Bradley et al v. Stupar et al

Filing 25

OPINION AND ORDER granting 14 Motion to Dismiss for Failure to State a Claim; granting 14 Motion for Summary Judgment. Defendant's Motion to Dismiss, Doc. 14, is GRANTED and this matter is DISMISSED WITH PREJUDICE as to unnamed DEA Ag ents John Doe 1, 2, 3, and 4. Defendant's Motion for Summary Judgment, Doc. 14. is GRANTED as to Defendant Michael Stupar, and JUDGMENT IS AWARDED in favor of Defendant Stupar. In so far as Plaintiffs have requested leave to amend their Amended Complaint, Doc. 20, leave to amend is DENIED as futile. Copy of Order provided to all counsel of record. Signed by District Judge Henry C. Morgan, Jr. on 12/21/2015. (bgra)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

DEC 2 1 2015

Newport News Division
CLERK, US DISTRICT COURT
NORFOLK, VA

HRICK BRADLEY, et al.,
Plaintiffs,

v.

Civil Action No. 4:15cvl7

DEA AGENT MICHAEL S. STUPAR, ct al.,
Defendants.

OPINION & ORDER

This matter is before the Court on Defendant United States* ("Defendant*') Motion to

Dismiss or, in the Alternative for Summary Judgment ("Motion to Dismiss"' or "Motion for

Summary Judgment"').

Doc.

14. and

Plaintiffs'

Motion

to Transfer ("Motion

to

Transfer/Amend"). Doc. 20. For the reasons set forth herein, Defendant's Motion for Summary

Judgment is GRANTED as to Defendant Michael Stupar. and JUDGMENT IS AWARDED in
favor of Defendant Stupar. Defendant's Motion to Dismiss is GRANTED as to the lour (4)
remaining John Doe DEA Agents, and this matter is DISMISSED WITH PREJUDICE as to
unnamed DEA Agents John Doe 1. 2, 3, and 4. Plaintiffs' Request to Amend is DENIED as
futile.
I. BACKGROUND

A. Factual Allegations'
After a comprehensive investigation into a drug trafficking organization allegedly lead by

1 "In considering a motion to dismiss, (the Courlj accepts] as true all well-pleaded allegations and view[s] the
complaint in the light most favorable to the [non-moving party]." Venkatraman v. RE1 Svs.. Inc.. 417 F.3d 418, 420

(4th Cir. 2005) (citing Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130. 1134 (4th Cir. 1993)). The Court cautions,
however, that the facts alleged by the parties are recited here for the limited purpose of deciding the instant Motion.
The recited facts are not factual findings upon which the parties may rely for any other issue in this proceeding.

an individual named Christopher Barrett ("Barrett"), on March 11, 2013 a search warrant was
issued at the request of Drug Enforcement Agent Bradley Stupar ("Defendant Stupar") for a
residence identified as 315 Pennsylvania Avenue, Hampton, Virginia ("315 Pennsylvania").

Am. Compl. *f 14. Although the investigative team indicated they had observed Barrett entering
and/or exiting the residence at 315 Pennsylvania as recently as the week prior, Plaintiffs, the
residents of 315 Pennsylvania, allege that Barrett has never resided at or entered their residence,
and that they are not acquainted with Barrett in any way. Am. Compl. fflf 15-16.
On March 13, 2013, at what Plaintiffs allege was approximately 3:00a.m., Erick and

Eboni Bradley were asleep at their residence, 315 Pennsylvania, when they were startled awake

by spotlights and a bullhorn. Am. Compl. f 17. After hearing someone continuously shouting

"315 come out with your hands up," the Bradleys allegedly exited their home to find it
surrounded by DEA agents, including Defendant Stupar, as well as members of the Hampton
Police Department. Am. Compl. K 17. Plaintiffs allege that upon making contact with the
officers, the officers refused to provide Plaintiff Erik Bradley with a copy of the search warrant
and refused to look at his identification. Am. Compl. If 18. Plaintiffs contend that instead Mr.

Bradley was told to "shut up" while he and his wife were removed from the residence, patted
down, and placed in handcuffs. Am. Compl. If 18.

