Sutherlin v. Smith et al

Filing 56

ORDER granting 36 Motion to Amend/Correct Date Stated September 24th, 2013 to September 25th, 2013 re: 19 Reply to Response to Motion; granting 37 Motion to Amend/Correct Date Stated September 24, 2013 to September 25, 2013 re: 19 Reply to Response to Motion; granting 43 Motion to Strike 35 Response; denying 50 Motion to Amend/Correct 2 Complaint; denying 54 Motion to Amend Plaintiff's Oral Argument at Motion to Dismiss Hearing; granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jackson L. Kiser on 2/17/2016. (mlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
ALVIN L. SUTHERLIN, JR.,

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Plaintiff,
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v.
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LIEUTENANT J.W. SMITH, SERGEANT )
H.S. RICHARDSON, OFFICER N.M.
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SLOVER, OFFICER M.C. PACE,
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OFFICER R.C. LANDRUM, OFFICER
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D.C. LANCASTER, OFFICER W.C.
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SHIVELY, OFFICER W.R. MERRILL,
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OFFICER J.D. DIXON, and OFFICER L.D. )
LAND,
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Defendants.
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Case No. 4:15-cv-00037
ORDER
By: Hon. Jackson L. Kiser
Senior United States District Judge

On November 5, 2015, Defendants moved to dismiss Plaintiff’s Complaint for failure to
state a claim on which relief may be granted. (See Mot. to Dismiss, Nov. 5, 2015 [ECF No. 6].)
The parties briefed this matter, 1 and on January 29, 2016, they appeared before me to argue their
positions. Having fully considered their filings and arguments, the matter is now ripe for
disposition.
For the reasons stated in the accompanying Memorandum Opinion, I hereby GRANT IN
PART and DENY IN PART Defendants’ Motion to Dismiss. I hereby DISMISS Plaintiff’s 42
U.S.C. § 1985 conspiracy claim and 46 U.S.C. app. § 322 claim as well as any claim on slander
1

I make the following rulings for purposes of considering Defendants’ motion to dismiss. I hereby
GRANT Plaintiff’s motions to amend [ECF Nos. 36, 37] his Response to Brief in Support of Motion to
Dismiss [ECF No. 19] so as to state the correct date of the incidents in question. I hereby GRANT
Defendants’ motion to strike [ECF No. 43] Plaintiff’s Brief in Support of Complaint [ECF No. 35] as
redundant or impertinent. Finally, I hereby DENY Plaintiff’s Motion to Amend Oral Argument at the
Motion to Dismiss Hearing [ECF No. 54], which asks the Court to accept, as evidence opposing
Defendants’ motion to dismiss, a video on the City of Danville Police Department’s use and maintenance
of video evidence. There is no occasion to consider this video in relation to the motion to dismiss.

or on a violation of the Sixth Amendment, Va. Code Ann. § 19.2-59, or Article I, § 10 of the
Virginia Constitution. Respecting Plaintiff’s 42 U.S.C. § 1983 claim, I hereby DISMISS it only
to the extent that it attempts to state a claim on the entry into Ms. Owens’ apartment and to the
extent that it names Defendants in their official capacity. With exception of the claim on the
alleged unannounced, no-knock entry, I hereby DISMISS the following Defendants from the
case: Lieutenant Smith, Officer Slover, Officer Dixon, Officer Shively, Officer Merrill, Officer
Pace, and Officer Landrum.
At the hearing on the motion to dismiss, Plaintiff advised that he had filed a motion for
leave to amend the Complaint, to supplement the Complaint, and to join additional defendants.
(See Pl.’s Mot. for Leave to Amend & Supplement Compl.; and for Joinder of Additional Defs.,
Jan. 26, 2016 [ECF No. 50].) The Motion cites Rules 15(a)(2), 15(d), and 20, respectively. (Id.
at pg. 2.) Because Plaintiff filed it before the hearing on Defendants’ motion to dismiss and
without the benefit of the Court’s ruling on the motion to dismiss, I hereby DENY Plaintiff’s
motion as premature. If, upon Plaintiff’s review of this Court’s rulings on the motion to dismiss,
Plaintiff should still desire to amend his Complaint, to supplement his Complaint, to join
additional parties, or to accomplish some combination thereof, he is advised to file an
appropriate motion in accordance with the Rules.
The clerk is directed to forward a copy of this Order and accompanying Memorandum
Opinion to pro se Plaintiff and to Defendants’ counsel of record.
Entered this 17th day of February, 2016.

s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE