Ray v. Roane
Filing
32
MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 9/20/18. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
TINA RAY,
)
)
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)
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)
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Plaintiff,
v.
MICHAEL ROANE,
Defendant.
Civil Action No. 5:17-cv-00093
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION
1
The defendant in this case, Michael Roane, is an Augusta County deputy sheriff. Roane
shot and killed a large dog that was in Tina Ray’s yard, after he responded to Ray’s home, got
out of his vehicle, and the dog approached him in the yard, barking at him. Roane asserts that he
did so in self-defense. Ray contends that the dog was on a zip-lead (although a long one strung
up between two trees) and could not have reached Roane at the time he shot it. All claims in this
lawsuit arise from this same incident.
Pending before the court are three pending motions, all filed by Roane. The first is
Roane’s motion to dismiss, in which he contends both that he is entitled to qualified immunity
and that the complaint should be dismissed in its entirety because it fails to state a claim. (Dkt.
1
Including this lawsuit, there are at least four lawsuits in this court that have been brought by Nexus or by
persons represented by Nexus attorneys and that have named Roane as a defendant. In addition to this case, he was
named in Nexus Servs., Inc. v. Moran, No. 5:16-cv-35 (W.D. Va.); Watford v. Roane, No. 5:17-cv-62 (W.D. Va.);
and Varner v. Roane, No. 5:17-cv-80 (W.D. Va.). According to documents submitted with defendant’s answer,
moreover, Nexus and its CEO, Mike Donovan, have been active in trying to get Roane terminated from his position.
(See, e.g., Dkt. Nos. 5-7; 5-8.) Based on these background facts, defense counsel characterizes this lawsuit as a
“strike suit.” (Def.’s Mem. Supp. Mot. to Dismiss 4, Dkt. No. 4.) The court acknowledges that Nexus or its
president appear to have sought opportunities to name Roane as a defendant in lawsuits and that they have publicly
expressed animosity toward Roane. But the court cannot conclude that the facts here—in which Roane admittedly
shot and killed a dog who was on a lead at the time—are so frivolous that the suit should be characterized as a strike
suit. See also infra at Section II.D. (denying defendant’s motion for sanctions). The court further notes that,
although plaintiff’s counsel initially listed his law firm as Nexus Caridades Attorneys, Inc., counsel now works for a
different entity that is allegedly independent from Nexus or its family of companies: Nexus Derechos Humanos
Attorneys, Inc.
No. 3.) The second is a motion for sanctions (Dkt. No. 16), which is based primarily on Roane’s
allegation that Ray included knowingly false statements in the complaint and continued to assert
those statements despite documents filed with the answer and an audio recording from the day of
the incident, in which Ray made a number of statements that directly contradict her lawsuit’s
allegations. The third motion is styled as a “motion for relief” (Dkt. No. 22), and it also asks for
dismissal of the lawsuit, or other appropriate sanction, on the ground that plaintiff failed to
comply with the court order directing her to file a reply to defendant’s answer. As a sanction,
Roane requests that the court “take appropriate action to enforce its Order, including dismissal of
this action on the basis of qualified immunity.” (Id. at 1.)
In her response to the third motion, Ray argues that she followed the court’s directions
and that her reply was adequate to address Roane’s assertions of qualified immunity. In a
footnote, counsel also accuses defense counsel of “abus[ing] this court and plaintiff” and states
that this abuse “should be addressed by this Court.” (Resp. to Mot. for Relief 5–6 n.1, Dkt. No.
26.) Ray has not filed any separate motion for sanctions, however. Thus, the three motions
described above are the only pending motions before the court. All have been briefed, were
argued before the court at a hearing, and are ripe for disposition.
Because the court concludes both that Roane’s actions were reasonable and that Roane is
entitled to qualified immunity on the federal claim, it will grant the motion to dismiss that claim.
With regard to the state-law claims, the court will decline to exercise jurisdiction over those
claims. For the reasons set forth in this opinion, the court will also deny the motion for sanctions
and deny as moot the motion for relief.