During execution of the search warrant, the residents of 315 Pennsylvania, Plaintiffs Erik
and Eboni Bradley, Shaheem Pruden, and minor Plaintiffs Jane Doe I and II, were allegedly

handcuffed and placed into separate police cars without heat and interrogated for approximately
five (5) hours. Am. Compl. ^f 22.

Simultaneously, Defendants allegedly located and arrested

Barrett at another residence but continued to question Plaintiffs even after Barrett was taken into

custody. Am. Compl. ^ 24. Plaintiffs contend that as a result of their unlawful detention they

have suffered great mental and physical anguish that has led to devastating financial hardship.
Am. Compl. 127-31.
B. Procedural History

This action was brought against sixteen (16) Defendants, four (4) of whom are John Doe

DEA Agents. Doc. 1. Plaintiffs were only able to serve Defendant Stupar and have since
dismissed all remaining named Defendants, excluding the four (4) John Doe Agents and

Defendant Stupar. Doc. 9. Accordingly, on October 28, 2015, the Court received a Notice of
Substitution that the United States of America had been substituted as Defendant in this matter

because Defendant Stupar was alleged and certified to have been acting within the scope of his
federal employment at all times relevant to this proceeding. Doc. 16.

Following substitution, the Court granted the United States' Motion to Dismiss Plaintiffs'
common law tort claims for failure to exhaust the prerequisite administrative remedies under the
Federal Torts Claims Act, but it retained jurisdiction over the constitutional claims asserted by
Plaintiffs under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). Doc. 23. Defendant United States now asserts that Plaintiffs have, firstly, failed to state
a claim for which relief can be granted under Bivens, and secondly, that Defendant Stupar is
insulated from suit under the doctrine of qualified immunity.

Doc. 15. Plaintiffs have not

opposed Defendant's Motion, electing instead to file a Motion to Transfer venue to the Hampton
Circuit Court. Doc. 20. Plaintiffs' request for transfer to the Hampton Circuit Court was denied
on December 4, 2015, Doc. 24, but Plaintiffs have alternatively sought leave to amend their
Amended Complaint "to add that the Defendants obtained the search warrant for 315

Pennsylvania Avenue by either fraud or mistake and that Defendant Stupar's Affidavit was not
accurate." Doc. 21.

II. LEGAL STANDARDS

A. Motions under Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; "it does not

resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."

Republican Party of North Carolina v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face.'"

Ashcroft v. Iabal. 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)). Although a court must accept
as true all well-pleaded factual allegations, the same is not true for legal conclusions. Iqbal. 556
U.S. at 678.

"Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice." Id. In deciding the motion, a court may consider the
facts alleged on the face of the complaint as well as "'matters of public record, orders, items
appearing in the record of the case, and exhibits attached to the complaint'" without converting a
Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Moore v. Flagstar Bank. 6

F. Supp. 2d 496, 500 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Fed.
Prac. & Proc. § 1357 (1990)); see Pueschel v. United States. 369 F.3d 345, 353 n.3 (4th Cir.
2004) (citations omitted).
B. Motions for Summary Judgment

Summary judgment under Federal Rule of Civil Procedure 56 is appropriate only when a

court, viewing the record as a whole and in the light most favorable to the nonmoving party,
determines that there exists no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56; see^ e.g.. Anderson v. Liberty Lobbv. Inc.. 477
U.S. 242, 248-50 (1986); Celotex Corp. v. Catrett. 477 U.S. 317, 322-24 (1986); Terry's Floor

Fashions v. Burlington Indus.. 763 F.2d 604, 610 (4th Cir. 1985). Once a party has properly

filed evidence supporting the motion for summary judgment, the nonmoving party may not rest

upon mere allegations in the pleadings, but must instead set forth specific facts illustrating

genuine issues for trial. Celotex, 477 U.S. at 322-24. Such facts must be presented in the form
of exhibits and sworn affidavits. Failure by the nonmoving party to rebut the motion with such
evidence on its behalf will result in summary judgment when appropriate. "[T]he plain language

of Rule 56(c) mandates the entry of summary judgment. . . against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Id. at 322.
A mere scintilla of evidence is insufficient to withstand a motion for summary judgment.

