United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on both Defendants' Motions
to Dismiss the Second Amended Complaint.
Claiborne T. Richardson II ("Richardson") is an
Assistant Commonwealth's Attorney for Prince William
County, Virginia; Defendant Kenneth E. Labowitz is
Administrator pursuant to Code of Va. §
64.2-454 of the Estate of David E. Abbott ("Abbott
Estate"), deceased detective of the Manassas City Police
Department. Plaintiff Trey Sims ("Plaintiff")
brings an action alleging violations of his Fourth and
Fourteenth Amendment rights (Counts I, IIA, IIB, and III);
conspiracy to interfere with his civil rights under 42 U.S.C.
§ 1983 (Count IV); and production of child pornography
in violation of 18 U.S.C. § 2251(a) (Count V).
Plaintiff was 17 years old, he and his then girlfriend
exchanged sexually explicit photographs and videos. In
January 2014, Plaintiff's girlfriend's mother
reported this behavior to the Manassas City Police
Department, which initiated an investigation of Plaintiff.
Detective Abbott was the lead detective on the investigation.
On January 6, 2014, Plaintiff was charged with the juvenile
version of felony manufacture and distribution of child
pornography. Assistant Commonwealth's Attorney Claiborne
Richardson was the lead prosecutor on the case. On the date
of Plaintiff's trial, June 3, 2014, Richardson made and
Plaintiff rejected a plea offer. Richardson dismissed the
charges against Plaintiff on a nolle prosequi.
same day, Detective Abbot-at Richardson's direction-
obtained and executed a detention order from the juvenile
court service unit to detain Plaintiff in a secure juvenile
detention center. Detective Abbott also obtained a search
warrant authorizing him to photograph Plaintiff's erect
penis and other parts of Plaintiff's body for use in the
underlying investigation. At the juvenile detention center,
Detective Abbott directed Plaintiff to use his hand to
manipulate his penis so that Plaintiff could stimulate an
erection. Detective Abbott took pictures of Plaintiff's
penis, which remained flaccid.
4, 2014, Plaintiff was arraigned once more, this time on
charges of possession and distribution of pornography. On
June 13, 2014, Detective Abbott told Plaintiff's counsel
that he needed photographs of Plaintiff's erect penis to
compare to the images being investigated. The detective
advised counsel that Plaintiff could accomplish an erection
himself, or that the police could take Plaintiff to a
hospital to give him an erection-inducing injection. At a
court hearing on July 1, 2014, Plaintiff rejected a second
plea offer. That same day, Detective Abbott sought and
obtained a second search warrant for photographs of
Plaintiff's erect penis. Plaintiff moved to quash the
warrant, and Richardson agreed in open court not to execute
the new warrant or to introduce the previously-obtained
photographs in Plaintiff's case.
August 1, 2014, Plaintiff's charge of felony manufacture
of child pornography was amended to felony possession
thereof. At trial, on August 4, 2014, the Juvenile and
Domestic Relations Court, making no finding of guilt,
suspended imposition of a sentence pending Plaintiff
successfully completing a one-year probation. After
successful completion of the terms of his probation,
Plaintiff's charges were dismissed in August 2015.
filed his initial complaint on May 25, 2016. He amended his
complaint on June 6, 2016, and then filed a Second Amended
Complaint-the operative complaint-on July 25, 2016, upon
leave from the Court. Plaintiff alleges the following counts:
(I) Fourth Amendment violation for seizing Plaintiff in the
juvenile detention center without probable cause; (IIA)
Fourth Amendment violation for procuring photographs of
Plaintiff's penis; (IIB) in the alternative to Count IIA,
Fourteenth Amendment substantive due process violation for
procuring photographs of Plaintiff's penis; (III)
Fourteenth Amendment substantive due process violation for
threatening Plaintiff with an erection-producing injection;
(IV) conspiracy to interfere with Plaintiff's Fourth and
Fourteenth Amendment rights under 42 U.S.C. § 1983; and
(V) production of child pornography in violation of 18 U.S.C.
