Rose v. Centra Health, Inc. et al

Filing 74

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on August 7, 2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA

8/7/2017

LYNCHBURG DIVISION

TERSHAUD SAVORYEA ROSE,

CASE NO. 6:17-CV-00012
Plaintiff,
MEMORANDUM OPINION

v.
CENTRA HEALTH, INC., ET AL.,

JUDGE NORMAN K. MOON

Defendants.

This case, brought by Plaintiff Tersahud Savoryea Rose, seeks compensatory and
punitive damages against numerous defendants involved in the pursuit, arrest, and prosecution of
Plaintiff following his departure from the hospital on February 4, 2016. The matter is before the
Court upon three partial motions to dismiss for failure to state a claim. The first motion was
filed by the City of Lynchburg (“the City”), and the police officers employed by it (Defendants
Clark, Bragg, and Miller). (Dkt. 24). The second motion was filed by Centra Health, Inc.
(“Centra”)—the hospital where Plaintiff was treated prior to the incident. (Dkt. 25). The third
motion was filed by Rudolph Tidwell—the supervising security guard at Centra the night of the
incident. (Dkt. 28).
The motion filed by the City, Clark, Bragg, and Miller will be granted. All Counts will be
dismissed against the City because Plaintiff has failed to plead facts sufficient to establish a
Monell-style claim against it. Counts 1, 3, and 4 will be dismissed against Defendants Miller,
Bragg, and Clark because they are entitled to qualified immunity.
The motion filed by Centra will be granted in part and denied in part. Counts 1–4 will be
dismissed as to Centra because Plaintiff has failed to plead a plausible Monell-style claim against

1

it. 1 Count 12 will be dismissed because it fails to state a claim for negligent entrustment of a taser.
Centra’s request for dismissal of Plaintiff’s punitive damages claims will be denied because Rule
12(b)(6) is not the proper mechanism for dismissing prayers for relief. Nevertheless, the punitive
damages request will be capped at $350,000 for Counts 5–9, in accordance with Virginia law.
Likewise, Defendant Tidwell’s motion will be granted in part and denied in part. The
motion will be denied as to Counts 1–4 because Plaintiff has pled facts sufficient to support § 1983
claims against him, and it will be denied as to Counts 4 and 9 because Plaintiff has properly pled a
conspiracy to maliciously prosecute under § 1983 and Virginia common law. The motion will be
granted as to Count 10, however, because Plaintiff has not pled facts sufficient to support a finding
of intentional infliction of emotional distress by Tidwell. In fact, Count 10 will be dismissed in
full.
Plaintiff has conceded that Count 11 should be dismissed in its entirety, so it will be
dismissed. Additionally, LPD John Does 1–10, LPD Jane Does 1–10, Centra John Does 1–10, and
Centra Jane Does 1–10 will be dismissed and terminated from the case, pursuant to Rule 4(m),
because they have not been served. (See dkts. 18, 34).
I. LEGAL STANDARD
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a
complaint to determine whether the plaintiff has properly stated a claim; “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). Although a
complaint “does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
1

Additionally, Plaintiff’s counsel conceded at oral argument that the Monell-style § 1983
claims against Centra were factually insufficient to survive a challenge under Rule 12(b)(6).
2

544, 555 (2007) (citations omitted).
A court need not “accept the legal conclusions drawn from the facts” or “accept as true
unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc.
v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Factual allegations must be
enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, with all
allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff’s
favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does
“not require heightened fact pleading of specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
II. FACTS AS ALLEGED
The 122-page, 619-paragraph Complaint in this case contains far more allegations than
can be summarized here. Instead, the Court will limit itself to a brief summary of the facts
relevant to the resolution of the instant motions.
On February 4, 2016, after falling off a bench, Plaintiff was transported to the emergency
room at Lynchburg General Hospital, which is owned and operated by Defendant Centra. (Dkt 1
¶¶ 22–25). While at the hospital, Plaintiff was transferred to a room and an intravenous lock
(“IV lock”) was placed in his right hand. (Id. ¶ 28). He was treated for abrasions and given
Versed, a sedative, which rendered him unconscious. (Id. ¶¶ 26–28). Sometime before 7:00
p.m., Plaintiff was cleared for release after being examined by a physician and a mental health
worker. (Id. ¶ 29).
When Plaintiff awoke, he decided to leave the hospital. He dressed himself and walked
out of the room. The IV lock in his hand was not attached to any equipment at that time. (Id.
3

¶¶ 30–31). Christopher Woody, a hospital security guard, saw Plaintiff and informed him that he
needed to have the IV lock removed before leaving. (Id. ¶ 31). Plaintiff stated he would take it
out himself and continued his search for an exit. (Id. ¶ 31). When Woody began to pursue him,
Plaintiff ran to an elevator with hopes of reaching the cafeteria. (Id. ¶ 33). Plaintiff then rode the
elevator to the basement and left through the cafeteria. (Id. ¶ 34).
Defendant Miller, an off-duty Lynchburg Police Department (“LPD”) officer working at
the hospital, used his police radio to request assistance from on-duty officers. (Id. ¶ 37). Based
on information he received from an unidentified nurse who had received information from an
unidentified person, Miller described Plaintiff as a “black male subject” with “possible warrants”
outstanding.

(Id. ¶¶ 37, 86). Defendants Clark and Bragg, both LPD officers, were off-duty

nearby and received Miller’s radio call for assistance; they joined the pursuit in an unmarked car.
(Id. ¶ 45). Meanwhile, Defendant Tidwell, a security supervisor employed by Centra, called 9-11 and requested police assistance in detaining Plaintiff. (Id. ¶¶ 39–40). He had also ordered his
subordinate security guards to detain Plaintiff. (Id. ¶ 40).
Defendant Cooper, a Centra security guard, drove a marked security vehicle onto public
streets in pursuit of Plaintiff. (Id. ¶¶ 41–42). Cooper spotted Plaintiff in a nearby parking lot,
but Plaintiff eluded him by running up a hill. (Id. ¶ 43). Defendants Clark and Bragg arrived in
the parking lot shortly after Plaintiff had escaped Cooper. (Id. ¶ 48). As they were continuing
their search, Clark observed Plaintiff run into the parking lot of a nearby bank. (Id.). Clark
exited his vehicle and drew his taser and threatened to fire it if Plaintiff did not stop running. (Id.
¶ 50). Plaintiff stopped and turned around; he told Clark that he had no authority to stop him.
(Id. ¶ 51). Plaintiff turned around and began walking away. (Id.).
At this time, Bragg pulled his vehicle ahead of Plaintiff’s path, exited his vehicle,
grabbed Plaintiff, and pushed him up against the vehicle. (Id. ¶ 52). Bragg and Clark then
4

