1983 liability unless a plaintiff‘s ―§ 1983 claim satisfies a
two-prong test: (1) the allegations, if true, substantiate a
violation of a federal statutory or constitutional right and (2)
the
right
was
‗clearly
established‘
such
that
a
reasonable
person would have known his acts or omissions violated
right.‖
that
Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.
2011) (citing Ridpath v. Board of Governors Marshall University,
447 F.3d 292, 306 (4th Cir. 2006)).
Qualified immunity provides
―an immunity from suit rather than a mere defense to liability,‖
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and therefore
―should
be
litigation.‖
resolved
Anderson
at
v.
the
earliest
Creighton,
possible
483
U.S.
stage
635,
of
the
646
n.6
(1987).
those complaints; and (3) the plaintiff experienced ‗some
physical injury‘ resulting from the handcuffing‖).
The instant
facts are therefore distinguishable from the facts of Carter,
and sufficiently state a § 1983 excessive force claim.
32
Here,
qualified
immunity
does
not
shield
Briggs
from
liability for either Plaintiff‘s § 1983 claim challenging the
constitutionality of her arrest or the § 1983 claim challenging
the level of force allegedly used in effectuating such arrest.
As
discussed
violation
above,
of
allegations,
her
if
Plaintiff
Fourth
true,
has
Amendment
substantiate
sufficiently
rights,
a
that,
at
the
time
of
i.e.
violation
statutory or constitutional right.‖
alleged
that
of
a
a
―the
federal
It is likewise apparent
Plaintiff‘s
arrest,
it
was
―clearly
established‖ that arresting a person for gently touching her
spouse on the wrist or repeatedly refusing to check on a secured
detainee‘s
handcuffs
violated such rights.
after
numerous
pleas
of
severe
pain
See, e.g., Morrison v. Board of Trustees
of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009) (indicating
that
it
is
―clearly
established‖
that
the
Fourth
Amendment
―prohibits unduly tight or excessively forceful handcuffing‖).
A reasonable officer thus would have known that the actions
taken
by
Briggs
violated
Plaintiff‘s
constitutional
rights.
Accordingly, Officer Briggs‘ motion to dismiss is denied with
respect to Count Seven.
2. § 1983 Claim against Gayle
As
discussed
previously,
Plaintiff
fails
to
allege
that
Gayle actively participated in her arrest or in the alleged
application of excessive force.
33
However, because Plaintiff has
sufficiently
alleged
a
constitutional
violation
committed
by
Officer Briggs, the Court must address whether such violation
can somehow be attributed to Sergeant Gayle.
―As
a
liability
general
only
matter,
through
a
law
affirmative
officer
may
incur
misconduct.‖
§
1983
Randall
v.
Prince George‘s Cnty., Maryland, 302 F.3d 188, 202 (4th Cir.
2002).
However,
the
Fourth
Circuit
recognizes
a
limited
exception to such general rule whereby a law enforcement officer
may
be
liable
liability.‖
under
§
Id. at 203.
1983
on
the
theory
of
―bystander
Such concept is ―premised on a law
officer‘s duty to uphold the law and protect the public from
illegal acts, regardless of who commits them,‖ and is applicable
if
―a
bystanding
officer
(1)
is
confronted
with
a
fellow
officer‘s illegal act, (2) possesses the power to prevent it,
and (3) chooses not to act . . . .‖
Here,
first
considering
Id.
Briggs‘
decision
to
arrest
plaintiff, Plaintiff alleges that Gayle was present at the scene
of her arrest, and that he ―fail[ed] . . . to intervene and come
to the aid of Hales, or take corrective action upon observing
[Briggs‘] misconduct . . . .‖
(Compl. ¶ 26).
As the court has
already determined that Plaintiff has sufficiently stated a §
1983 claim for an unreasonable seizure against Briggs, assuming
the above facts to be true, the Court must similarly find that
Plaintiff
has
stated
a
plausible
34
right
to
relief
against
Sergeant Gayle for failure to intervene.
reasons
discussed
in
the
preceding
Furthermore, for the
section,
Gayle
is
not
shielded by qualified immunity.
Considering next the § 1983 claim regarding the use of
excessive force, Plaintiff fails to state a claim against Gayle.
Notably,
the
bystander
liability
test
requires
that
the
bystander officer witness his fellow officer‘s illegal act, and
Plaintiff
fails
transport
to
to
the
allege
jail,
or
that
at
the
Gayle
jail,
was
present
during
which
during
times
Plaintiff repeatedly voiced her complaints about the manner in
which
she
was
handcuffed.
Accordingly,
Gayle‘s
motion
to
dismiss the portion of Count Seven alleging an excessive force §
1983 claim is granted, but Gayle‘s motion to dismiss the portion
of Count Seven alleging a ―bystander liability‖ § 1983 claim
regarding Plaintiff‘s arrest is denied.
See id. at 204 n.23
(expressly recognizing that bystander liability is ―applicable
to cases of unjustifiable arrest‖); Smith v. Ray, 409 Fed. Appx.
641, 648 (4th Cir. 2011) (unpublished) (applying the bystander
liability test set forth in Randall and finding that none of the
―bystander‖ officers could be held liable on the plaintiff‘s
excessive force claim because they were not ―present to witness
the use of excessive force.‖).
