United States District Court, E.D. Virginia, Newport News Division
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For Corey Moody, Plaintiff: Michael Bruce Ware, LEAD ATTORNEY, Adrienne Michelle Sakyi, Schempf & Ware, PLLC, Yorktown, VA; Timothy Gerard Clancy, Moschel Clancy & Walter PLLC, Hampton, VA.
For The City of Newport News, Virginia, Defendant: Darlene Paige Bradberry, LEAD ATTORNEY, City of Newport News, Newport News, VA; Adonica Baine, Office of the City Attorney of Newport News, Newport News, VA.
For Danielle Hollandsworth, individually, Defendant: Jeff Wayne Rosen, Jeffrey A. Hunn, Pender & Coward PC, Virginia Beach, VA.
For Russel Tinsley, individually, Defendant: Brian Nelson Casey, LEAD ATTORNEY, Thomas Jeffrey Salb, Taylor & Walker PC, Norfolk, VA.
For Randy Gibson, individually, Defendant: James Arthur Cales, III, Furniss Davis Rashkind & Saunders PC, Norfolk, VA.
For Ryan Norris, individually, Defendant: Christopher Roland Hedrick, LEAD ATTORNEY, Mason Mason Walker & Hedrick PC, Newport News, VA; Alan Brody Rashkind, Furniss Davis Rashkind & Saunders PC, Norfolk, VA.
AMENDED OPINION AND ORDER[*]
Mark S. Davis, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on a Motion to Dismiss, ECF No. 6, filed by Defendants, The City of Newport News, Virginia (" the City" ), James D. Fox (" Chief Fox" ), and Richard W. Myers (" Chief Myers" or, collectively with the
City and Chief Fox, " City Defendants" ). After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J). For the reasons set forth below, City Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL HISTORY
1. The Parties
Corey Moody (" Plaintiff" ) is a resident of the Commonwealth of Virginia. Complaint ¶ 5, ECF No.1. The City is a duly incorporated municipality of the Commonwealth of Virginia. The City " is the legal entity responsible for . . . the Newport News Police Department" (the " Police Department" ). Id. ¶ 10. Chief Fox is a resident of the Commonwealth of Virginia and was " the Chief of Police of the Newport News Police Department," employed by the City or the Newport News Police Department " until September, 2013. Id. ¶ 12. According to Plaintiff, as chief of police, Chief Fox " both exercised and delegated his municipal final decision making power to the Professional Standards Division" (" PSD" ). Id ¶ 13. Chief Myers is a resident of the Commonwealth of Virginia, is currently the chief of police of the Police Department, and has served in that capacity since January 2014. See id. ¶ 14. According to Plaintiff, as chief of police, Chief Myers " both exercised and delegated his municipal final decision making power to the [PSD]." Id. ¶ 15. Through the delegation of final decision making power to the PSD, Plaintiff alleges that the PSD makes final policy decisions " with respect to reviewing police misconduct" that " create liability" for City Defendants. Id. ¶ 70.
Ryan Norris (" Officer Norris" ) is a resident of the Commonwealth of Virginia, and the City " and/or" the Police Department employed him as a law enforcement officer. Id. ¶ 6. Danielle Hollandsworth (" Officer Hollandsworth" ) is a resident of the Commonwealth of Virginia, and the City " and/or" the Police Department employed her as a law enforcement officer. Id. ¶ 7. Russel Tinsley (" Officer Tinsley" ) is a resident of the Commonwealth of Virginia, and the City " and/or" the Police Department employed him as a law enforcement officer. Id. ¶ 8. Randy Gibson (" Officer Gibson" or, collectively with Officers Norris, Hollandsworth, and Tinsley, " Individual Defendants" ) is a resident of the Commonwealth of Virginia, and the City " and/or" the Police Department employed him as a law enforcement officer. Id. ¶ 9. Plaintiff claims that Chiefs Fox and Myers " trained and supervised" Individual Defendants. Id. ¶ 16.
