Routon v. Overton et al
Filing
120
MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 3/28/2018. (ssm)
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L,
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED
MAR 28 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
Plaintiff,
v.
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)
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CASE NO. 7:18CV00112
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HENRY ERIC ROUTON,
J~IA.~
u
.
BY:
MEMORANDUM OPINION
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WILLIAM "BILL" Q. OVERTON, ET AL.,)
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Defendants.
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By: Glen E. Conrad
Senior United States District Judge
Henry Eric Routon, a Virginia inmate proceeding pro se, filed this civil rights action
pursuant to 42 U.S.C. § 1983. Routon alleges that the defendants, who are state and local
government officials, violated his constitutional rights during separate incidents, in May 2014 and
January 2018, when sheriffs deputies investigated and arrested Routon. The defendants named
in the original complaint have filed motions to dismiss. Routon has responded to their motions,
but has also filed an amended complaint. After review of the record, the court finds that the
motions to dismiss are ripe for disposition as to that amended complaint. The court concludes that
while many of Routon's claims must be dismissed, his Fourth Amendment claims and related state
law claims against Defendants Dameron and Norton survive their motion to dismiss.
I. BACKGROUND.
A. The Amended Complaint.
Routon signed and dated his complaint on March 7, 2018, 1 and was granted the opportunity
to proceed in forma pauperis under 28 U.S.C. § 1915(b). In carrying out its obligation under 28
1
See Lewis v. Richmond City Police Dep't, 947 F.2d 733 (4th Cir. 1991) (finding that civil complaint of
incarcerated pro se litigant must be considered "filed" within meaning of civil procedure rules when prisoner delivered
complaint to prison authorities for mailing to clerk of the district court, and not when clerk of district court received
complaint).
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.
U.S.C. § 1915(d) to accomplish service on the defendants, the court encountered some difficulties
and required Routon to provide additional information. In the meantime, those defendants who
had already waived service. filed motions to dismiss on June 8, 2018. Routon then submitted his
motion for leave to file a proposed amended complaint, signed and dated on June 28, 2018.
Because Routon's amend.ed complaint must be considered filed on that date, the court finds that it
is proper under Rule 15(a)(l)(B) (authorizing amended complaint within twenty-one days after
motion to dismiss is filed). Therefore, the court will grant the motion and direct the clerk to add
the defendants newly named in the amended complaint to the docket. Routon omitted Jay Mason
and Robbie Hodges from the list of defendants in the amended complaint, and his submissions as
a whole also indicate that he has abandoned his claims against them. 2 Therefore, the court will
dismiss them from the case. 3
B. The May 2014 Incidents.
In May 2014, Routon shared a house with his fiance, Michelle Page, in Rocky Mount,·
Virginia. On the evening of May 6, 2014, Bryan Johnson and Chad Austin, deputies of the
Franklin County Sheriffs Office ("FCSO"), arrived at that house in separate patrol cars after
receiving a report of"suspicious activity." Am. Compl. Exh. A, ECF No. 47-2. They found Page
sitting in the driver's seat of her car, with Routon standing beside the car. The deputies blocked
the end of the driveway with their cars, separated the couple, and began talking to them. While
Johnson was speaking to Page, Routon explained to Austin that he and Page were having a dispute,
but he had called someone for a ride to his parents' house. Austin allowed Routon to start walking
2
In light of the amended complaint, the court will dismiss as moot Routon's later-filed motion, ECF No. 97,
seeking to. dismiss his claims against Jay Mason and to add defendants already named in the amended complaint.
3
In addition, all cfaims against the following defendants have previously been dismissed from the case:
Captain Caldwell and Major Bowman.
2
down_the street. After a few minutes, however, Austin's patrol car pulled up next to Routon, the
deputy ordered Routon to empty his pockets and surrender his cell phone, frisked him, and then
drove him back to the house. Austin said "he was detaining [Routon] for investigation because
'something' had been found on" Page. Am. Compl. 14, ECF No. 47-1.
While Johnson was talking to Page, she told him that she had come to the car "to get away
from Routon, because she knew that he wouldn't do anything out in the driveway." Am. Compl.