3. § 1983 Claim against the City Defendants
In
contrast
to
Briggs
and
35
Gayle,
none
of
the
City
Defendants were on the scene of Plaintiff‘s arrest.
Plaintiff
therefore fails to state a viable direct, or bystander § 1983
claim, against any of the City Defendants.
Similarly, Plaintiff
fails to state a § 1983 claim against the City Defendants on the
theory of ―supervisory liability.‖
Pursuant to such theory,
―when on notice of a subordinate‘s tendency to act outside the
law, [supervisors are obligated] to take steps to prevent such
activity.‖
allege
Randall, 302 F.3d at 203.
any
facts
whatsoever
Here, Plaintiff fails to
indicating
that
Briggs
had
a
―tendency to act outside the law.‖
Notwithstanding
bystander
against
Plaintiff‘s
liability,
the
City
or
failure
supervisory
Defendants,
a
to
state
liability
municipality
a
§
is
direct,
1983
claim
―subject
to
liability under section 1983 if the [plaintiff‘s] alleged injury
was
caused
by
an
identifiable
municipal
policy
or
custom.‖
Riddick v. School Bd. of City of Portsmouth, 238 F.3d 518, 522
(4th Cir. 2000).
A policy or custom can be established through:
(1) ―an express policy‖; (2) a decision by ―a person with final
policymaking authority‖; (3) an omission, ―such as a failure to
properly train officers‖; and (4) a practice so widespread that
it constitutes a custom.
Lytle v. Doyle, 326 F.3d 463, 471 (4th
Cir. 2003).
Although there are several ways to establish the existence
of
a
policy
or
custom,
a
plaintiff
36
seeking
to
attribute
liability based on such policy or custom must still satisfy ―the
usual requirements of notice pleading specified by the Federal
Rules.‖
requires
Jordan,
―more
15
than
F.3d
at
labels
339.
and
Such
pleading
conclusions,
and
a
standard
formulaic
recitation of the elements of a cause of action will not do.‖
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 555).
It
is insufficient for a plaintiff to present ―‗naked assertions‘
of wrongdoing‖ because without facts to support such conclusory
statements,
the
unadorned
claims
fail
to
―cross
‗the
line
between possibility and plausibility of entitlement to relief.‘‖
Id. (quoting Twombly, 550 U.S. at 557); see Revene v. Charles
Cnty.
Comm‘rs,
882
F.2d
870,
875
(4th
Cir.
1989)
(―§
1983
complaints which on critical elements of a claim merely recite
legal
conclusions
wholly
devoid
of
facts,
may
properly
be
dismissed for insufficiency of statement.‖) (internal quotation
marks and citations omitted).
Here, Plaintiff alleges that the City and the Newport News
Police Department have a ―policy and custom . . . of using
excessive and reckless force in dealing with citizens and in
handling suspects . . . .‖
Compl. ¶ 15.
Plaintiff fails,
however, to present a single fact to support her conclusory
statements
regarding
the
existence
of
an
official
custom related to the treatment of suspects
Police
officers.
Rather,
Plaintiff
37
policy
or
by Newport News
advances
the
wholly
unsupported
leap
in
logic
that,
because
she
was
allegedly
handled with excessive force, there must be a policy or custom,
or lack of training, that led to such treatment.
assertion‖ fails on its face.
Such ―naked
See Revene, 882 F.2d at 875
(affirming the dismissal of a § 1983 claim alleging ―a municipal
policy
of
inadequate
training‖
because
there
were
―not
supporting facts of even the most general nature to suggest any
specific deficiencies in training‖ nor any facts suggesting that
the incident at issue ―was anything but an aberrational act by
an individual officer‖); Allen v. City of Fredericksburg, No.
3:09CV63,
2011
WL
782039,
at
*8
(E.D.
Va.
Feb.
22,
2011)
(unpublished) (finding a complaint insufficient to state a cause
of action against the city or its police department as it was
―[c]ritically
lacking‖
facts
supporting
conclusory ―failure to train theory‖).
the
plaintiff‘s
Accordingly, the motions
to dismiss Counts One and Seven filed by the City Defendants are
granted.
V. CONCLUSION
As set forth above, the motion to dismiss filed by the City
Defendants is GRANTED in its entirety.
The motion to dismiss
filed by Gayle is GRANTED as to all counts in the Complaint
except the portion of Count Seven alleging § 1983 bystander
liability regarding Plaintiff‘s arrest; Gayle‘s motion is DENIED
with respect to such claim.
Officer Briggs‘ motion to dismiss
38
is
GRANTED
Counts
with
Three,
respect
Four,
to
Five
Counts
and
One
Seven,
and
and
Two,
GRANTED
DENIED
in
as
part
to
and
DENIED in part as to Count Six.19
The
Clerk
counsel of
IT
IS
is DIRECTED
to
send a
copy of
this
Order
to all
record.
SO
ORDERED.
/s
Mark S.
UNITED
Norfolk,
STATES
Davis
DISTRICT JUDGE
Virginia
September
3O
,
2011
19
Although
Plaintiff
includes
a
damages
provision
in
the
Complaint
labeled
"Count
Eight,"
such
provision
is
not
an
independent claim for relief, and it is therefore not addressed
at this time.
To the extent that Briggs' challenges Plaintiff's
right to recover punitive damages, such challenge is denied at
this
time.
39
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