2. The December 12, 2012 Incident and Investigation
On December 12, 2012, at around 7:00 p.m., Plaintiff alleges that he " was lawfully
operating a vehicle, registered to his mother, upon the public roadway." Id. ¶ 21. At that time, according to Plaintiff, he was unarmed, had not consumed alcohol or illicit substances that evening, and did not have drugs in the vehicle. Id. ¶ ¶ 27-28. However, purportedly unbeknownst to Plaintiff, a federal warrant for his arrest had been issued. Id. ¶ 23. Although Plaintiff had been charged with violations of state laws and those charges were pending resolution on December 12, 2012, he asserts that he " had attended all hearings and court appearances associated with such charges." Id. ¶ 24.
Officers Hollandsworth and Tinsley, in an unmarked vehicle, pulled over Plaintiff's vehicle " on the I-664 overpass near 35th [S]treet and Madison Avenue in Newport News, Virginia." Id. ¶ 22. In addition, Officers Gibson and Norris responded to the scene of the stop. Id. ¶ 26.
After Plaintiff pulled over to the side of the road, Officers Hollandsworth and Tinsley approached the vehicle Plaintiff was operating. Id. ¶ 29. Plaintiff alleges that at least one officer, Officer Tinsley, see id. Id 38, " had already drawn his gun and pointed the gun at [Plaintiff] ." Id. ¶ 30. Officer Tinsley asked Officer Hollandsworth " Is this the guy?", and Officer Hollandsworth " replied affirmatively." Id. ¶ ¶ 31, 38.
According to Plaintiff, Officer Tinsley then " instructed Plaintiff to place his hands outside the window of the car." Id. ¶ ¶ 32, 38. Plaintiff alleges that he " repeatedly asked why he was being pulled over" and about " the nature of the charges against him, and made " other inquiries" into the " unexplained, aggressive encounter" with the officers. Id. ¶ 33. However, the officers did not inform Plaintiff " as to the purpose for the [o]fficers' actions." Id. ¶ 34. Officer Tinsley began to handcuff Plaintiff, to which Plaintiff " protested asking why he was being arrested." Id. ¶ ¶ 35, 38. Plaintiff claims that Officer Tinsley then " began pulling [Plaintiff's] arm and attempting to pull [Plaintiff] through the open window out of the vehicle" and " began using profanity and yelling statements such as, XI will blow your head off.'" Id. ¶ ¶ 36-38.
Plaintiff alleges that Officer Hollandsworth then " fired upon the vehicle from her position at the rear passenger side of the vehicle." Id. ¶ 41. " Fearing for his life, [Plaintiff] attempted to put the vehicle in neutral." Id. ¶ 42. According to Plaintiff, " one or more of the officers fired at least an additional six rounds into the vehicle immediately after or simultaneously with Officer Hollandsworth's shots," id. ¶ 43, striking the vehicle with " shots from multiple directions." Plaintiff attempted to take cover from the rounds " by leaning over to the passenger side of the car as the car rolled forward in neutral." Id. ¶ 45. " [T] wo of the bullets fired by the [o]fficers struck [Plaintiff] in the leg and in his back, and the bullet that struck Plaintiff's back " severed his spinal cord causing him permanent paralysis." Id. ¶ 46-47. " Officer Tinsley was injured in the incident by shrapnel or glass from the other officers' shots." Id. ¶ 48. Plaintiff asserts that " [a]fter the shooting subsided and the vehicle coasted to a stop, an additional unidentified officer dragged [Plaintiff] out of the vehicle, pointed a gun at his head, and yelled at him to tell the officers where the gun was located." Id. ¶ 49. According to Plaintiff, at no time during the encounter did Plaintiff " reach into a console or glove box, into his coat, or [make] any other furtive motion." Id. ¶ 39. Plaintiff
claims that " [a]ll officers engaged in the unprovoked attack. None of the officers took any steps to protect Plaintiff against the other officers' use of excessive force, despite being in a position and having a duty to do so." Id. ¶ 54.
Plaintiff alleges that the actions of the Individual Defendants " were done pursuant to the preexisting and ongoing deliberately indifferent official custom, practice, decisions, policy, training, and supervision" of the City Defendants and " were done . . . intentionally . . . in disregard for Plaintiff's federally protected rights." See id. ¶ 65.