Rather, the evidence must be such that the fact-finder reasonably could find for the nonmoving

party. See Anderson, 477 U.S. at 252. Although the Court must draw alljustifiable inferences in
favor of the nonmoving party, in order to successfully defeat a motion for summary judgment a

nonmoving party cannot rely on "mere belief or conjecture, or the allegations and denials
contained in his pleadings." Dovle v. Sentry Ins.. 877 F. Supp. 1002, 1005 (E.D. Va. 1995)

(citing Celotex. 477 U.S. at 324). Local Civil Rule 56(B) requires that each brief "include a
specifically captioned section listing all material facts as to which the moving party contends
there is no genuine issue and citing the parts of the record relied on to support the listed facts as

alleged to be undisputed." E.D. Va. Loc. Civ. R. 56(B). Further, "[i]n determining a motion for
summary judgment, the Court may assume that facts identified by the moving party in its listing
of material facts are admitted, unless such a fact is controverted in the statement of genuine

issues filed in opposition to the motion." Id. (emphasis added).

/. The Doctrine ofQualified Immunity

Qualified immunity is immunity from civil liability enjoyed by government officials

performing discretionary functions provided their conduct "does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known." Wheeler v.
Gilmore. 998 F. Supp. 666, 669 (E.D. Va. 1998) (quoting Harlow v. Fitzgerald. 457 U.S. 800,
818 (1982)). "[A] reasonably competent public official should know the law governing his
conduct." Harlow. 457 U.S. at 819. Qualified immunity "specifically protects public officials

from the specter of damages liability for judgment calls made in a legally uncertain
environment." Rvder v. United States. 515 U.S. 177, 185 (1995) (citing Harlow. 457 U.S. at

806). The Supreme Court of the United States has stated, "[a] law that fails to specify the precise
action that the official must take in each instance creates only discretionary authority; and that

authority remains discretionary however egregiously it is abused." Davis v. Scherer. 468 U.S.
183, 196 n.14 (1984). In fact, this Court asserted that "there are few, if any, acts performed by
officials which are not discretionary." Williamson v. City of Virginia Beach, 786 F. Supp. 1238,
1260 (E.D. Va. 1992).

In determining whether a government official is entitled to qualified immunity, courts
must make a two-fold determination.

Pittman v. Nelms. 87 F.3d 116, 118 (4th Cir. 1996).

Firstly, the Court must determine whether a "defendant's conduct violated a constitutional right
of the plaintiff." Id. at 119. If so established, the Court must then determine "whether the law
governing the violation was clearly established at the time of the incident, and whether a
reasonable person in the defendant's position should have known that his conduct was illegal.
Both are issues of law for the court." Id (internal citations omitted). The United States Court of

Appeals for the Fourth Circuit has clarified that "negligence or good faith error" on the part of

public officials "will not establish a constitutional claim" for purposes of qualified immunity.
Lopez v. Robinson. 914 F.2d 486,490 (4th Cir. 1990). The Supreme Court expounded that until

the threshold legal questions underlying qualified immunity are resolved, "discovery should not
be allowed."

Harlow. 457 U.S. at 818. "Unless the plaintiffs allegations state a claim of

violation of clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery."

Michell v. Forsyth. 472 U.S. 511, 526

(1985).

C. Motion to Amend under Rule 15(a)(2)

Federal Rule of Civil Procedure 15(a)(2) provides that courts "should freely give leave"

to amend a complaint "when justice so requires." Fed. R. Civ. P. 15(a)(2). "This liberal rule

gives effect to the federal policy in favor of resolving cases on their merits instead of disposing
of them on technicalities." Laber v. Harvev. 438 F.3d 404, 426 (4th Cir. 2006). However, this

Court may deny leave to amend "when the amendment would be prejudicial to the opposing

party, there has been bad faith on the part of the moving party, or the amendment would have
been futile." Laber. 438 F.3d at 426 (citing Johnson v. Oroweat Foods Co.. 785 F.2d 503, 509

(4th Cir. 1986)). The Court has discretion to deny a motion for leave to amend as futile if the

proposed amendment would be "clearly insufficient or frivolous on its face." Johnson. 785 F.2d
at 510.