attempted to handcuff Plaintiff, but he resisted by stiffening his arms without striking either
officer. (Id. ¶ 55). Tidwell and Cooper arrived on the scene at this time, and Tidwell began to
assist. (Id. ¶¶ 56, 60). Clark then knocked Plaintiff’s legs out from under him, bringing all four
men to the ground; Plaintiff incurred lacerations as a result. (Id. ¶ 61).
Clark climbed on top of Plaintiff’s back and grabbed his right arm. (Id. ¶ 62). Tidwell
then used the “drive stun mode” of the taser to administer two five-second bursts to Plaintiff’s
back. (Id. ¶ 63). These bursts left scars on Plaintiff’s back and caused significant pain. (Id.).
Clark then placed Plaintiff in a chokehold. (Id. ¶ 67). Meanwhile, Bragg punched and pinched
Plaintiff several times. (Id. ¶ 64). Clark told Plaintiff he was “under arrest,” and along with help
from other officers, Plaintiff was handcuffed. (Id. ¶¶ 69-71).
Plaintiff was placed in a marked police car and transported back to the emergency room.
(Id. ¶¶ 71, 73). Bragg and Clark sought an arrest warrant for Plaintiff for disorderly conduct, but
the magistrate refused to issue a warrant. (Id. ¶ 77). Tidwell, after conversing with Bragg or
Clark, obtained a misdemeanor warrant against Plaintiff for trespassing on Centra’s property.
(Id. ¶ 78). Bragg then obtained a misdemeanor warrant against Plaintiff for obstruction of
justice. (Id.). Plaintiff was arrested and held without bond on these charges for fourteen days
before he was granted bail. (Id. ¶ 79). The misdemeanor trespass charge was dismissed on
March 10, 2016, for lack of probable cause. (Id. ¶ 80). On September 26, 2016, a jury found
Plaintiff not guilty of obstruction of justice. (Id. ¶ 81).
III. DISCUSSION
The Complaint contains twelve counts: (1) unlawful seizure, false imprisonment, and
false arrest in violation of the Fourth Amendment; (2) excessive force in violation of the Fourth
Amendment; (3) malicious prosecution in violation of the Fourth Amendment; (4) conspiracy to
maliciously prosecute in violation of the Fourth Amendment; (5) common law assault; (6)
5

common law battery; (7) common law false imprisonment; (8) common law malicious
prosecution; (9) common law conspiracy to maliciously prosecute; (10) intentional infliction of
emotional distress; (11) statutory conspiracy to maliciously prosecute; and (12) negligent
entrustment of a taser.
A. Motion #1: Defendants Clark, Bragg, Miller, and the City (Dkt. 24)
Defendants seek partial dismissal of Counts 1–4 and full dismissal of Count 11. Plaintiff
has conceded and withdrawn Count 11. (Dkt. 36 at ECF 20). The remaining Counts will be
considered in turn.
1. Count 1: Unlawful Seizure, False Imprisonment, and False Arrest (§ 1983)
Count 1 alleges that Defendants Clark, Bragg, and Miller violated Plaintiff’s Fourth
Amendment right by detaining him without probable cause. (Dkt. 1 ¶ 99–112). Furthermore,
Count 1 alleges that the City is liable as a municipality for its failure to train and supervise its
officers with regards to detention and arrest. (Id. ¶ 121–34). Defendants Clark, Bragg, Miller,
and the City ask the Court to dismiss Count 1 against them. Clark, Bragg, and Miller assert that
they are entitled to qualified immunity, while the City argues that Plaintiff has failed to state a
claim of municipal liability. (Dkt. 26 at 1).
a. Qualified Immunity: Defendants Bragg and Clark
Qualified

immunity

protects

“government

officials

performing

discretionary

functions . . . insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Wilson v. Layne, 526
U.S. 603, 609 (1999) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Occupy
Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013). To be entitled to qualified immunity, a
defendant must show that even if there was a constitutional violation, the right in question was
not clearly established at the time that the defendant acted. Henry v. Purnell, 652 F.3d 524, 531
6

(4th Cir. 2011) (en banc); Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th
Cir. 2006).
Defendants Bragg and Clark assert that they are entitled to qualified immunity because
they reasonably relied on information from Defendant Miller, a fellow officer. (Dkt. 26 at 3).
They argue that, regardless of whether there was probable cause to arrest Plaintiff, they had
reason to believe probable cause existed because they were told my Miller that Plaintiff had
“possible warrants” outstanding and should be apprehended. (Dkt. 1 ¶ 37).
Police officers routinely rely on information from other officers, and reliance—absent
See, e.g., Whiteley v. Warden, Wyo. State

clear, contradictory evidence—is reasonable.

Penitentiary, 401 U.S. 560, 568 (1971) (“Certainly police officers called upon to aid other
officers in executing arrest warrants are entitled to assume that the officers requesting aid” have
established probable cause.); Lucas v. Shivley, 31 F. Supp. 3d 800, 813 (W.D. Va. 2014)
(“Indeed, a police force could not function without reasonable reliance on the statements and
efforts of others.” (citations omitted)).
Although the arrest may ultimately be found to be in violation of the Fourth Amendment,
see, e.g., Whiteley, 401 U.S. at 568–69, the officers who reasonably relied on fellow law
enforcement are shielded from individual liability. See, e.g., United States v. Hensley, 469 U.S.
221, 232 (1985) (“In such a situation, of course, the officers making the stop may have a goodfaith defense to any civil suit.”); Liu v. Phillips, 234 F.3d 55, 57 (1st Cir. 2000) (“Where the
authorizing officer has made a factual mistake but the mistake is not apparent, immunity for the
officer who reasonably assisted is well settled.” (citations omitted)); Lucas v. Shively, 31 F.
Supp. 3d 800, 813–17 (W.D. Va. 2014), aff’d, 596 F. App’x 236 (4th Cir. 2015). This is because
qualified immunity protects officers who “could reasonably believe that their actions were
lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011). Defendants Bragg and Clark
7

could reasonably believe that their actions were lawful because they reasonably relied in good
faith on information from a fellow officer.
Thus, even if Defendants Bragg and Clark violated Plaintiff’s Fourth Amendment rights,
they were not being “plainly incompetent” by “transgressing bright lines” when they decided to
arrest Plaintiff. Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998). A reasonable officer would
have relied on Miller’s call for help in the absence of clear contradictory evidence. In fact,
Plaintiff’s evasive actions would have served to confirm Miller’s statement that Plaintiff was
wanted for criminal conduct. Cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (explaining that
unprovoked flight, when combined with other circumstances, can lead to reasonable suspicion).
Simply put, the conduct of Defendants Bragg and Clark did not “violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”

Id.