Following the shooting, the Police Department " searched both the vehicle and the suspect thoroughly after the incident," but found no weapon or drugs on Plaintiff or in the vehicle. Id. ¶¶ 51-52. " At the time of the incident, the [Police Department] initially claimed in statements to the media that there was an exchange of gunfire between police and [Plaintiff]," Id. ¶ 50; however, Plaintiff asserts that, one week after the incident, the Police Department admitted that " it did not appear that the suspect fired a weapon." Id. ¶ 53.
The PSD, a division of the Police Department " tasked with internal investigation of use of police force," " purported to undertake an investigation of the use of force against [Plaintiff]." Id ¶ ¶ 57, 59. Plaintiff alleges that the PSD did not contact him to participate in the investigation. Id. ¶ 60. According to Plaintiff, " [t]he [PSD] failed to meaningfully investigate the issue of use of excessive force, including failing to contact [Plaintiff] for an interview. Id. ¶ 69.
The PSD publishes findings on internal investigations on the " use of police force" in an annual report. See id. ¶ ¶ 57-58. The PSD did not announce a finding on the Individual Defendants' use of force against Plaintiff in the 2012 PSD Annual Report, published on April 4, 2013, but indicated that the " investigation was still pending." Id. ¶ ¶ 61-62. The PSD also did not announce a finding on the Individual Defendants' use of force against Plaintiff in the 2 013 PSD Annual Report, published on March 6, 2014. Id. ¶ 63. According to Plaintiff, the PSD's " findings were not released in a comparable report and lack of publication exhibits intent to conceal the investigation of the matters alleged in [the] Complaint." Id. ¶ 64. Plaintiff alleges that the actions of the PSD " were done pursuant to the preexisting and ongoing deliberately indifferent official custom, practice, decisions, policy, training, and supervision" of the City Defendants and " were done intentionally . . . in disregard for Plaintiff's federally protected rights." See id. ¶ 65.
3. Broader Allegations Against City Defendants
In addition to the facts of Plaintiff's particular case, Plaintiff alleges that the PSD " routinely ratifies the malicious collusive conduct and unconstitutional actions of the police by failing to contact victims of police force and otherwise ignoring serious complaints of excessive force." Id. ¶ 68. Also, Plaintiff claims that " in the period before and since this event, the [PSD] has unfounded other complaints of excessive force by law enforcement." Id. ¶ 72. Specifically, on February 18, 2007, while Chief Fox served as chief of police, officers of
the Police department " shot and killed unarmed Robert L. Harper during an attempt by six officers to arrest him after his bond was revoked." Id. ¶ 73. Plaintiff alleges that Officer Tinsley was involved in that incident and " has been the subject of complaints and investigations both prior to and since this event." Id. ¶ 74. According to Plaintiff, the PSD's actions create liability for City Defendants. Id. ¶ 70.
Plaintiff further alleges that the City Defendants " with deliberate indifference to the rights of citizens to be free from excessive force by police," have " encouraged" and " ratified" " a dangerous environment of police brutality" by " ongoingly failing to properly or neutrally investigate citizen complaints of excessive force" and " tolerating, encouraging, and permitting collusive statements by involved officers in such situations." Id. ¶ 66. Likewise, Plaintiff alleges that the decisions of the PSD are " further evidence of the ongoing deliberately indifferent custom . . . [and] policy . . . of the [City Defendants] of tolerating and encouraging lawlessness and disregard for federal rights." Id. ¶ 71.
With respect to the City Defendants, Plaintiff also asserts that City Defendants have a policy of permitting officers to use excessive force; failing to supervise police officers; and failing to train police officers. Id. ¶ 67. According to Plaintiff, City Defendants have also ratified and encouraged a " dangerous environment of police brutality" by " failing to adequately punish unconstitutional uses of force." Id. ¶ 66.
Similarly, Plaintiff claims that City Defendants have shown deliberate indifference to Plaintiff's constitutional rights by failing to train their officers and failing to supervise their officers in the " appropriate constitutional limits on the use of force, knowing that these members of law enforcement therefore pose a significant risk of injury to the public." Id. ¶ 67. In particular, according to Plaintiff,
[i]n light of the duties . . . of those police officers that participate in arrests[,] . . . the need for specialized training and supervision is so obvious, and the inadequacy of the training and/or supervision is so likely to result in the violation of constitutional and federal rights [,] that the failure to provide such specialized training and supervision is deliberately indifferent to those rights.
Id. ¶ 119.