2
I. BACKGROUND
2
In the late morning on September 24, 2017, four Augusta County Sheriff’s Office
deputies drove to Tina Ray’s residence. They were there in order to serve her with an arrest
warrant and protective order. At some point after their arrival, Investigator Roane also arrived at
3
the residence. When he did, Ray’s dog, Jax, was in her front yard, which also contained a
trampoline and an above-ground pool. Jax is a very large dog, weighs approximately 150
pounds, and looks similar to a German Shepherd. Jax was tied to a twenty-five foot zip-lead, and
the lead was attached to a wire that stretched between two trees in the yard. Thus, Jax could run
past either of the trees for approximately twenty-five feet before the lead would reach its end.
According to the complaint, the other deputies had parked their cars on the street, but
Roane drove down Ray’s driveway and stopped suddenly in the yard, directly next to one of the
trees that was connected to the lead that restrained Jax.
Ray’s complaint alleges that Jax was “alarmed” as soon as Roane exited his truck and
slammed the door. As Roane got out of his truck, Jax “began barking while approaching
Roane,” although Ray denies Jax was “charging” or in any kind of attack mode. She further
alleges that Roane began backing away from the dog, although she denies that Roane was
running backward away from the dog. Ray alleges that, “in a short moment Jax had reached the
end of his line and could not get any closer to Roane.” At that point, Roane stopped backing up
because he saw that Jax could not get any closer and saw that Ray was holding on the fullyextended zip-lead and yelling Jax’s name. Roane “calmly, with an expressionless face, took a
step towards the dog, . . . put his gun to the dog’s head at point blank range, and shot” it.
2
The court takes these facts from Ray’s complaint. (Dkt. No. 1.)
3
Defendant denies that the dog belonged to Ray and instead claims that the dog belonged to her estranged
husband. For purposes of the motion to dismiss, however, the court credits the allegations in the complaint.
3
4
(Compl. ¶ 4.)
Roane fired a single shot at Jax, striking him in the head, and the shot eventually
killed the dog.
The complaint contains four claims, although Ray has since abandoned the second, her
5
substantive due process claim. This leaves three claims in the case:
1. A claim under 42 U.S.C. § 1983, alleging a violation of Ray’s Fourth Amendment
rights because Roane “unlawfully seized her personal property”;
2. A claim for conversion under Virginia law; and
3. A claim for intentional infliction of emotional distress under Virginia law.
Ray’s complaint also seeks attorney fees and punitive damages. At the time Roane filed his
Answer (Dkt. No. 5), he requested that plaintiff be required to file a reply to the Answer (Dkt.
No. 6), pursuant to Federal Rules of Civil Procedure 7(a)(7) and 12(a)(1)(C). Plaintiff did not
object to doing so, and the court directed that she file a reply to the answer. (Dkt. No. 18.) She
thereafter filed her reply, which specifically addressed Roane’s assertion that he is entitled to
qualified immunity. (Reply to Ans., Dkt. No. 20.)
II. DISCUSSION
A. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s allegations must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “requires the plaintiff to
articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling
4
Roane’s Answer paints a slightly different picture, although many of the facts are the same. He claims
that he was running backward, as the dog ran toward him while “growling, barking, and chomping with its mouth.”
Roane claims that he believed the dog had broken free from its lead and, in order to protect himself from serious
physical injury, he had no choice but to protect himself and that the only means he had at his disposal to do so was
his gun, so he pulled out his gun and fired one shot at the dog, hitting it in the head. (Answer ¶ 4.)
5
Ray has indicated that she “will not pursue her substantive due process claim.” (Pl.’s Resp. to Mot.
Dismiss 21 n.2, Dkt. No. 11.) Based on this, the court will grant the motion to dismiss that claim by agreement.