Accordingly, they are entitled to qualified immunity on Count 1.
b. Qualified Immunity: Defendant Miller
Defendant Miller’s role in the incident was meaningfully different from that of
Defendants Bragg and Clark, and it warrants separate consideration. Based on information he
received from an unidentified nurse who had received information from an unidentified person,
Miller was the one who requested Bragg and Clark’s assistance that ultimately led to Plaintiff’s
arrest. (Dkt. 1 ¶¶ 37, 86). The Complaint does not allege that Miller actually arrested Plaintiff,
but Plaintiff contends that Miller is liable because he “request[ed] or direct[ed] another to do so.”
(Id. ¶ 101).
The problem with this argument, however, is that the Complaint does not allege that
Miller directed Bragg and Clark specifically to arrest Plaintiff. It merely states that Miller
requested aid in “apprehending” Plaintiff. (Id. ¶ 37). Miller can be held liable only for conduct
that he specifically directed or had knowledge of, see Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
8

1994), and not every apprehension is an arrest. See, e.g., Terry v. Ohio, 392 U.S. 1, 22 (1968).
Miller’s request would certainly include an apprehension short of an arrest, such as a brief
investigatory stop.
Furthermore, the facts demonstrate that Miller possessed reasonable articulable suspicion
to support such an apprehension when he called for backup. From Miller’s perspective, he was
aware of an individual with an IV lock in his arm who was running through the hospital to evade
a Centra security guard, and he had been told that the individual had possible warrants out
against him. (Id. ¶¶ 31–37, 86). Although in a perfect world Miller would have had time to
verify this information, what he knew justified at least a Terry stop of Plaintiff to investigate the
situation further, especially considering the heightened security concerns in hospitals. If Miller
had simply ignored the information he received and a patient or employee was injured, he likely
would have been viewed as negligent. In this era of active-shooter incidents and acts of public
violence, Miller had an obligation to investigate these claims of a man acting erratically in the
hospital. Even if Miller was ultimately incorrect in his assessment, the Court cannot second
guess his split-second judgments based on the benefit hindsight. See Maciariello v. Sumner, 973
F.2d 295, 298 (4th Cir. 1992) (“Officials are not liable for bad guesses in gray areas; they are
liable for transgressing bright lines.”).
Accordingly, the Court will dismiss Count 1 because Plaintiff has failed to plead a
constitutional violation by Miller. There are no allegations that he actually conducted the arrest,
and the Complaint states that he requested assistance in apprehending Plaintiff after developing
reasonable articulable suspicion. He cannot be held liable for Plaintiff’s eventual arrest—even if
it was unlawful—because he did not specifically direct the arrest.
Alternatively, even if Miller’s request for apprehension were construed as unlawfully
directing Plaintiff’s arrest, he would be entitled to qualified immunity because he reasonably
9

relied in good faith on the information available to him at that time. See, e.g., Hensley, 469 U.S.
at 232 (“In such a situation, of course, the officers making the stop may have a good-faith
defense to any civil suit.”); Liu, 234 F.3d 55, 57 (1st Cir. 2000) (“Where the authorizing officer
has made a factual mistake but the mistake is not apparent, immunity for the officer who
reasonably assisted is well settled.” (citations omitted)); Lucas, 31 F. Supp. 3d at 813–17 (W.D.
Va. 2014), aff’d, 596 F. App’x 236 (4th Cir. 2015).
2. Counts 3 & 4: Malicious Prosecution and Conspiracy to Maliciously Prosecute (§ 1983)
Defendants Bragg and Clark ask the Court to grant them qualified immunity as to Counts
3 and 4 because the “right to be free from malicious prosecution is not clearly established in the
Fourth Circuit.” (Dkt. 26 at 4).
This contention is correct in the technical sense that the Fourth Circuit does not recognize
common law malicious prosecution as an “independent cause of action.” Lambert v. Williams,
223 F.3d 257, 260, 262 (4th Cir. 2000) (“Common law malicious prosecution is not itself
redressable under § 1983.”).

Nevertheless, the Fourth Circuit has stated that “a malicious

prosecution claim under § 1983 is properly understood as a Fourth Amendment claim for
unreasonable seizure which incorporates certain elements of the common law tort.” Burrell v.
Virginia, 395 F.3d 508, 514 (4th Cir. 2005) (citing Lambert, 223 F.3d at 261). More specifically,
the plaintiff must satisfy two elements: (1) the plaintiff was seized pursuant to legal process that
was not supported by probable cause; and (2) the criminal proceedings terminated in plaintiff’s
favor. Id.; see also Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009) (describing the two
elements as “a wrongful seizure and a termination in her favor of the proceedings following her
seizure”).
Thus, Plaintiff’s malicious prosecution and conspiracy to maliciously prosecute claims—
although inartfully drafted—are based upon law that is clearly established in the Fourth Circuit.
10

That is, “a claim founded on a Fourth Amendment seizure that incorporates elements of the
analogous common law tort of malicious prosecution” is recognized in this circuit. Lambert, 223
at 262; see also Seung Lee, 584 F.3d at 199. Malicious prosecution “is not an independent cause
of action,” Lambert, 223 F.3d at 262, but a similar claim is cognizable under the Fourth
Amendment. Seung Lee, 584 F.3d at 199.
Despite Defendants’ incorrect assertion that the “right to be free from malicious
prosecution is not clearly established in the Fourth Circuit,” (dkt. 26 at 4), they are nevertheless
entitled to qualified immunity. This is because the first element of both Count 3 and Count 4 is
seizure without probable cause, see Burrell, 395 F.3d at 514; see also Seung Lee, 584 F.3d at
199, for which Defendants are entitled to qualified immunity. See supra Subsection III.A.1.
Stated differently, the malicious-prosecution-style Fourth Amendment claim to that the Fourth
Circuit has recognized requires Plaintiff to prove an unlawful seizure. As discussed above,
Defendants Bragg, Clark, and Miller are entitled to qualified immunity for their seizure of
Plaintiff. Thus, it logically follows that they are entitled to qualified immunity from a Fourth
Amendment claims that requires proof of an unlawful seizure. Accordingly, Counts 3 and 4 will
be dismissed.
3. City of Lynchburg: Counts 1–4
Plaintiff’s § 1983 claims—Counts 1, 2, 3, and 4—have also been brought against the City
pursuant to Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–91 (1978).
See id. (holding that “local governments . . . may be sued for constitutional deprivations visited
pursuant to governmental ‘custom’”). Plaintiff alleges that the City has “engaged in deliberately
indifferent training of LPD officers” with regard to (1) detention and arrest; (2) lawful
application of force; and (3) malicious prosecution. (Dkt. 1 ¶¶ 130, 233, 300, 363).
The City asks the Court to dismiss all of these claims on the ground that Plaintiff has
11