III. ANALYSIS

Whether a defendant is entitled to dismissal under the doctrine of qualified immunity is

premised upon whether a plaintiff has plausibly claimed that the defendant violated his clearly
established constitutional rights. See Michell. 472 U.S. at 526; Trulock v. Freeh. 275 F.3d 391,

399 (4th Cir. 2001). Accordingly, the Court will begin by addressing Defendant's challenge

under Rule 12(b)(6), as a finding that Plaintiffs have not sufficiently pled their constitutional
claims is a prerequisite to finding that Defendant Stupar is entitled to qualified immunity.
A. Defendant's Motion to Dismiss under Rule 12(b)(6)

Plaintiffs' brought this suit pursuant to Bivens alleging violations of their First, Fourth,
and Eighth Amendment rights. Am. Compl. fflf 6, 7» 11> 26- In order t0 prevail on a Bivens
claim, Plaintiffs must establish that they suffered "injury to a constitutionally protected interest at
the hands of federal officials." Middlebrooks v. Leavitt. 525 F.3d 341 (4th Cir. 2008). "The

factors necessary to establish a Bivens violation will vary with the constitutional provision at

issue," Iqbal. 556 U.S. at 676, but Bivens "liability is personal, based upon each defendant's own
violations." Trulock, 275 F.3d at 402. Plaintiffs, therefore, "must plead that each Government-

official defendant, through the official's own individual actions, has violated the Constitution."
Iqbal, 556 U.S. at 676.
/. The First Amendment

"The threshold question in any First Amendment challenge, of course, is whether any

protected First Amendment right is involved. If the answer to that question is no, then 'we need

go no further.'" Willis v. Town of Marshall. N.C.. 426 F.3d 251, 257 (4th Cir. 2005). The First
Amendment guarantees free exercise of religion, freedom of speech and the press, the right to

peaceably assemble, and the right "to petition the Government for a redress of grievances." U.S.
Const, amend. I. The Supreme Court has explicitly stated that Bivens does not extend "to a
claim sounding in the First Amendment." Iqbal. 556 U.S. at 676. Even if the Court were to
imply a Bivens remedy, Plaintiffs' Amended Complaint does not articulate which of Plaintiffs'
First Amendment rights were allegedly deprived.

Plaintiffs allege that Plaintiff Erick Bradley "was told to shut up" by the Defendant

8

officers when he requested to see a copy of the search warrant. Am. Compl. ^ 5. To the extent
that this is the crux of Plaintiffs' First Amendment claims, Plaintiffs have failed to state a claim

upon which reliefcan be granted. "Arresting officers simply do not violate their arrestee's First
Amendment rights by telling him or her to shut up." Minvard v. Walsh, No. CV 13-00110,2014
WL 1029835, at *4 (CD. Cal. Mar. 17, 2014). Plaintiffs have neither alleged which First

Amendment rights the Defendant officers are accused of violating nor the means by which the
individual Defendants violated those rights.

Accordingly, Plaintiffs have failed to state a

cognizable claim under both the First Amendment and Bivens.
/*/". The Eighth Amendment

Plaintiffs contend that "[a]t all times relevant during Plaintiffs' unlawful detention, it was

the duty of the Defendants to exercise reasonable and acceptable measures to protect their Eighth

Amendment rights from cruel and unusual punishment."

Am. Compl. If 7.

The Eighth

Amendment protects against the imposition of excessive bail and fines, as well as the infliction
of cruel and unusual punishment. U.S. Const, amend. VIII. It is well established that "the

Eighth Amendment's prohibition against cruel and unusual punishment . . . applies only post
conviction." Venev v. Oieda, 321 F. Supp. 2d 733,439 (E.D. Va. 2004). Alleged offending acts

occurring before conviction foreclose "application of the Eight[h] Amendment under Ingrahman
v. Wright." Bruette v. Montgomery County. Maryland. 70 F. App'x 88, 94 (4th Cir. 2003)

(citing Ingraham v. Wright. 430 U.S. 651, 671 n.40 (1977)). Plaintiffs are not alleged to have
been convicted of any offense, and their Eighth Amendment claims are alleged to arise only from
the events of March 13, 2013. Am. Compl. ffl| 7, 19, 20, 22, 25, 27. Accordingly, Plaintiffs have

failed to state a claim upon which relief can be granted under the Eighth Amendment.