4
him to relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The plausibility standard requires
more than “a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
In determining whether the plaintiff has met this plausibility standard, the court must
accept as true all well-pleaded facts in the complaint and any documents incorporated into or
attached to it. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007). Further, it must “draw[] all reasonable factual inferences from those facts in the
plaintiff’s favor,” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it “need
not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable
conclusions, or arguments,’” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012)
(quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
B. Fourth Amendment Seizure Claim
1. Roane did not act unreasonably.
Roane argues both that the complaint fails to state a Fourth Amendment claim and that
the federal claim should be dismissed on the alternative basis of qualified immunity. As to the
former, he argues that the seizure here was not “unreasonable” and thus that there is no viable
Fourth Amendment claim. (Def.’s Mem. Supp. Mot. Dismiss 6, Dkt. No. 4 (citing Monroe v.
City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009).) As Roane correctly notes, whether a
seizure was unreasonable is an “objective determination,” and based on the “facts and
circumstances confronting [the officer] without regard to [his] underlying intent or motivation.”
Graham v. Connor, 490 U.S. 386, 396–97 (1989). Also, the officer’s conduct “must be judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. The Supreme Court also has instructed that “[t]he calculus of reasonableness
5
must embody allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.” Id.
In evaluating similar types of claims, the Fourth Circuit has noted that the safety of law
enforcement officers is a governmental interest of paramount importance. Unus v. Kane, 565
F.3d 103, 117 (4th Cir. 2009). Thus, in several dog-shooting cases in which an officer’s reaction
was held to be reasonable (and therefore not a Fourth Amendment seizure), the courts
emphasized officer safety concerns. See, e.g., Schutt v. Lewis, No. 6:12-cv-1697, 2014 WL
3908187, at *3 (M.D. Fla. August 11, 2014) (“The touchstone for reasonableness in dogshooting cases is typically officer safety . . . .”); Dziekan v. Gaynor, 376 F. Supp. 2d 267, 272
(D. Conn. 2005) (explaining that where an officer “could have reasonably assumed that the dog
posed an imminent threat to his safety,” his shooting of the dog was not an unreasonable
seizure).
There are a number of facts in the complaint that lead the court to conclude that the
seizure here was reasonable and thus that the claim should be dismissed. This is especially true
given that a determination of reasonableness under the Fourth Amendment is an objective
inquiry, and so the court does not need to determine or rely on what Roane was or was not
thinking. Viewing the facts in the complaint in that light, they include: (1) Jax was a large dog
weighing approximately 150 pounds; (2) Jax was “alarmed” by Roane’s arrival and by the
slamming of his truck door; (3) Jax was “barking while approaching Roane,” and Roane
responded by moving backward, away from the dog; and (4) that the entire incident took only a
“short moment.” Although plaintiff then says that Jax reached the end of his lead and that Roane
“knew” that fact when he stepped forward and shot Jax with a single shot, the court concludes
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that an objectively reasonable officer would have felt threatened in the circumstances
immediately preceding the shot and, having to make a split-second decision, might not have been
sure that Jax no longer posed a threat.
Ray repeatedly focuses on her allegation that Roane “knew” Jax was at the end of his
lead and stepped forward to shoot him. She also points to the allegations in the complaint that
she was “controlling Jax’s lead” and “summoning” him, and her allegation that Roane saw her
doing so. (Compl. ¶ 34.) She emphasizes that Roane’s knowledge that Jax posed no threat is
demonstrated by her allegation that he “calmly, and without expression, stepped towards Jax”
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and shot him at point blank range.” (Id. ¶ 39.) These facts alone are not dispositive, however.
As already noted, the court views the incident from the perspective of an objective, reasonable
“officer” faced with making a quick decision. Further, the fact that Roane was able to act calmly
in the face of danger does not mean that he did not assess Jax to be a threat. Moreover, at the
time Roane fired his weapon, the dog was within one step of Roane, which proximity suggests a
reasonable belief that the dog was an immediate threat.