§ 2251(a), actionable under 18 U.S.C. § 2255.
Defendants now move to dismiss the Second Amended Complaint
under Fed.R.Civ.P. 12(b) (6) for failure to state a claim
upon which relief can be granted.
survive a motion to dismiss, 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).
Although a court considering a motion to dismiss must accept
all well-pled factual allegations as true, this deference
does not extend to legal conclusions.
"naked assertions devoid of further factual
enhancement" nor " [t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements" suffice. Id. After Iqbal,
complaints are required to allege "a plausible
claim for relief" instead of merely stating facts that
leave open "the possibility that a plaintiff
might later establish some set of undisclosed facts to
support recovery." McCleary-Evans v. Md. Dep't
of Transp., State Highway Admin., 780 F.3d 582, 587 (4th
Cir. 2015) (emphasis in original). In sum, the plausibility
standard is the touchstone by which a complaint's
adequacy is determined.
Richardson and Detective Abbott were employed as government
officials, the Court must determine whether they are immune
from Plaintiff's suit for damages. Governmental officials
receive either absolute or qualified immunity from suits for
damages "to shield them from undue interference with
their duties and from [the] potentially disabling threats of
liability." Harlow v. Fitzgerald, 457 U.S. 800,
806 (1982). Although most officials receive only qualified
immunity, absolute immunity shields a state prosecutor acting
within the scope of his duties in initiating and pursuing a
criminal prosecution and in presenting the state!s
case. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
These activities are "intimately associated with the
judicial phase of the criminal process[.]" Id.
In other words, absolute immunity extends to those acts
"which occur in the course of [the prosecutor's]
role as an advocate for the State." Buckley, v.
Fitzsimmons, 509 U.S. 259, 273 (1993); see also
Dababnah v. Keller-Burnside, 208 F.3d 467, 470-72 (4th
Cir. 2000). On the other hand, a prosecutor engaged in
investigative or administrative functions, or in providing
legal advice to the police, receives the lesser protection of
qualified immunity. Buckley, 509 U.S. at 273-74;
Burns v. Reed, 500 U.S. 478, 492-93 (1991).
Court finds that Richardson is entitled to absolute immunity.
Richardson's conduct during Plaintiff's criminal case
was not merely investigatory or administrative, and it did
not amount to providing legal advice to Detective Abbott.
Rather, Richardson acted within the scope of his
prosecutorial duties. Richardson prosecuted Plaintiff using
search warrants, plea offers, detention, and supervision. All
of these tools were part of "initiating a prosecution
and ... presenting the State's case, " and thus,
Richardson's conduct in deploying these tools is
protected by absolute immunity. See Imbler, 424 U.S.
compares his case to Burns v. Reed, where a state
prosecutor advised police officers that they could question a
murder suspect under hypnosis, but did so only after the
officers asked whether hypnosis was an acceptable
investigative technique. 500 U.S. at 482. When the suspect
confessed to the murder while hypnotized, the prosecutor
advised the police that they "probably had probable
cause" to arrest the suspect. Id. In the
present case, Plaintiff does not claim that Detective Abbott
was unsure of the legality of photographing Plaintiff's
penis and thus turned to Richardson for guidance. Authorizing
the gathering of evidence for a case he was prosecuting does
not amount to Richardson providing legal advice to the
further argues that his constitutional rights were violated
because one of the searches occurred after the case was
nolle prossed, before Plaintiff was re-charged.
Plaintiff offers no legal authority to support this argument.
Further, "the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the
initiation of a prosecution and actions apart from the
courtroom[, ]" which may require "obtaining,
reviewing, and evaluating" evidence. Imbler,
424 U.S. at 431 n. 33. Richardson acted within the scope of
his duties in initiating and pursuing a criminal prosecution
when he worked with Detective Abbott to obtain evidence