Hi. The Fourth Amendment

The Fourth Amendment protects the "right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures" and the right to the
issuance of a warrant upon probable cause "particularly describing the place to be searched, and

the persons or things to be seized." U.S. Const, amend. IV. Accusations of unlawful search and
seizure require the Court to balance a defendant's alleged intrusion on a plaintiffs "Fourth
Amendment interests against its promotion of legitimate governmental interest." Davis v. Black,
No. 3:09cv557, 2010 WL 1779982, at *9 (E.D. Va. Apr. 29, 2010) (citing Delaware v. Prouse.

440 U.S. 648, 654 (1979)).

Plaintiffs' allegations that they were unlawfully detained by

Defendants on March 13, 2013 are akin to "unreasonable seizure" claims under the Fourth

Amendment. Am. Compl. fflf 18-23,25,27.

The Fourth Circuit has adopted a "heightened pleading standard" in Bivens actions.
Dunbar Corp. v. Lindsev. 905 F.2d 754, 764 (4th Cir. 1990). This heightened standard operates,

in practice, much like Federal Rule of Civil Procedure 9(b)'s requirement that allegations of
fraud be pled "with particularity." Martin v. Malhovt, 830 F.2d 237, 257 (D.D.C. 1987) (citing
Fed. R. Civ. P. 9(b)). "[Cjomplaints against federal officials for constitutional tort causes of
action must clearly set forth such facts that will show the existence of the clearly established
constitutional right and what the defendants did to violate it—'who did what to whom and
why.'" Await v. Whalen. 809 F. Supp. 414, 416 (E.D. Va. 1992) (quoting Dewev v. University
of New Hampshire. 694 F.2d 1, 3 (1st Cir. 1982)); see also Bartrug v. Rubin. 986 F. Supp. 332,
335 (E.D. Va. 1997). Plaintiffs have not satisfied the requirements of this heightened standard.

"In considering a motion to dismiss, [the Court] accept[s] as true all well-pleaded

allegations."

Venkatraman. 417 F.3d at 420 (citing Mvlan Labs.. Inc., 7 F.3d at 1134).

10

Although John Doe DEA Agents 1, 2, 3, and 4 are unidentified, Plaintiffs have alleged that "[o]n
or about March 13, 2013, and all other times relevant hereto, Defendant DEA Agent Michael S.

Stupar... and Defendant DEA Agents, John Doe 1, 2, 3, and 4, were agents and/or employees
of the Defendant, United States Drug Enforcement Agency and at all times were acting within

the scope of their employment." Am. Compl. If 2. Therefore, the Court will accept as true these
allegations and assume, for purposes of Defendant's Motion to Dismiss, that Defendant DEA
Agents John Doe 1, 2, 3, and 4 were acting within the scope of their federal employment at all
times relevant to the present action.

Of the constitutional violations alleged, Plaintiffs factual contentions most clearly pled a
cause of action under the Fourth Amendment. However, Plaintiffs have not satisfied the basic

"who did what to whom and why" standard as required in Bivens actions. Plaintiffs contend,

with broad sweeping generalizations, that "one or more of the Defendant officers" refused to
furnish Plaintiff Erick Bradley "with a copy of the search warrant" and "removed him and his
wife, Plaintiff Eboni Pruden Bradley, from the residence, patted them down and placed them in

handcuffs." Am. Compl. If 18. Plaintiffs then allege that Plaintiffs Shaheem Pruden, Jane Doe I,
and Jane Doe II were patted down, handcuffed and placed in separate police cars, but do not
allege by whom. Am. Compl. fflf 20, 21.

Plaintiffs further allege that they were held in custody for approximately five (5) hours

while being "vigorously and harshly interrogated and their home searched and ransacked by the
Defendant officers." Am. Compl. If 22. Again, Plaintiffs have not alleged with specificity which
officers are allegedly responsible for which violations. Even interpreting the facts in light most
favorable to Plaintiffs, it is not plausible that each of the five (5) Defendant officers were

simultaneously interrogating all five (5) Plaintiffs while at the same time searching the Plaintiffs'

11

home, which is how the Amended Complaint is pled. Plaintiffs further plead that "the Defendant
officers continued to unlawfully detain and restrain the Plaintiffs of their liberty by words and
acts that Plaintiffs feared to disregard," but have not stated what those "words and acts" were nor
which Defendants committed which actions and as to which Plaintiffs. Am. Compl. 1f 25.