Exh. A, ECF No. 47-2. She then "took a small baggie with a white substance in it from her bra
and handed it to" Johnson, saying that she had "swiped it off the table as she came out of the
house." Id. Michelle also told Johnson that Routon had taken a gun from her and hidden it in her
car.- After a search, they found a loaded .22 caliber handgun in the console, and Johnson secured
it.
The deputies later began to question Routon about the gun and who owned it, but he
invoked his right to remain silent. At this point, Page was handcuffed and placed in the backseat
of Johnson's patrol car, and Routon was handcuffed and placed in Austin's car. They remained in
the vehicles for five and a half hours.
Other deputies arrived-defendants Lyle, Hylton, Ingram and Shockley.
Lyle and
Shockley questioned Routon about the substance Johnson had found on Page, which Ingram field
tested and identified as methamphetamine.
Routon alleges that Page had earlier consumed
methamphetamine in Johnson's presence and was "highly intoxicated." Am. Compl. at 18.
Defendants Tyree, Straub, Newberry, and Willis, special agents with the Virginia Department of
State Police ("VDSP") drove up, responding to a "meth lab" call from the dispatcher. Id. at 29.
Defendants Peters, Naff, Angle, Waterman, Stiltner, and Shepard of the Boones Mill Fire-EMSFranklin County Public Safety
~ompany
7 all arrived in private vehicles, and other EMS
3
defendants (Evans, Rorrer, and Ball) drove up in a fire engine tanker truck. They had been
"dispatched to assist" in decontaminating Page and Routon who were suspected of"running a meth
lab." Id. at 30. The officers' vehicles blocked traffic on the street, and the noise and flashing lights
drew a crowd of curious neighbors.
Johnson and another deputy, Joshua Mason, had Page execute a consent for a search of the
house, despite her intoxicated state. That search was conducted just after midnight by deputies
Hylton and Shockley, who did not have a search warrant.
Around 1:00 a.m., Page was taken from the patrol car, uncuffed, and led away. Routon
shortly heard her "screaming and crying," and then officers returned her to the patrol car, now
dressed in a "Tyvek suit." Id. at 20. Austin let Routon out of the car and led him to an open,
grassy area of the yard, uncuffed him, and ordered him to remove his clothes to be
"decontaminated." Id. at 21. Ingram explained that someone would spray Routon's naked body,
usin:g the hose from the firetruck parked in the street. Routon refused to remove more than his
shirt, because male and female neighbors were watching. 4 Austin and Ingram "slammed" Routon
to the ground, "beat" and "punched" him, "ripped" his clothing and shoes off, "dragged [him]
naked and forced [him] to stand in front of the firehose." Id. at 22. The high-pressure stream of
water caused him pain, particularly when it struck his genitals. 5 Afterward, the deputies had him
don a Tyvek suit and put him back in handcuffs in the patrol car.
Routon was charged with four methamphetamine offenses. After a preliminary hearing in .
June 2014, these charges were dismissed by the Franklin County General District Court. In July
4
Routon admits that the deputies put up a tarp to keep the public from seeing Page and Routon while they
were being decontaminated. He claims, however, that it belonged to him and "had a hole of substantial diameter
because it was dry-rotted and [he] had mowed [over] it by accident." Am. Compl. 28, ECF No. 47-1.
5
An incident report from May 6, 2014, indicates that a "suppression device" was used while providing water
at the scene. Am. Compl. Ex. C, ECF No. 47-2.
4
2014, a Franklin County grand jury returned five felony indictments, charging Routon with
conspiracy, manufacturing methamphetamine, possession of precursors to manufacture the drug,
distribution of methamphetamine, and possession of a firearm as a felon. Court records online
indicate that Routon pleaded guilty in Franklin County Circuit Court on January 29, 2015, to the
charge of possession of a firearm as a felon, and the drug-related charges were dismissed on
January 29, 2015. 6 After several continuances, Routon was sentenced on the firearm conviction
on April 7, 2017.
C. The January 2018 Incident.
On January 19, 2018, Routon was staying in Room 106 of the Hometown Inn Motel in
Rocky Mount, with a guest, Brittany Nichols. About 4:00 p.m., FCSO Deputies Dameron and
Norton came to the door and asked for Nichols. 7 She went outside to talk to Norton, and Routon
agreed to step outside to talk. When he did so, Dameron moved to block Routon from reentering
the room.