failed to plead facts sufficient to establish that the City’s training or procedures were
constitutionally deficient. The City argues that the Complaint is devoid of any allegations that
the officers’ actions were actually part of a custom or policy as required under Monell.
This assertion is correct as to Counts 1, 3, and 4. Despite the exceptional length of the
Complaint, the claims found in Counts 1, 3, and 4 are nothing more than “labels,” “conclusions,
and a formulaic recitation of the elements,” which “will not do.” Twombly, 550 U.S. at 555. The
Complaint does not describe widespread conduct or detail the policies that Plaintiff believes to
be unconstitutional. See Spell v. McDaniel, 824 F.2d 1380, 1388 (4th Cir. 1987) (“Neither the
existence of such a policy or custom nor the necessary causal connection can be established by
proof alone of the single violation charged.”). The allegations are based solely on this isolated
incident and “a policy or custom of permitting LPD officers” to do what they did here, but no
detail about the policy is provided. (Dkt. 1 ¶ 131). Without additional detail, Counts 1, 3, and 4
violate the Twombly/Iqbal standard because they are nothing more than formulaic recitations of
the elements combined with legal conclusions.
Count 2, however, does provide additional details. Unlike Counts 1, 3, and 4, Count 2
contains citations to LPD’s actual use-of-force policy that was in place at the time of the
incident.

(Dkt. 1 ¶ 234; dkt. 1-4).

Plaintiff alleges that LPD’s use of force policy was

unconstitutional because it allowed for use of a taser in circumstances that were prohibited by the
Fourth Circuit. See Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892,
909 (4th Cir.), cert. denied, 137 S. Ct. 61 (2016) (“[A taser] may only be deployed when a police
officer is confronted with an exigency that creates an immediate safety risk and that is
reasonably likely to be cured by using the taser.”).
“When a municipal ‘policy or custom’ is itself unconstitutional, i.e., when it directly
commands or authorizes constitutional violations, the causal connection between policy and
12

violation is manifest and does not require independent proof.” Spell, 824 F.2d at 1387 (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 822 (1985)). But this presupposes that the policy
was actually being exercised when the alleged constitutional violation occurred. See Tuttle, 471
U.S. at 822–23 (“[N]o evidence was needed other than a statement of the policy by the municipal
corporation, and its exercise.” (emphasis added)). It is not enough that a given policy was
unconstitutional and Plaintiff’s rights were violated. The violation needs to be committed by
someone actually governed by the policy in question. See id.
Here, the person who is alleged to have used a taser unconstitutionally, Defendant
Tidwell, was not a member of the LPD. He was a special conservator of the peace. There are no
allegations that Tidwell was bound by the LPD’s use-of-force policy, and the policy itself states
that its purpose was “to establish guidelines concerning the authorization, implementation,
investigation and documentation of the use of force by officers of the Lynchburg Police
Department.” (Dkt. 1-4 at 1) (emphasis added); see also id. (“It shall be the policy of the
Lynchburg Police Department that officers will use only that force necessary to protect life and
effect lawful objectives.” (emphasis added)). Likewise, the order appointing Tidwell makes no
mention of complying with local law-enforcement policies. Instead, it states that Tidwell may
use “up to the same amount of force as would be allowed to a law-enforcement officer employed
by the Commonwealth or any of its political subdivisions making a lawful arrest.” (Dkt. 1-3 at
2). 2 Absent any allegations the Tidwell was bound by LPD’s use-of-force policy, the City
cannot be held liable for the actions of someone outside its purview. 3

2

This is in contrast to other circumstances where an order appointing a special conservator
of the peace has placed the new officer under the direct supervision of local law enforcement.
See, e.g., Austin v. Paramount Parks, Inc., 195 F.3d 715, 719 (4th Cir. 1999); Rodriguez v.
Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003).
3

At oral argument, Plaintiff’s counsel sought to salvage his claims against the City by
pointing out that Defendant Clark, who is an LPD officer, pointed his taser at Plaintiff during his
13

Accordingly, the Court will grant the City’s motion to dismiss Count 2 because Plaintiff
has failed to plead that Tidwell was bound by or exercising LPD’s use-of-force policy when he
used his taser against Plaintiff. Even if LPD’s policy was unconstitutional, it cannot be the butfor or proximate cause of an alleged constitutional violation committed by someone not
governed by the policy.
B. Motion #2: Defendant Centra (Dkt. 25)
Centra asks the Court to dismiss Counts 1, 2, 3, 4, and 12. Centra also asks the Court to
strike or limit Plaintiff’s request for punitive damages.
1. Counts 1–4: Section 1983
Plaintiff lodges four Monell-style claims against Centra on the theory that its policies or
customs were the cause of Plaintiff’s constitutional deprivations. 4

Typically, a private

corporation would not be liable under § 1983, but the Fourth Circuit has recognized an exception
to this rule where private security guards have been appointed as special conservators of the
peace (“SCOPs”). Austin v. Paramount Parks, Inc., 195 F.3d 715, 719, 727–28 (4th Cir. 1999)
(“Monell and its progeny apply equally to a private corporation that employs special police
officers.”). This means corporations like Centra can be held liable “only when an official policy
or custom causes the alleged deprivation of federal rights” Id. at 728 (emphasis in orginial).
Claims based on respondeat superior are improper. Id.
pursuit. (Dkt. 1 ¶ 50). This argument fails for two reasons. First, because Clark did not use the
taser to harm Plaintiff physically, it has no bearing on Plaintiff’s excessive-force claim. Second,
Clark’s mere pointing of the taser is not necessarily unconstitutional under Estate of Armstrong,
which discussed when a taser can be lawfully “deployed” (that is, actually administering a shock,
not simply drawing the weapon). Compare Estate of Armstrong, 810 F.3d at 909 (“[A taser]
may only be deployed when . . . .”), with id. at 862 (Officer Gatling drew his taser . . . . That
warning had no effect, so Gattling deployed the taser.”) (demonstrating that drawing a taser is
not synonymous with deploying a taser).
4
At oral argument, Plaintiff’s counsel conceded that his client’s § 1983 claims against
Centra were factually insufficient to survive a motion to dismiss. In an abundance of caution, the
Court will proceed with its analysis in case counsel’s comments at oral argument were not
intended as a formal withdrawal of claims.
14