To the extent that Plaintiffs are contending that the search and seizure was unreasonable
because of a deficient warrant, Plaintiffs must allege that Defendant Stupar "deliberately or with

a 'reckless disregard for the truth' made material false statements in his affidavit." Miller v.
Prince George's County. MP, 475 F.3d 621, 627 (4th Cir. 2007). Plaintiffs have failed to make

such a showing. Plaintiffs allege only that Defendant Stupar obtained the warrant "after a
lengthy and thorough investigation," that he obtained the warrant "based upon information
obtained through surveillance and other investigative methods," and that "Defendant Stupar
knew that Barrett resided on Pennsylvania Avenue and in fact, members of the investigative

team [ ] [had] observed Barret entering and/or existing that residence [315 Pennsylvania] as
recently as March 7, 2013." Am. Compl. ffif 14, 15. In consideration of the heightened pleading

standard as required in Bivens actions, Plaintiffs have failed to state a plausible claim for relief
under the Fourth Amendment.

iv. Summary

As Plaintiffs' Amended Complaint fails to state a plausible claim for relief, this matter is
DISMISSED WITH PREJUDICE as to Defendants unnamed DEA Agents John Doe 1, 2, 3,

and 4. Defendant Stupar is also subject to dismissal from this matter pursuant to Rule 12(b)(6),
but because Defendant Stupar has pled qualified immunity, the Court must determine if he is
entitled to have judgment entered in his favor.

12

B. Motion for Summary Judgement

In Mitchell, the Supreme Court held that "[u]less the plaintiffs allegations state a claim
of violation of clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery." 472 U.S. at 526. Once a defendant has

properly supported its motion for summary judgment, the nonmoving party may not rest upon

mere allegations in the pleadings, but must instead set forth specific facts illustrating genuine
issues for trial. Celotex, 477 U.S. at 322-24. "In determining a motion for summary judgment,

the Court may assume that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition
to the motion." E.D. Va. Loc. Civ. R. 56(B) (emphasis added).

In this Circuit, a defendant claiming qualified immunity "bears the burden of

demonstrating that the conduct of which the plaintiff complains 'falls within the scope of the
defendant's duties.'" In re Allen, 106 F.3d 582, 594 (4th Cir. 1997) (quoting Shechter. 79 F.3d

at 268). Plaintiffs have alleged that "[o]n or about March 13, 2013, and all other times relevant
hereto, Defendant DEA Agent Michael S. Stupar... and Defendant DEA Agents, John Doe 1, 2,

3, and 4, were agents and/or employees of the Defendant, United States Drug Enforcement
Agency and at all times were acting within the scope of their employment." Am. Compl. %
2.
Further, the United States has set forth specific facts showing that Defendant Stupar was acting

in connection with his discretionary duties related to the investigation of Barrett and the "Barrett

Drug Trafficking Organization" at the time the alleged offenses occurred. Doc. 15 at 5, 8, 9.
However, because DEA Agents John Doe 1, 2, 3, and 4 are unidentified, the United States
cannot demonstrate that the alleged unconstitutional actions of each of the John Doe DEA

Agents fell within the scope of their individual duties. Accordingly, only Defendant Stupar is

13

eligible for qualified immunity.

The Court has already determined that Plaintiffs have not sufficiently alleged any
constitutional violations, and Plaintiffs have not come forth with evidence beyond the pleadings

to show that there are genuine issues of material fact warranting a denial of summary judgment.
As Plaintiffs elected not to respond to Defendant's Motion for Summary Judgment, the Court
will assume the material facts identified by the nonmoving party are admitted. E.D. Va. Loc.