The court believes that the facts here are similar to the circumstance in Schutt v. Lewis,
No. 6:12-cv-1697, 2014 WL 3908187 (M.D. Fla. Aug. 11, 2014), in which the court determined
that the officer acted reasonably in shooting a dog. There, an officer knocked on a door and then
stepped back onto the lawn. He heard barking, and when the plaintiff opened the door, her two
American Boxers exited the house. She called the dogs back, but only one of them came back to
her. The other ran toward the officer. The officer stepped back and unholstered his gun, and the
6
Many of these facts are belied by Ray’s statements in the recording produced by defendant, in which she
tells Roane that she did not know he had gotten out of his car until she heard the shot. Clearly, if she had been
summoning Jax and holding onto his lead, she would have noticed him moving toward Roane and Roane moving
backward. Nonetheless, the court will credit the allegations of the complaint, as it must, in ruling on the motion to
dismiss.
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plaintiff grabbed the dog’s hind legs stopping its advance. Nevertheless, the officer shot the dog
three times, killing it. The incident lasted four seconds.
Based on these facts, the court held that it was not an unreasonable seizure. The court
explained, “While in retrospect, trusting [the owner] to keep [the dog] at bay or attempting to use
less lethal force may have been preferable to shooting [the dog], an officer’s response need not
be the best possible reaction under the circumstances to be considered reasonable.” Id. at *3
(citing Altman v. City of High Point, N.C., 330 F.3d 194, 207 (4th Cir. 2003)).
Similarly, based on the facts in the complaint, which include Jax’s large size and his
proximity to Roane, the fact that Jax was on a lead that Roane might or might not have trusted to
hold Jax, it was not unreasonable for him to shoot the dog. This is true despite the fact that Ray
alleges she was holding Jax’s lead and summoning him, just as the officer in Schutt acted
reasonably in shooting the dog, despite the fact that the owner was holding its hind legs.
Whether or not an officer’s actions were “reasonable” will be heavily fact-dependent. In
a number of cases where the shooting of a dog was held to be unreasonable, though, courts treat
as important facts such as the dog being at least 10 feet away from the officer and/or the dog
retreating. See, e.g., Brown v. Muhlenberg Twp., 269 F.3d 205, 209 (3d Cir. 2001) (concluding
that the shooting of the plaintiff’s dog was unreasonable, where the officer “intentionally and
repeatedly shot a pet without any provocation and with knowledge that it belonged to the family
who lived in the adjacent house and was available to take custody” and where an independent
witness had said that the dog was approximately ten to fifteen feet away from the officer, was not
growling or barking, and was stationary); Criscuolo v. Grant Cty., 540 F. App’x 562, 563 (9th
Cir. 2013) (where the dog that was killed was stationary and was retreating, was at a distance of
10 to 20 feet from the officer and his police dog, and the dog’s owner was one to two feet away
8
from the dog and about to leash him, it was a jury question as to whether the killing was
reasonably necessary to protect the police dog); Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008)
(where a dog had already been shot twice and hidden under a bush, and then had come out
whimpering, limping, and trying to go to the back yard, away from the officer and toward its
owner, the officer’s shooting at the dog two more times was not reasonable). The facts in all
those cases are a far cry from the facts here.
In this case, by contrast, Jax was indisputably very close to Roane. And although Ray
insists she was “controlling” his lead, there is no allegation that Jax was calm or retreating. In
similar circumstances, courts have held either that the officer’s conduct was reasonable, and so
there was no violation, or that qualified immunity applied. In Stephenson v. McClelland, 632 F.
App’x 177 (5th Cir. 2015), for example, the court held that the officer was entitled to qualified
immunity for his shooting of a dog. There, the officer got out of his car to approach a suspect,
and as the suspect walked back to the house, a large dog appeared, startling the officer and
showing its teeth. Although the person later said the dog was merely “smiling,” the court ruled
that qualified immunity applied because the officer “was forced to make a split-second judgment
in a tense situation and he acted to protect himself.” 632 F. App’x at 185. The court also cited to
several other cases, including Grant v. City of Houston, 625 F. App’x 670, 674 (5th Cir. 2015),
in which the court held an officer was entitled to qualified immunity where he shot a dog after
being surprised when the dog showed its teeth and charged toward the officer’s legs.