Plaintiff’s Monell-style claims against Centra are based on three different theories of
liability: (1) deficient hiring policy; (2) deficient training policy; and (3) deficient discipline
policy. Each will be considered in turn, and Counts 1–4 will be dismissed as against Centra.
a. Deficient Hiring Policy
In order to assert § 1983 liability on a deficient-hiring theory, Plaintiff must show that
Centra acted with “deliberate indifference” in exercising its hiring policies. Bd. of Cty. Comm’rs
of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 410 (1997). This “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of his
action.” Id. Such proof must go beyond “the mere probability that any officer inadequately
screened will inflict any constitutional injury.” Id. at 412. “[I]t must depend on a finding that
this officer was highly likely to inflict the particular injury suffered by the plaintiff.” Id.
(emphasis in original).
Here, Plaintiff has failed to allege facts sufficient to meet this “stringent standard of
fault.” Most notably, the Complaint lacks any allegations regarding Tidwell’s background or the
background of other SCOPs. Without such allegations, it is unclear how Tidwell or others were
highly likely to commit constitutional violations at the time of their hiring. 5 The only allegations
regarding Centra’s hiring policy are (1) that Centra’s SCOPs are not “qualified or trained to
protect the constitutional rights of individuals”; and (2) that Centra “does not require
psychological evaluations or fitness for duty examinations of the armed security guards it hires.”
(Dkt. 1 ¶ 250). This first allegation is in conflict with the order appointing Tidwell as an SCOP,
which states he “has met the registration and training requirements established by the Virginia
5

See Sampson v. Highland Cty. Va. Bd. of Supervisors, No. 7:15-cv-465, 2017, 2017 WL
1383951, at *2 (W.D. Va. Apr. 13, 2017) (“Sampson has pled no facts suggesting that the Board
of Supervisors was aware, let alone disregarded, a known or obvious consequence of hiring the
applicant.”); Lee v. City of Richmond, No. 3:12-cv-471, 2013 WL 1155590, at *5 (E.D. Va. Mar.
19, 2013) (“[T]he Amended Complaint never asserts that there was any event in the officers’ past
conduct that would have made hiring a constitutionally deficient decision.”).
15

Department of Criminal Justice Services.” (Dkt. 1-3 at 1).
As for the second allegation, it is unclear how the failure to conduct psychological and
fitness-for-duty examinations made a constitutional violation an “obvious consequence,” Brown,
520 U.S. at 410—especially considering that Tidwell was vetted and approved by the Circuit
Court for the City of Lynchburg and the Virginia Department of Criminal Justice Services. (See
id.). Without additional allegations, Plaintiff has failed to establish that Centra’s hiring policies
were constitutionally deficient. Plaintiff’s allegations are nothing more than formal recitations of
elements and legal conclusions.
b. Deficient Training Policy
Plaintiff’s next theory of § 1983 liability is based upon Centra’s alleged failure to
properly train Tidwell and other officers to avoid constitutional violations. His claim fails,
however, because it is based solely on the incident involving Plaintiff, rather than a pattern of
similar conduct by improperly trained employees. See Tuttle, 471 U.S. at 823–24 (1985) (“Proof
of a single incident of unconstitutional activity is not sufficient to impose liability under Monell,
unless proof of the incident includes proof that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal policymaker.”); Connick v.
Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure
to train.” (internal quotation marks omitted)).
The only allegation regarding Centra’s training is that another security guard, Wesley
Gillespie, was trained to use a Model X2 taser but carried a Model X26. (Dkt. 1 ¶ 251). This
allegation, standing alone, is not sufficient to establish a failure-to-train claim under Monell. As
discussed below, the alleged violation in this case did not occur because the taser was improperly
operated; Plaintiff’s theory is that the taser should not have been used at all. Because “[t]here
16

must at least be an affirmative link between the training inadequacies alleged, and the particular
constitutional violation at issue,” this allegation does not save Plaintiff’s Monell claim. The fact
remains that he has failed to demonstrate a custom or policy that led to his injuries—either by
description of a tangible policy or a pattern of conduct indicative of a policy.
c. Deficient Discipline Policy
Plaintiff’s third and final theory for holding Centra liable under § 1983 is that Centra has
maintained a constitutionally deficient policy for disciplining security guards. (See dkt. 1 ¶¶ 166,
249, 313, 375).

Plaintiff concedes that his allegations of deficient discipline policy are

impermissibly vague. (Dkt. 35 at ECF 13).
Plaintiff requests leave to amend the Complaint regarding such policies or dismissal
without prejudice. He argues that he possesses insufficient facts at this time regarding any
written policies or past incidents involving Centra security guards. He is also unsure about
whether Tidwell was properly disciplined after this incident.
Because a response brief is not the appropriate mechanism for requesting leave to amend,
the Court will not grant leave at this time. However, dismissal will be without prejudice insofar
as it concerns Centra’s discipline policies or customs in place at the time of the incident. The
Court notes that information regarding Tidwell’s punishment from Centra following the
incident—or lack thereof—cannot form the sole basis of a failure-to-discipline claim because
subsequent conduct cannot be the cause of the precedent violation. See Cordova v. Aragon, 569
F.3d 1183, 1194 (10th Cir. 2009); Moody v. City of Newport News, Va., 93 F. Supp. 3d 516, 535
(E.D. Va. 2015).
2. Count 12: Negligent Entrustment of a Taser
Plaintiff alleges that Centra is liable for Plaintiff’s taser-related injuries because it
negligently entrusted a taser to Defendant Tidwell as an SCOP. This Count will be dismissed
17

because the Complaint lacks facts sufficient to state a plausible claim of negligent entrustment
under Virginia law.
To state a claim for negligent entrustment of chattel (here, a taser), a plaintiff must show
that “the owner knew, or had reasonable cause to know, that he was entrusting his [chattel] to an
unfit [user] likely to cause injury to others.”

Denby v. Davis, 212 Va. 836, 838 (1972).

“Furthermore, in order to impose liability upon the owner, the plaintiff must prove that the
negligent entrustment of the [chattel] to the tortfeasor was a proximate cause of the accident.”
Turner v. Lotts, 244 Va. 554, 557 (1992).
As an initial matter, the parties dispute whether Plaintiff has sufficiently pled that Centra
knew or had reason to know that Tidwell would use the taser to injure others. Plaintiff’s primary
allegation is that Tidwell was not certified in the specific model taser that was used against
Plaintiff.