Civ. R. 56(B). Defendant claims that at the time the search warrant was executed, "no DEA
agents were located on or in front of the property at the time," and that "Agent Stupar was
standing several car lengths down the street." Doc. 15 at 8. Viewing the record as a whole and

in the light most favorable to the nonmoving party, the Court determines that Defendant Stupar is
entitled to summary judgment on qualified immunity grounds. Defendant Stupar was acting
within the scope of his official duties at all times relevant to the allegations, and Plaintiffs have
failed to allege that Defendant Stupar violated their clearly established constitutional rights.
Accordingly, JUDGMENT IS AWARDED in favor of Defendant Stupar.
C. Request for Leave to Amend

In so far as Plaintiffs have requested leave to amend their Amended Complaint, the
Court has discretion to deny a request for leave to amend if the proposed amendment would be

"clearly insufficient or frivolous on its face." Johnson, 785 F.2d at 510. Here, Plaintiffs propose
amending their Amended Complaint to "add that the Defendants obtained the search warrant for
315 Pennsylvania Avenue by either fraud or mistake and that Defendant Stupar's Affidavit was
not accurate." Doc. 21 at 2. The Court finds that Plaintiffs' proposed amendments would be

futile, as they suffer from the same defects present in Plaintiffs' Amended Complaint.
Firstly, Plaintiffs' proposed amendments do not identify which Defendants are alleged to

14

have obtained the search warrant under fraudulent pretenses or which facts are alleged to have

been fraudulently incorporated into the warrant. Such broad sweeping allegations do not meet

the heightened pleading standard required when alleging Bivens violations. Secondly, in order
to state a claim for relief under the Fourth Amendment based on a deficient warrant, Plaintiffs

must allege that Defendant Stupar, acting "deliberately or with a 'reckless disregard for the truth'
made material false statements in his affidavit." Miller. 475 F.3d at 627. Plaintiffs' proposed

amendments only allege that Defendant Stupar's affidavit was "not accurate," and "[a] plaintiffs

'allegations of negligence or innocent mistake' by a police officer will not provide a basis for a
constitutional violation." Miller v. Prince George's Ctv.. MP. 475 F.3d 621, 627-28 (4th Cir.

2007) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)) (emphasis in original).

Lastly, the Court must consider the policy interests inherent in the doctrine of qualified

immunity. It is mandated that, "[u]nless the plaintiffs allegations state a claim of violation of
clearly established law, a defendant pleading qualified immunity is entitled to dismissal before
the commencement of discovery." Mitchell, 472 U.S. at 526. The Supreme Court has cautioned
that the rule of qualified immunity should not "be transformed from a guarantee of immunity

into a rule of pleading," Anderson v. Creighton. 483 U.S. 635, 639 (1987), and the Court has
already determined that Plaintiffs' Amended Complaint does not state a plausible claim for relief
under the First, Eighth, and Fourth Amendments.

Accordingly, Defendant Stupar is entitled to qualified immunity so that he will not have

to face any further litigation burdens. Iqbal, 556 U.S. at 672 (quoting Mitchell. 472 U.S. at 526).
The Court also finds that the amendments proposed by Plaintiffs would by futile, as they are
"clearly insufficient" to defeat Defendant's Motion for the reasons articulated herein. See Fields
v. Martin. No. 13cvl0166, 2014 WL 4064807, at *3-4 (E.D. Mich. May 30, 2014), report and

recommendation adopted by, 2014 WL 4064343 (E.D. Mich. Aug. 18. 2014) (denying a

plaintiffs motion to amend his complaint on futility grounds as qualified immunity would have
been granted on a defendant's motion for summary judgment regardless of amendment). In so
far as Plaintiffs have requested leave to amend, such a request is DENIED as futile.
IV. CONCLUSION

For the reasons set forth herein. Defendant's Motion to Dismiss. Doc. 14. is GRANTED,

and this matter is DISMISSED WITH PREJUDICE as to unnamed DEA Agents John Doe 1.
2. 3. and 4.

Defendant's Motion for Summary Judgment, Doc. 14, is GRANTED as to Defendant
Michael Stupar, and JUDGMENT IS AWARDED in favor of Defendant Stupar.
In so far as Plaintiffs have requested leave to amend their Amended Complaint, Doc. 20.
leave to amend is DENIED as futile.

The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.
Senior United States District Judiie
HENRY COKE MORGAN. JR.

SENIOR UNITED STATES DISTRICT JUDGE

Norfolk. Virginia
December ,3-/, 2015

16