Similarly, in Dziekan v. Gaynor, 376 F. Supp. 2d 267 (D. Conn. 2005), the court held that
the officer had acted reasonably and thus that no claim would lie on the plaintiff’s version of the
facts. According to the plaintiff, the officer approached a man and his 55 to 60-pound dog, who
was not on a leash and was running toward the officer, probably at a rate of three feet per second.
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The officer shot the dog when it was still approximately fifteen feet from defendant, or five
seconds away based on the estimated speed. Again, the court noted that the situation called for
“split-second decision-making” and that the officer acted reasonably. Id. at 272.
In another case factually similar to the situation here, Warboys v. Proulx, 303 F. Supp. 2d
111 (D. Conn. 2004), an officer and his police dog were tracking a suspect. They told a young
man to go inside his house, and as he went to the house, a pit bull weighing 90 to 100 pounds,
escaped through the door. The man tried to grab the dog, but failed. As the dog moved toward
the officers, the man yelled “he won’t hurt you,” but an officer fired one shot into the dog’s head,
killing him. He was killed approximately 30 feet from the door of the house and 5 to 10 feet
from the officer. The entire incident from the time the dog escaped until the shot occurred over a
5-second interval. The court accepted as true that the dog was not barking or growling, but was
in a friendly mood with his tail wagging, and that he was a loving pet that had never attacked an
animal or a person. Nonetheless, the court reasoned that the law did not require the officer “to
wait until the approaching animal was within biting distance or was leaping at him before taking
protective action.” Id. at 119. The court also held that even if the act was unreasonable, the
officer was entitled to qualified immunity. Id. at 119 n.14.
McCarthy v. Kootenai Cty., No. 08-cv-294, 2009 WL 3823106 (D. Idaho Nov. 12, 2009),
also involved a dog that was in the yard of his residence. There, a sergeant was serving process
for a civil lawsuit, and he entered a fenced yard and walked about 200 yards up the hill. When
he was 30 yards from the residence, he noticed a large German Shepherd in the yard. He began
walking backwards slowly, but the dog alerted and starting charging towards the officer,
followed by a second dog. The officer yelled for the dogs to stop, but they continued toward him
barking and growling. The officer fired one shot at the German Shepherd, striking its head and
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injuring it badly. The court held that he acted reasonably. The court noted that an officer “need
not use the least harmful alternative in dealing with a dangerous situation in which officer safety
is at issue.” Id. at *6. It, too, noted that “the calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396–97
(1989)).
Akin to the courts in many of the above cases, the court concludes that it was not
unreasonable for Roane to shoot a 150-pound, “alarmed” and barking dog that had advanced on
him, closing to within feet, all in a “short moment.” Especially taking into account the strong
interest in officer safety and Roane’s need to make a quick decision in a tense situation, the court
concludes that his actions were objectively reasonable.
For all of these reasons, the court will grant the motion to dismiss the Fourth Amendment
claim on the grounds that the seizure was reasonable. In the alternative, Roane is entitled to
qualified immunity, as the court discusses next.
2. Roane is entitled to qualified immunity.
Roane contends, in the alternative, that his actions as alleged by plaintiff entitle him to
qualified immunity. Under the doctrine of qualified immunity, government officials “performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014); Cloaninger v. McDevitt, 555 F.3d 324, 331
(4th Cir. 2009). Ray has admitted that, at all relevant times, Roane was performing a
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governmental function that involved judgment and discretion. (Reply to Answer ¶ 142.) Thus,
he was performing discretionary functions. In that circumstance, an official will be protected by
qualified immunity if his actions were objectively reasonable. Anderson v. Creighton, 483 U.S.
635, 639 (1987); Malley v. Briggs, 475 U.S. 335, 341 (1986). “The burden of proof and
persuasion with respect to a defense of qualified immunity rests on the official asserting that
defense.” Durham v. Jones, 737 F.3d 291, 299 (4th Cir. 2013). It is important to resolve the
issue of qualified immunity “early in the proceedings” because qualified immunity is “an
entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S.