6

(Dkt. 1 ¶ 614). Centra disputes whether this lack of certification was enough to

demonstrate that Centra knew or should have known that Tidwell was likely to cause injury to
others. (Dkt. 27 at 18–19).
The Court need not wade into this dispute, however, because Plaintiff has failed to
adequately plead proximate cause. Even assuming that Plaintiff’s allegations are sufficient to
demonstrate Centra’s negligence, the Complaint is devoid of allegations that Centra’s negligence
was the proximate cause of Plaintiff’s injuries.

Besides stating that Centra’s negligent

entrustment “was a direct and proximate cause of [Plaintiff’s] injuries”—an impermissible legal
conclusion—the Complaint does not allege a sufficient causal relationship between the
entrustment and Plaintiff’s injuries. There are no allegations, for instance, that Tidwell failed to
use the taser properly or used the taser accidentally because he was unfamiliar with its

6

At oral argument, Plaintiff’s counsel appeared to concede that Tidwell actually was
actually trained and certified on the model taser that he used against Plaintiff.
18

functions. 7 Instead, Plaintiff’s claim is that the taser should not have been used at all. (See dkt.
1 ¶¶ 216–18). This logic fails because the decision of when and when not to employ a taser is
unrelated to being certified to use a specific taser model. 8
The case of Hack v. Nester, 241 Va. 499 (1990), is analogous and illustrative. In Hack, a
car owner entrusted her vehicle to an unlicensed driver, which is negligence per se. Id at 503.
The unlicensed driver then became drunk and caused a fatal accident. Nevertheless, the Supreme
Court of Virginia ruled that the owner could not be held liable because proximate cause was
lacking.

Id. at 503–04.

The fact that made the entrustment negligent—the driver being

unlicensed—was unrelated to the actual cause of the accident—the driver’s intoxication. Id.
Likewise in the instant case, the fact that made the entrustment allegedly negligent—Tidwell’s
lack of certification—was unrelated to the actual cause of Plaintiff’s injuries—Tidwell’s decision
to use the taser.
Accordingly, Count 12 will be dismissed because Plaintiff has not alleged that Centra’s
negligent entrustment was the proximate cause of his injuries.
3. Punitive Damages
Additionally, Centra asks the Court to strike Plaintiff’s claims for punitive damages
against it. Because the § 1983 claims against Centra (Counts 1–4) and the negligent entrustment
claim (Count 12) will be dismissed, the issue of punitive damages for those counts need not be
discussed. The Court is then left to consider the punitive damages request based on the state-law
7

The Complaint actually suggests that Tidwell knew how to properly operate the Model
X26 taser. It is alleged that Tidwell used the “drive stun mode,” which is the appropriate mode
for close encounters, rather than the “dart mode,” which is meant for longer distances.
Furthermore, the allegation that Tidwell used the “drive stun mode” twice is additional evidence
that he knew how to operate the taser. (See dkt. 1 ¶ 63 n.6). Plaintiff’s counsel averred at oral
argument that Tidwell may have deployed the taser accidentally the second time, but the Court
was unable to find that allegation within the four corners of the Complaint’s 122 pages.
8
In fact, Plaintiff concedes that Tidwell was likely certified to use a different model of
taser. (See dkt. 1 ¶ 58 n.4). As such, Plaintiff’s theory of negligence is not that Tidwell was
uncertified to use any kind of taser, but simply that he was not certified to use the Model X26.
19

claims found in Counts 5–9. 9
Judges in the Western District of Virginia have established a policy of not addressing
remedies issues at the 12(b)(6) stage, which is designed to address the sufficiency of claims.10
Because Plaintiff’s requests for punitive damages are not separate claims, they will not be
dismissed at this time. Nevertheless, because Virginia law caps punitive damages at $350,000,
see Va. Code § 8.01-38.1, Plaintiff’s demand for punitive damages on Counts 5–9 will be
reduced. See, e.g., Nelson v. Green, No. 3:06-cv-70, 2014 WL 131055, at *24 (W.D. Va. Jan.
14, 2014) (Moon, J.); Boren v. Nw. Reg’l Jail Auth., No. 5:13-cv-13, 2013 WL 5429421, at *11
(W.D. Va. Sept. 30, 2013) (Urbanski, J.). Plaintiff’s total request for punitive damages in Counts
5–9 cannot exceed $350,000.
C. Motion #3: Defendant Tidwell (Dkt. 28)
Defendant Tidwell requests dismissal of Counts 1, 2, 3, 4, 9, 10, and 11. As discussed
above, Plaintiff has conceded that Count 11 should be dismissed. The remaining arguments for
dismissal will be discussed below.
1. Counts 1–4: Color of State Law
Defendant Tidwell asks the Court to dismiss Counts 1, 2, 3, and 4 against him because he
was not acting under color of state law. See 42 U.S.C. § 1983; Rendell-Baker v. Kohn, 457 U.S.
830, 835 (1982).

Plaintiff alleges that Defendant Tidwell aided in Plaintiff’s arrest, used

excessive force by shocking Plaintiff with is taser, and sought baseless warrants for Plaintiff’s

9

Because Count 10 will be dismissed against all defendants, see infra Subsection III.B.3,
the punitive damages request found therein need not be addressed either.
10
See, e.g., Rosenthal v. R. W. Smith Co., No. 6:16-cv-56, 2017 WL 1750704, at *8 (W.D.
Va. May 3, 2017) (Moon, J.); Coogan-Golden v. Wal-Mart Stores E., LP, No. 5:15-cv-54, 2017
WL 963235, at *1–2 (W.D. Va. Mar. 13, 2017) (Dillon, J.); Meeks v. Emiabata, No. 7:14-cv534, 2015 WL 1636800, at *2 (W.D. Va. Apr. 13, 2015) (Dillon, J.); Charles v. Front Royal
Volunteer Fire & Rescue Dep’t, Inc., 21 F. Supp. 3d 620, 631 (W.D. Va. 2014) (Urbanski, J.);
Debord v. Grasham, No. 1:14-cv-39, 2014 WL 3734320, at *1 (W.D.Va. July 28, 2014) (Jones,
J.).
20

