United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR., UNITED STATES DISTRICT JUDGE
Tight, LLC ("Trump"),  opened a restaurant and
lounge in Sussex County, Virginia, and, until its closing,
butted heads with Sheriff Raymond R. Bell. During Trump's
short-lived tenure in Sussex County, Sheriff Bell-through his
deputies, including Lieutenant Vincent B. Givens-allegedly
forced Trump to hire and pay off-duty uniformed deputies as
security, decreased the maximum occupancy limit, refused to
let Trump open to underage patrons, and, ultimately, shut
Trump's facility down. Trump sued Bell and Givens,
alleging multiple constitutional claims and one state law
claim. The defendants now move to dismiss the case for
failure to state a claim. Because qualified immunity protects
Bell and Givens, the Court grants the defendants' motions
to dismiss the constitutional claims. Without these federal
claims, the Court declines to exercise jurisdiction over the
remaining state law claim, dismissing this claim without
opened to the public in October 2013, after obtaining the
proper licenses from the Commonwealth and entering into a
lease. Every weekend or holiday night that Trump opened its
doors, uniformed deputies from the Sussex County Sheriffs
Office appeared to provide "security services outside
and at the door of the facility." (Am. Compl.
¶ 23.) The deputies saw plenty of action while providing
these services, making multiple arrests for various criminal
violations. (See Am. Compl. Ex. H.)
nights that the deputies provided security, Trump had no
control over the number or identities of the deputies
present. Givens served as the point person on most nights,
though he indicated that he worked at the direction of Bell.
At the end of the night, Givens or his proxy would demand and
collect cash payment from Trump for the deputies'
services, refusing to accept a check or to provide any sort
of documentation. The original cost of services was $25 per
hour per deputy, but-as notified by letter from Bell on
Sheriffs Office letterhead- increased to $35 per hour per
deputy in January 2014. In total, Trump paid the deputies $31,
550 in cash.
January 25, 2014, Givens, at Bell's direction, informed
Trump of a reduction in the facility capacity from 624-the
maximum occupancy approved by the Virginia Department of
Health-to 400. The deputies on scene enforced this reduction
by preventing patrons from entering. Trump's management
met with Bell and Givens to discuss its concerns, but
understood Bell's comments in the meeting as "a
veiled threat that [Bell] could have Trump closed if [it] did
not cooperate with Givens and him." (Am. Compl. ¶
12, 2014, Trump planned to open to patrons eighteen years old
or older-as opposed to patrons twenty-one or older, as it had
been operating. Trump received clearance from the Virginia
Department of Alcoholic Beverage Control ("ABC") to
open to these younger patrons. When Trump informed the
Sheriff, however, Bell said "that he would not allow
Trump to be open to those under the age of twenty-one, "
and refused to meet with Trump to discuss it. (Am. Compl.
¶ 41.) Despite Bell's statement, Trump opened to
patrons eighteen years old or older. The deputies initially
refused to allow eighteen- to twenty-year-old patrons into
the facility, eventually refusing admission to those
twenty-one or older as well.
management called Bell to protest. Between expletives, Bell
yelled at the management and threatened to shut Trump's
facility down. Bell said he would instruct Trump's
landlord to cancel its lease and would work with an ABC
employee to take Trump's ABC license. After the call,
Bell came to Trump's facility and, with the assistance of
Givens and the other deputies, entered the facility and
directed all patrons to leave. Further, Bell made Trump not
only refund the cover charge to patrons, but also pay the
deputies who shut down the facility. Finally, Bell told
Trump's management: "[I'm] going to revoke your
[ABC] license as of Monday[ a]nd I've called [your
landlord] . . . [y]our contract has not been extended."
(Am. Compl. ¶ 9.) Bell ended the evening by saying
"I want you out-I want you out-no, I want you out of
here this week. Out of my county. Because you know what? You
have this thug mentality." (Am. Compl. ¶ 49.) After
this evening, "[h]aving reasonable fear of Bell's
threats of arrest, Trump's management closed the business
and surrendered Trump's ABC license." (Am. Compl.
¶ 68.) The landlord leased the premises to Empire
Restaurant and Lounge, which pays off-duty deputies to
provide security services.
brings one state law claim and five constitutional claims
against Bell and Givens pursuant to 42 U.S.C. § 1983:
three under the Due Process Clause, one under the Fourth
Amendment, and one under the Equal Protection Clause. The
defendants move to dismiss on grounds of qualified immunity.
immunity protects government officials from liability under
§ 1983 arising from the performance of discretionary
actions within the scope of their authority. Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). It
applies so long as "their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known."
Id. Qualified immunity protects "all but the
plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335,
341 (1986). As the Fourth Circuit has said, qualified
immunity exists so that "[o]fficials are not liable for
bad guesses in gray areas; they are liable for transgressing
bright lines." Maciariello v. Sumner,
973 F.2d 295, 298 (4th Cir. 1992). In other words, qualified
immunity "gives ample room for mistaken judgments."