194, 200–01 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); Wilson v. Kittoe,
337 F.3d 392, 397 (4th Cir. 2003).
Qualified immunity generally involves a two-step inquiry: (a) whether the plaintiff’s
allegations state a claim that the defendant’s conduct violated a constitutional right; and if so, (b)
whether that right was clearly established at the time of the alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). As
already noted, the court does not believe that plaintiff’s allegations support that Roane violated
Ray’s constitutional rights and thus qualified immunity is appropriate on that ground alone. The
court also concludes that the second prong of the analysis, i.e., whether the facts alleged show a
violation of Ray’s clearly established constitutional rights, also favors Roane.
As to this second prong, a law enforcement officer is not expected to know all of the legal
limits of well-known constitutional rights; the officer is entitled to immunity if a reasonable
officer would not have understood that what he is doing violates the plaintiff’s constitutional
rights. Anderson, 483 U.S. at 638–39. As stated by the United States Supreme Court in Malley,
“if officers of reasonable competence could disagree” on whether the action was reasonable,
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immunity should be granted. 475 U.S. at 341; Springmen v. Williams, 122 F.3d 211, 214 (4th
Cir. 1997). Under this standard, all but the “plainly incompetent or those who knowingly violate
the law” are protected. Malley, 475 U.S. at 341.
Since at least 2003—and thus including the time that Roane shot Jax—it was well
established that, if an officer acted unreasonably in shooting a dog, it could constitute a seizure
within the meaning of the Fourth Amendment. Specifically, Altman v. City of High Point, N.C.,
330 F.3d 194 (4th Cir. 2003), was the first Fourth Circuit case to hold that the shooting of a dog
could constitute a Fourth Amendment seizure. The court there, however, held that the shooting
deaths of four dogs in separate incidents by two animal control officers were not unreasonable
seizures. In all of those incidents, the dogs were “at large” and not in a fenced-in yard or
otherwise constrained by their owners. The court noted this fact as significant in determining
that the officers’ conduct was reasonable. 330 F.3d at 205–06; id. at 207 (distinguishing other
cases on that basis).
But the court must “look not to whether the right allegedly violated was established ‘as a
broad general proposition’ but whether ‘it would be clear to a reasonable official that his conduct
was unlawful in the situation he confronted.’” Raub v. Campbell, 785 F.3d 876 (4th Cir. 2015)
(quoting Saucier v. Katz, 533 U.S. 194, 201–02 (2001), as modified by Pearson, 555 U.S. 223).
See also Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir. 2007) (“A right is ‘clearly established’ if
the contours of the right are sufficiently clear so that a reasonable officer would have understood,
under the circumstances at hand, that his behavior violated the right.”) (citations and internal
quotations omitted). Roane is entitled to qualified immunity, then, if a reasonable officer in his
position would not have known it was “clearly” unreasonable to shoot Jax.
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The reasonableness of a defendant’s belief is judged from an objective standard in light
of the clearly established law at the time of the defendants’ exercise of discretion, Anderson, 483
U.S. at 639. Moreover, the court may not judge the reasonableness of the defendants’ actions
“with the benefit of 20/20 hindsight.” Id.
For the same reasons that the court concluded Roane acted reasonably, a reasonable
officer also would not have known it was “clearly” unreasonable to shoot Jax in these
circumstances. At worst, this is a classic case of a “bad guess in a gray area,” Raub, 785 F.3d at
991, or a “reasonable but mistaken judgment,” Messerschmidt v. Millender, 565 U.S. 535, 546
(2012) (citations omitted). Accordingly, Roane is entitled to qualified immunity.