B. Procedural History
On July 31, 2014, Plaintiff filed his Complaint in this Court alleging that the City and Individual Defendants deprived Plaintiff of his constitutional rights in violation of 42 U.S.C. § 1983 (" Section 1983" ). ECF No. 1. Plaintiff has sued Officers Hollandsworth, Tinsley, Gibson, and Norris in their individual capacities. Id. ¶ ¶ 6-9. Plaintiff has also sued Chiefs Fox and Myers, in their official capacities, and the City. Id. ¶ ¶ 10, 12, 14. On August 29, 2014, City Defendants filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 6. In their Memorandum in Support of the Motion to Dismiss, City Defendants ask the Court to dismiss the claims against Chiefs Fox and Myers because Plaintiff seeks monetary damages, rather than injunctive relief, from those Defendants only in their official capacity, rendering those claims duplicative of the claim against the City. Mem. Supp. Mot. to Dismiss at 4, ECF No. 7. City Defendants also contend that the Complaint fails to state a claim upon which relief can be granted against the City because the Complaint does not provide a basis for holding the City liable for the actions of the Individual Defendants. See id. at 5. In support of their motion, City Defendants assert that, to the extent of any inconsistency, the Court should consider
the factual allegations in the exhibits attached to the Complaint to control over the Complaint's factual allegations. Id. at 6.
On September 9, 2014, Plaintiff filed a Brief in Opposition to City Defendants' Motion to Dismiss. ECF No. 8. Plaintiff contends that he has stated a claim against City Defendants because: Plaintiff has identified the PSD as a final delegated policy decision maker and alleged a policy of failing to adequately investigate and punish misconduct, see id. at 4-5; Plaintiff has alleged that City Defendants failed to adequately train their officers in the use of force, see id. at 5-7; Plaintiff has alleged that the City Defendants failed to adequately supervise their officers through " failing to investigate claims of excessive force," id. at 8; and Plaintiff has alleged, through facts " similar to those made in support of the claim pursuant to a policy," that City Defendants had a practice of failing to properly investigate officers' use of excessive force " persistent and widespread" enough to constitute a " custom or usage with the force of law," id. at 9. In addition, Plaintiff " concedes that there is no longer a need to sue Defendant Myers or Defendant Fox in their personal capacity if the Defendant City remains a party to the suit." Id. at 10. Lastly, Plaintiff requests that the Court grant him leave to amend the Complaint if the Court determines that the Complaint does not sufficiently state a claim. Id.
On September 15, 2014, City Defendants filed a Rebuttal Memorandum in Support of the Motion to Dismiss. ECF No. 9. In response to Plaintiff's claim that he adequately alleged municipal liability based on a policy or custom, City Defendants contend that the " failure to investigate or take disciplinary action following a subject incident cannot support a claim of municipal liability, because an after-the-fact inadequate investigation or discipline could not have been the legal cause of [P]laintiff's injury." Id. at 4. City Defendants further argue that Plaintiff's allegations with respect to the City Defendants' failure to train or supervise the Individual Defendants are too conclusory to state a claim upon which relief can be granted. See id. at 5-7.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a complaint, or a claim within a complaint, based on the plaintiff's " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Rule 8(a) (2), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a) (2), so as to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (omission in original). The United States Supreme Court has interpreted the pleading standard set forth in Rule 8 (a) as requiring that a complaint include enough facts for the claim to be " plausible on its face" and thereby " raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 570 (internal citations omitted). The plausibility requirement is " not akin to a 'probability requirement,' but it asks for more than a sheer possibility" that a defendant is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556). In other words, " [a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663.
Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court " 'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, " 'Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.'" Twombly, 550 U.S. at 555 (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)) (omission in original). A complaint may therefore survive a motion to dismiss " even if it appears 'that a recovery is very remote and unlikely.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)) .
In considering a typical Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the " court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint." Kolon Indus., 637 F.3d at 448 (citing Sec'y of State for Defence v. Trimble Navigation Ltd.,484 F.3d 700, 705 (4th Cir. 2007); Phillips v. LCI Int'l Inc.,190 F.3d 609, 618 (4th Cir. 1999)). A district court " may consider documents attached to the complaint or the motion to dismiss 'so long as they are integral to the complaint and authentic.'" ...