arrest after conspiring with LPD officers. Defendant Tidwell argues that his participation in the
arrest and prosecution of Plaintiff was outside the scope of his authority as an SCOP, and thus he
was acting in his private capacity, rather than under color of state law.
Although the Fourth Amendment “does not provide protection against searches by
private individuals acting in a private capacity,” it does protect against “those private individuals
acting as instruments or agents of the Government.” United States v. Day, 591 F.3d 679, 683
(4th Cir. 2010). To determine whether a private individual is operating in a private capacity or
as an instrument of the state, two “primary factors” are to be considered: “(1) whether the
Government knew of and acquiesced in the private individual’s challenged conduct; and (2)
whether the private individual intended to assist law enforcement or had some other independent
motivation.” Id. Here, both factors weigh in favor of finding that Defendant Tidwell was acting
under color of state law because he was acting as an SCOP pursuant to the express authority of
the Commonwealth of Virginia.
Under Virginia law, a corporation, such as Centra, may petition a circuit court to appoint
SCOPs who may have “all the powers, function, duties, responsibilities and authority of any
other conservators of the peace” within a prescribed geographic location. Va. Code § 19.213(A). On August 29, 2013, Defendant Tidwell, upon the petition of Centra, was appointed as
an SCOP. The order approving this appointment was attached to the Complaint. (Dkt. 1-3)
[hereinafter “SCOP Order”].
The SCOP Order states that Tidwell is an SCOP “for the geographical locations and on
the petitioner’s premises . . . as well as in the streets and sidewalks adjacent to the grounds
thereof.” (SCOP Order at 1–2). It provides further that he:
shall have all the powers, functions, duties, responsibilities and authorities of
Special Conservator of the Peace; [he] shall be considered a ‘law enforcement
officer’ . . . be permitted to perform the duties of a law-enforcement officer at the
direction and discretion of [Centra]; that he may use ‘police’ on any badge or
21

uniform worn in the performance of his duties; [he] may affect arrests, at the
discretion and direction of [Centra], using up to the same amount of force as
would be allowed to a law-enforcement officer employed by the
Commonwealth . . . [and he] is authorized to carry a weapon while within the
scope of his employment as [an SCOP].
(SCOP Order at 2).
Defendant argues that he was acting outside the scope of his SCOP authority when he
pursued and arrested Plaintiff, and thus he was operating as a private actor. Although the arrest
took place off of Centra’s property, it is undisputed that the arrest location was “adjacent to the
grounds thereof,” as provided in the SCOP Order and permitted by statute. (Dkt. 1-3 at 1–2); Va
Code § 19.2-13(A). Instead, Tidwell argues that he was operating outside his authority because
he was not acting “at the direction and discretion” of Centra, as required by the SCOP Order.
This argument flies in the face of a natural reading of the SCOP Order’s language. When
the circuit court authorized Tidwell to perform the duties of a law-enforcement officer and affect
arrests “at the discretion and direction” of Centra, it could not have meant that each action
Tidwell takes must be directly ordered by his employer. Such an interpretation would render
Tidwell impotent and lead to preposterous results. When confronted with unlawful activity,
Tidwell would have to seek approval before exercising the duties of a law-enforcement officer or
making an arrest. This would be incredibly inefficient and completely ineffective in exigent
circumstances.
A more natural reading of the phrase “at the discretion and direction” is that Centra had
the discretion to limit or circumscribe Tidwell’s authority and direct him as it so desired. The
circuit court was prescribing the outer limits of Tidwell’s authority, but giving his employer,
Centra, the ability to define Tidwell’s job responsibilities within those limits. It is perfectly
natural to expect that Centra may have instituted its own limits or codes of conduct for SCOPs,
but there are no allegations that Tidwell was restricted by Centra from pursuing suspects and
22

making arrests. Accordingly, based on the Complaint, Tidwell was acting within the scope of his
SCOP authority.
Tidwell argues in the alternative that even if he was acting within the scope of his SCOP,
he was not acting under color of state law because the government’s role in his activities were
too passive. He asserts that the government’s only involvement was the SCOP Order, which he
argues is not enough to make him an instrument or agent of the state. See Day, 591 F.3d at 683.
Were this true—that the SCOP Order was the only government involvement—then Tidwell’s
argument would have strong support in the case law. See id. at 685 (reviewing a similar
statutory scheme in Virginia that authorizes “armed security officers”) (“This mere governmental
authorization for an arrest . . . in the absence of more active participation or encouragement is
insufficient to implicate the Fourth and Fifth Amendments.”).
The problem with Tidwell’s argument, however, is that the SCOP Order was not the only
government involvement in this incident. The Complaint alleges that Tidwell called 9-1-1 for
assistance, and when he arrived at the scene of the arrest, at least two LPD officers were actively
engaged with Plaintiff and attempting to arrest him. (Dkt. 1 ¶¶ 39–40, 55–56, 60). Tidwell then
worked together with the officers to subdue and arrest Plaintiff, including deploying his taser.
(Id. ¶¶ 60, 63). Furthermore, Plaintiff has alleged that after the arrest Tidwell communicated
with either Clark or Bragg and sought arrest warrants at their behest. (Id. ¶¶ 333–35). This
conduct—combined with the SCOP Order—appears to be precisely the kind of “active
participation or encouragement” that the Fourth Circuit contemplated in Day. Accordingly, the
first Day factor is satisfied because the government either directed or acquiesced to Tidwell’s
conduct.
As for the second Day factor—whether the private individual intended to assist law
enforcement—it too is satisfied in this case. Tidwell’s decision to call 9-1-1, aid two LPD
23

officers that were already engaged with Plaintiff, and seek arrest warrants evinces a clear
intention to assist law enforcement officers in the apprehension, arrest, and prosecution of
Plaintiff. Tidwell’s conduct reflects that he “intended to assist law enforcement” and there is no
evidence of “some other independent motivation.” Day, 591 F.3d at 683.
Thus, Plaintiff has alleged facts sufficient to state a plausible claim that Tidwell was
acting under color of state law. The allegations, taken as true, demonstrate that he was acting
within the scope of his SCOP authority to assist law enforcement at the direction or acquiescence
of state actors. That is, he was acting as an instrument or agent of the state under color of state
law. See Dennis v. Sparks, 449 U.S. 24, 28 n.4 (1980) (“To act ‘under color’ of law does not
require that the accused be an officer of the State. It is enough that he is a willful participant in
joint activity with the State or its agents.” (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144,
152 (1970)).
2. Counts 4 & 9: Lack of Conspiracy
Defendant Tidwell asks the Court to dismiss Counts 4 and 9—which allege conspiracy to
maliciously prosecute under § 1983 and Virginia common law, respectively—because Plaintiff
has failed to plead his claims of conspiracy with sufficient specificity. He argues that Plaintiff’s
allegations are based upon unsupported legal conclusions and conjecture, rather than factual
allegations about concerted action or meeting of the minds.
Under Virginia law, “[a] common law conspiracy consists of two or more persons
combined to accomplish, by some concerted action, some criminal or unlawful purpose or some
lawful purpose by a criminal or unlawful means.” The Country Vintner, Inc. v. Louis Latour,
Inc., 272 Va. 402, 412 (2006). Likewise, a claim of conspiracy under § 1983 requires a plaintiff
to “plead specific facts in a nonconclusory fashion to survive a motion to dismiss.” Gooden v.
Howard Cty., Md., 954 F.2d 960, 970 (4th Cir. 1992).
24