Malley, 475 U.S. at 343.
analysis of a qualified immunity claim entails two steps. In
the first step, a court must decide "whether a
constitutional right would have been violated on the facts
alleged." Saucier v. Katz, 533 U.S.
194, 200 (2001); Bailey v. Kennedy, 349
F.3d 731, 739 (4th Cir. 2003). This includes an analysis,
based on the evidence, of the specific right allegedly
violated, and a conclusion that such a right exists in the
particular circumstances of the case. Wilson v.
Layne, 526 U.S. 603, 609 (1999). In the second step,
a court must determine whether, at the time of the violation,
the right was clearly established such that a reasonable
officer in the defendant's position would know that his
actions would violate that right. Simmons v.
Poe, 47 F.3d 1370, 1385 (4th Cir. 1995). A court has
flexibility in the order in which it must perform this
analysis. Pearson v. Callahan, 555 U.S.
223, 236 (2009) ("[J]udges of the district courts and
the courts of appeals should be permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
analyzing the second step, "the right allegedly violated
must be defined at the appropriate level of specificity
before a court can determine if it was clearly
established." Layne, 526 U.S. at 615 (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Defining the right requires "a high level of
particularity." Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (citing
Anderson, 483 U.S. at 639; Taylor v.
Waters, 81 F.3d 429, 433 (4th Cir. 1996)); see,
e.g., Layne, 526 U.S. at 615 ("In this case, the
appropriate question is the objective inquiry whether a
reasonable officer could have believed that bringing members
of the media into a home during the execution of an arrest
warrant was lawful, in light of clearly established law and
the information the officers possessed."). Indeed, the
Supreme Court has "repeatedly told courts ... not to
define clearly established law at a high level of
generality." Ashcroft v. al-Kidd, 563
U.S. 731, 131 S.Ct. 2074, 2084 (2011); see also Id.
(providing the example that "[t]he general proposition .
. . that an unreasonable search or seizure violates the
Fourth Amendment is of little help in determining whether the
violative nature of particular conduct is clearly
defined, a court then determines whether the right "was
clearly established at the time of the claimed
violation" by looking at "the decisions of the
Supreme Court, [the Fourth Circuit] and the highest court of
the state in which the case arose." Wilson v.
Kittoe, 337 F.3d 392, 402-03 (4th Cir. 2003)
(internal alteration and citations omitted) (citing
Edwards, 178 F.3d at 251); see also Jean v.
Collins, 155 F.3d 701, 709 (4th Cir. 1998), cert,
granted, vacated on other grounds, 526 U.S. 1142 (1999)
("[I]f a right is recognized in some other circuit, but
not in this one, an official will ordinarily retain the
immunity defense."). While the second step in a
qualified immunity analysis "do[es] not require a case
directly on point, . . . existing precedent must have placed
the statutory or constitutional question beyond debate."
al-Kidd, 131 S.Ct. at 2083; see also Wilson
v. Layne, 141 F.3d 111, 114 (4th Cir. 1998)
affd, 526 U.S. 603 (1999) ("[A]lthough the
exact conduct at issue need not have been held to be unlawful
in order for the law governing an officer's actions to be
clearly established, the existing authority must be such that
the unlawfulness of the conduct is manifest."). In other
words, at the time of the officer's actions, "[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson, 483 U.S. at
each of Trump's constitutional claims, the Court will
determine first whether the facts in the complaint allege a
violation of constitutional right, then will look to whether
that right was clearly established at the time of the alleged
Due Process Clause
alleges three separate due process violations, specifically:
(1) for forcing Trump to hire and pay off-duty uniformed
deputies as security; (2) for decreasing the maximum
occupancy limit of Trump's facility; and (3) for shutting
down Trump's facility on July 12, 2014. The Fourteenth
Amendment mandates that "[n]o State shall . . . deprive
any person of life, liberty, or property, without due process
of law." U.S. Const, amend. XIV, § 1. The Due
Process Clause contains both a procedural and substantive
component, "guarantee[ing] more than fair process ... to
cover a substantive sphere as well, barring certain
government actions regardless of the fairness of the
procedures used to implement them." Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 840 (1998)
(quoting Washington v. Glucksberg, 521 U.S.
702, 719 (1997); Daniels v. Williams, 474
U.S. 327, 331 (1986)) (internal quotations omitted). Trump
alleges both procedural and substantive due process
violations by the defendants in each of its three separate
claims. The Court will evaluate these three claims as one,
and will look at both procedural and substantive due process
Procedural Due Process
due process focuses on the procedures involved when a State
effectuates a deprivation of protected interests. Carey
v.Piphus, 435 U.S. 247, 259 (1978)
("Procedural due process rules are meant to protect
persons not from the deprivation, but from the mistaken or
unjustified deprivation of life, liberty, or
property."). In order to succeed on a procedural due
process claim, a plaintiff must show (1) the existence of a
protected interest, (2) the deprivation of that interest by a
state actor, and (3) the occurrence of that deprivation
without due process of law. See ...