C. State-Law Claims of Conversion and Intentional Infliction of Emotional Distress
Because the court is dismissing the only federal claim in the case, the court has discretion
to decline supplemental jurisdiction over the state-law claims and to dismiss them without
prejudice pursuant to 28 U.S.C. § 1367(c)(2). In exercising its discretion, the court must
consider factors of judicial economy, convenience, fairness, and comity. Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 (1988). Generally, though, when a case in its early stages, courts
will decline to exercise jurisdiction. 13 D Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure, (3d ed., April 2018 Update) (“The commonest example of when a court
might decline supplemental jurisdiction is when the jurisdiction-invoking claim is dismissed
relatively early in the proceedings.”). Here, although the case has been pending for some time,
no discovery has occurred (because it was stayed by the court), and so it will not save extensive
judicial resources for the court to retain those other claims, as opposed to letting Ray re-file in
state court if she so chooses. The court also sees no unfairness or inconvenience to either party
from a dismissal without prejudice. The court finds that the comity factor also favors declining
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jurisdiction because the remaining claims are state-law torts between two Virginia residents that
occurred in Virginia. Thus, the state courts have a significant interest in resolving these types of
claims.
For these reasons, the court declines to exercise jurisdiction over the state-law claims,
and so they will be dismissed without prejudice.
D. Motions for Sanctions and for Relief
The court has considered Roane’s motion for sanctions, but declines to impose sanctions
in this case. First of all, to the extent Roane was seeking dismissal on qualified immunity
grounds as a sanction, he has obtained a dismissal of the federal claim against him.
Second, although Roane argues that the claims here were unsupported and even
contradicted by other facts, the court does not believe any mischaracterizations require
sanctions. It is worth noting that this case involved the use of force that admittedly killed a pet.
The court cannot say that the claim was frivolous.
The court agrees that there are inconsistencies between allegations in the complaint and
other facts available to plaintiff’s counsel, including the recording. By way of example only, in
that recording—and contrary to the allegations in the complaint—Ray tells Roane:
“If you’d come towards me he woulda bit you.”
She did not see the incident, had not seen Roane get out of the truck, and did
not think he had gotten out until she heard the shot. (If true, this would
contradict that Ray was summoning Jax and holding on to his lead and also
contradict the complaint’s references to Roane shooting Jax while Ray looked
on.)
Roane would not have known that the dog would not bite him.
Additionally, according to the investigative report into the incident conducted by the Sheriff’s
Department (as conveyed in a press report from the Office of the Commonwealth’s Attorney,
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which explains why Roane will not be prosecuted), Ray told the investigator that the dog “could
snap that lead and actually get off it if he wants off of it at any time.” (Dkt. No. 5-3, at 2.)
But Ray has addressed her statements on the recording and stated that they were false,
repeatedly noting that her statements were given under duress and threat of arrest and a threat of
a potential search of her house. (Reply to Answer ¶ 2.) It is not clear to the court that this
assertion is entirely true. For example, some of the statements that are contrary to allegations in
the complaint were made after Roane said in the recording that the officers would not be
searching her house. Additionally, Ray’s comment to the investigator occurred on a different
day altogether. Nonetheless, on the record of this case, and assuming that there are adequate
reasons for counsel to believe the statements on the recording were given under duress, the court
does not believe any of the actions or allegations questioned by defendant warrant sanctions.
To the extent that the motion for sanctions is based on some of the out-of-bounds
language in the complaint, however, the court cautions plaintiff’s counsel, as it has in other
cases, that the type of inflammatory language used in the complaint here will not be tolerated in
this court. Given the court’s dismissal of the complaint in its entirety, the court will not strike
any portions of the complaint. It notes, however, that language contained in paragraph 3
(describing Roane’s driving approach “like a bat out of hell, screeching to a halt”); paragraph 5
(“drunk and emboldened with power”), paragraph 1 (“blowing his brains out execution style”),
and paragraphs 4, 39, 40 (“execution-style”), at a minimum, would fall within the type of
inflammatory characterizations not appropriate for a federal complaint.
With regard to the motion for relief, which seeks dismissal on the grounds of qualified
immunity, it has been rendered moot by the court’s dismissal of the federal claim. Accordingly,
that motion will be denied as moot.
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III. CONCLUSION
For the reasons stated above, the court will grant defendant’s motion to dismiss the
Fourth Amendment claim, which will be dismissed with prejudice. The state-law claims will be
dismissed without prejudice. The motion for sanctions will be denied, and the motion for relief
will be denied as moot. An appropriate order will follow.
Entered: September 20, 2018.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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