Dameron told Routon that before the deputies knocked on the motel room door, they had
spoken to the motel owner, Mr. Patel, who verified for them that Routon's name was on the lease
for Room 106 .. Patel then allegedly gave his "permission" for the deputies to search Room 106.
Id. at 41. Dameron said the deputies would search the room, but Routon refused to consent to a
search. Dameron said he would bring a drug-sniffing dog and search the room if the dog alerted
for drugs. When Routon demanded to reenter the room to get his cellphone to call his attorney,
Dameron physically restrained him from doing so and checked Routon's pockets. The deputy said
6
Franklin County Circuit Court records of Routon's 2014 and 2018 criminal charges are listed under the
name. Henry Eric Routon, Jr. In his submissions to this court, Routon has referred to himself merely as Henry Eric
Routon.
7
The deputies' incident reports indicate that they had received a tip that Nichols was making and using
methamphetamine in Room 106.
5
that Norton would get a search warrant for the room, but that Routon could not reenter because
Dameron "smelled 'pot' on [him]." ld. at 37.
"As [Routon] reentered the room" anyway, Dameron "immediately crossed the
threshold ... into the room and "tackled [Routon] to the floor." Id. Dameron was "punching"
Routon on one side, and Norton was "kneeing" him on the other side ''for several minutes." ld.
Face down, Routon was handcuffed behind his back, when Dameron "choked" him so that he
could not breathe. ld. Dameron placed Routon in his patrol car. The deputies then entered Room
106 with Nichols, who was screaming and crying. Routon saw Norton leave the room and deposit
something in her patrol car. Dameron attempted to question Routon about an item from the room,
but Routon asked to speak to his attorney. While Norton was gone to get a search warrant,
Dameron entered the room with Nichols, who allegedly showed him "a 'one pot' meth lab.'" Id.
at 52. Dameron then telephoned Norton to tell her what details to put in the affidavit in support of
the warrant application.
Once Norton returned with a search warrant, she conducted a search of Room 106. No
marijuana was discovered there. Because of the contraband that was found, officials contacted the
VDSP, which dispatched unnamed members of a "clandestine methamphetamine laboratory clean
up crew" to the motel room. ld. at 46. Unspecified members of the Boones Mill Company 7 also
reported to assist. Dameron drove Routon to the Franklin County Jail, where he was allowed to
decontaminate himself in a holding cell using disinfecting wipes.
Warrants were obtained and served on Routon for assault on law enforcement, possession
of a Schedule II drug, manufacture of methamphetamine, possession of paraphernalia, and
obstruction of justice. See Am. Compl. Ex. G-2, ECF No. 47-3. Copies ofthe indictments that
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resulted from one or more of these charges are not in the record. State court records online indicate
that two 2018 charges against Routon in Franklin County Circuit Court have been dismissed.
D. Routon's Claims.
Liberally construed, the amended complaint asserts the following claims:
1.
On May 5-6, 2014, Johnson and Austin conspired to commit an
unreasonable search and seizure of Routon's house, in violation of the
Fourth Amendment.
2.
Lyle, Ingram, Austin, and Johnson used excessive force against Routon on
May 5-6, 2014, by slamming him to the ground, beating him, ripping his
clothes off, and spraying him with a high-powered fire hose, and allowed
female onlookers to see him naked, in violation of the Fourth Amendment,
and the other defendants at the scene failed to intervene. 8
3.
Franklin County Sheriff Overton, Boones Mill Mayor Flora, Boones Mill
Fire Chief Peters and the Fire Department itself, VDPS Superintendent
Settle, and VDPS Colonel Flaherty are vicariously liable for the tortious
actions of their subordinates during the May 2014 and January 2018
incidents. 9
4.
Dameron and Norton entered Routon's motel room on January 19, 2018,
without a search warrant or lawful consent and later obtained a search
warrant through false pretenses, in violation of the Fourth Amendment.
8
The other defendants to this claim in the amended complaint are Hylton (also identified as Hilton),
Shockley, Evan~, Rorrer, Ball, Naff, Angle, Waterman, Stiltner, Shepard, Newberry, Straub, Willis, Tyree, (Joshua)
Mason, and Newberry.