The Supreme Court addressed the pleading standard with regard to conspiracies—albeit
under a separate statute—in Twombly. The Court stated that a complaint alleging a conspiracy
requires “enough factual matter (taken as true) to suggest that an agreement was made.”
Twombly, 550 U.S. at 556. This requires more than “an allegation of parallel conduct and a bare
assertion of conspiracy” because such conduct “could just as well be independent action.” Id. at
556–57. However, “[a]sking for plausible ground to infer an agreement does not impose a
probability requirement at the pleading stage,” and “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable.” Id. at 556.
Here, Plaintiff has alleged parallel conduct, which “gets the complaint close to stating a
claim.” Id. at 557. It is alleged that Defendant Tidwell sought arrest warrants for Plaintiff
shortly after Defendants Bragg and Clark had been unsuccessful in obtaining warrants. (Dkt. 1
¶¶ 333, 335). But the Complaint does not stop there. The Complaint places the conduct “in a
context that raises a suggestion of a preceding agreement.”

Twombly, 550 U.S. at 557.

Defendants are alleged to have cooperated in the arrest earlier that evening, after which they
realized that Plaintiff’s arrest may have been unlawful, which motivated them to seek warrants
for Plaintiff’s arrest. (Dkt. 1 ¶¶ 76–77, 331). This context demonstrates that Tidwell’s decision
to seek warrants may have been more than mere parallel conduct. Furthermore, Plaintiff alleges
that upon information and belief, Defendant Bragg or Defendant Clark called Tidwell to discuss
seeking additional warrants from the magistrate after their initial attempt failed. (Id. ¶ 334).
Because the Complaint contains more than “an allegation of parallel conduct and a bare
assertion of conspiracy,” Twombly, 550 U.S. at 556, Defendant’s motion as to Counts 4 and 9
will be denied. Plaintiff has plead facts sufficient to state a plausible claim that there was a
meeting of the minds and concerted effort by Defendants to maliciously prosecute Plaintiff.
3. Count 10: Intentional Infliction of Emotional Distress
25

Defendant Tidwell asks the Court to dismiss Count 10 against him as it fails to state a
claim of intentional infliction of emotional distress. In order to state a claim for IIED, a litigant
must plead: (1) the defendant’s conduct was intentional or reckless; (2) the conduct was
outrageous or intolerable; (3) there was a causal connection between the defendant’s conduct and
the resulting emotional distress; and (4) the resulting emotional distress was severe. Almy v.
Grisham, 273 Va. 68, 77 (2007). Because the Complaint fails to allege facts sufficient to satisfy
the fourth element, the claim will be dismissed. 11
Even assuming Plaintiff has alleged intentional or reckless conduct causally related to his
emotional harm that was sufficiently outrageous and intolerable to satisfy the first three elements
of IIED, Plaintiff has failed to plead emotional distress that is severe enough to satisfy the fourth
element of an IIED claim. The Virginia Supreme Court has held that to state a claim for IIED,
the resulting emotional distress must be “so severe that no reasonable person could be expected
to endure it.” Almy, 273 Va. at 80 (quoting Harris v. Kreutzer, 271 Va. 188, 205 (2006)). Here,
Plaintiff provides scant details about his emotional distress.

Instead, he merely lists the

following symptoms: “(i) humiliation, (ii) embarrassment, (iii) anxiety, (iv) depression, (v)
damage to his reputation, (vi) fear, (viii) [sic] panic, and (ix) [sic] severe mental anguish.” (Dkt.
1 ¶ 594). Despite Plaintiff’s description of these symptoms as “severe emotional distress,” this
label alone does not satisfy the high standard to establish IIED in Virginia. The symptoms
described a far from being “so severe that no reasonable person could be expected to endure it.”
Almy, 273 Va. at 80; see also id. at 79 (describing symptoms that “ultimately caused a complete
disintegration of virtually every aspect of her life” and required “extensive therapy”); Twombly,
550 U.S. at 555 (stating that “labels . . . conclusions, and a formulaic recitation of the elements of

11

Count 10 also alleges IIED by Defendants Bragg, Clark, and Centra. (Dkt. 1 ¶¶ 591–95).
Tidewll was the only defendant to challenge Count 10, but because the same logic applies to all
defendants, Count 10 will be dismissed in its entirety.
26

a cause of action will not do”). Because Plaintiff’s claims of emotional distress are too vague
and insufficiently severe to state a plausible claim for relief, Count 10 will be dismissed.
IV. CONCLUSION
Two of the partial motions to dismiss will be granted in part and denied in part, while the
motion by the City and Defendants Bragg, Clark, and Miller will be grantd. The dispositions
will be as follows: (1) all Counts will be dismissed against the City, and it will be terminated
from the case; (2) Counts 10, 11, and 12 will be dismissed against all defendants; (3) Counts 1, 3,
and 4 will be dismissed against Defendants Miller, Bragg, and Clark because they are entitled to
qualified immunity; (4) Counts 1–4 will be dismissed against Centra; (5) the punitive damages
requests found in Counts 5–9 will be limited to a total of $350,000, in accordance with Virginia
law; and (6) LPD John Does 1–10, LPD Jane Does 1–10, Centra John Does 1–10, and Centra Jane
Does 1–10 will be dismissed and terminated from the case, pursuant to Rule 4(m), because they
have not been served.
In his briefs and at oral argument, Plaintiff’s counsel conceded that some of Plaintiff’s
claims are factually insufficient, and requested leave to amend the Complaint. Seeing as these
are not appropriate mechanisms for requesting such leave, it will not be granted at this time. See
Fed. R. Civ. P. 7(b); Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014); Cozzarelli v.
Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir. 2008). Nevertheless, if additional details are
unearthed during discovery, Plaintiff retains the ability to motion the Court for leave to amend.
See Fed. R. Civ. P. 15(a). Of course, any such request would require Plaintiff to attach a
proposed amended complaint in order for the Court to determine whether leave to amend is
warranted. In light of the exceptional length of the original complaint (122 pages) and the
considerable number of claims that remain pending, the Court will not grant Plaintiff leave to
amend unless it is certain that such an amendment is non-frivolous, non-futile, and in compliance
27

with Federal Rule of Civil Procedure 8.
An appropriate Order will issue, and the Clerk of the Court is hereby directed to send a
copy of this Memorandum Opinion to Plaintiff, Defendants, and all counsel of record.
7th
Entered this _____ day of August, 2017.

28