9
Routon also asserts that the town, the sheriffs office, Boones Mill Fire Department, the VDPS, and the
Commonwealth of Virginia are liable for the officers' actions on May 5-6,2014. Except for the fire department,
however, he did not name any of these entities as defendants.
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5.
Dameron and Norton used excessive force against Routon on January 19,
2018, in violation of the Fourth Amendment and committed assault and
battery on him. 10
6.
Dameron and Norton conspired with each other and with Patel, the motel
owner, to perform a warrantless search ofRouton's motel room, in violation
of the Fourth Amendment. 11
Routon also vaguely alleges other various torts under state law regarding the May 2014 incidents.
As relief in this case, he seeks monetary damages.
II. DISCUSSION.
A. The Standard of Review.
"To survive a motion to dismiss [under Rule 12(b)(6) of the Federal Rules of Civil
Procedure], a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief!that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 12 The court must
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"accept as true all well-pleaded allegations and view the complaint in the light most favorable to
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the pfaintiff." Venkatraman v. REI Sys., Inc., 417 F.3d 418,420 (4th Cir. 2005). Although the
court must take as true all well-pleaded factual allegations, the same is not true for legal
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i 10 Routon cites additional constitutional amendments, unconnected to any particular defendant's actions.
The c0urt concludes, however, that his claims are appropriately construed as arising only under the Fourth
Amen4ment, which covers unreasonable searches and seizures, excessive force on arrest, and bodily privacy. Where
"anoth~r provision of the Constitution 'provides an explicit textual source of constitutional protection,' a court must
assess fa plaintiffs claims under that explicit provision and 'not the more generalized notion of 'substantive due
process."' Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
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"Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and
not th~ Fourteenth." Id. Moreover, claims that law enforcement officials used excessive force in the course of an
arrest, investigatory stop or other seizure of a person are properly analyzed under the Fourth Amendment, rather than
under the Eighth Amendment or the Fourteenth Amendment. Graham, 490 U.S. at 394-95. Finally, the court finds
no factPal basis here for claims that Routon was denied equal protection or any violation of the Fifth Amendment.
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· I 11 Routon also complains that Patel tried to make false charges on Routon's mother's credit card when she
used it!to pay the cost for Room 106. Routon, who is not an attorney, cannot litigate claims on his mother's behalf,
however. See Hummer v. Dalton, 657 F.2d 621, 625-626 (4th Cir. 1981) (holding that prisoner proceeding w se
may oAly seek to enforce his own rights and not to vindicate the rights of others) .
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The court has omitted internal quotation marks, alterations or citations here and throughout this
memor:andum opinion, unless. otherwise noted.
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conclusions.
"Threadbare recitals of the elements of a cause of action, supported by mere
concltxsory statements, do not suffice." Iqbal, 556 U.S. at 678.
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..'j In deciding the motion, the court may consider the facts alleged on the face of the amended
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· complaint, as well as "matters of public record, orders, items appearing in the record of the case,
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; and e~hibits attached to the complaint." Moore v. Flagstar Bank, 6 F. Supp. 2d 496, 500 (E.D. Va.
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199Tj. The court may also look to documents attached to the amended complaint and those
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incoll?orated by reference without converting a defendant's motion to dismiss under Rule 12(b)(6)
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; into alRule 56 motion for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353
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B. The May 5-6, 2014 Incidents.
Many of the defendants argue that Routon's claims concerning the May 2014 events are
barr.ed under the applicable statute of limitations. The court agrees.
Routon presents his federal constitutional claims under Section 1983, a statute that permits
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'an aggrieved party to file a civil action against a person for actions taken under color of state law
that violated his constitutional rights. See Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013).
Because.Congress did not include time limits in the statute for filing a§ 1983 action, such cases
are governed by the statute of limitations governing general personal injury actions in the state
where the wrongful conduct allegedly occurred. See Owens v. Okure, 488 U.S. 235, 239, 250
(1989). In addition, the state's tolling rules apply in calculating the timeliness of a § 1983
comp~aint.
Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980); Scoggins v. Douglas, 760
F.2d 535, 537-38 (4th Cir. 1985).
: In Virginia, the limitations period for general personal injury claims is two years. See Va.
Code.Ann. § 8.01-243(A). Thus, Routon had two years from the date when his § 1983 claims
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A Soc'y Without A Name v. Virginia, 655 F.3d 342, 348
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