United States District Court, E.D. Virginia, Richmond Division
MICHAEL J.G. SAUNDERS, Plaintiff,
CRAIG M. BURNS, Defendants.
M.HANNAH LAUCK UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Wendy S.
Hughes's Motion to Dismiss for Failure to State a
Claim (the "Hughes Motion to
Dismiss"), (ECF No. 9), and Defendant Craig M.
Burns's Motion to Dismiss for Failure to State a
Claim (the "Burns Motion to Dismiss"),
(ECF No. 15), and Plaintiff Michael J.G. Saunders's
Motion for Status Conference, (ECF No. 20). Saunders,
proceeding pro se and in forma pauperis,
has responded to both motions (ECF Nos. 12, 19), and both
Defendants have replied, (ECF Nos. 13, 19). No defendant has
responded to Saunders's Motion for Status Conference, and
the time to do so has expired. The Court dispenses with oral
argument because the materials before it adequately present
the facts and legal contentions, and argument would not aid
the decisional process. Accordingly, the matter is ripe for
disposition. For the reasons that follow, the Court will
grant the Hughes Motion to Dismiss and the Burns Motion to
Dismiss and deny as moot Saunders's Motion for a Status
Conference. The Court will dismiss the Complaint without
Standard of Review
Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 980 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Ail. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "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 678
(citing Twombly, 550 U.S. at 556). Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations
Obligation to Construe Pro se Pleadings
courts have a duty to construe pro se pleadings liberally.
Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va.
1999). A pro se plaintiff must nevertheless allege facts
sufficient to state a cause of action. Id. (citation
omitted). The Court cannot act as a. pro se litigant's
"advocate and develop, sua sponte, statutory and
constitutional claims that the [litigant] failed to clearly
raise on the face of [the] complaint." Newkirk v.
Circuit Court of the City of Hampton, No. 3:14cv372,
2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).
Factual and Procedural Background
Saunders's Underlying Convictions
September 2, 2008, the Circuit Court of the County of
Chesterfield, Virginia (the "Chesterfield Circuit
Court") convicted Saunders following a guilty plea to
two counts of "consensual sodomy with juveniles"
under § 18.2-361 (A). Saunders v. Commonwealth, 753
S.E.2d 602, 605 (Va. Ct. App. 2014). On each count, the
Chesterfield Circuit Court sentenced Saunders to five
years' incarceration with five years suspended.
Id. Saunders was also required to: (1) have no
contact with either victim; (2) register in the Sex Offender
and Crimes Against Minors Registry ("SOCRAM"); (3)
remain under "supervised probation indefinitely, under
the supervision of a Probation Officer, until released by the
Court or by the Probation Officer"; and, (4) "pay
court costs, ... and any interest that may accrue until the
balance is paid in full." (Sept. 2, 2008 Sentencing O.
2, ECF No. 1-7.) Following this judgment, Saunders
filed-without success-various direct and collateral attacks on
his convictions, including one petition for a writ of habeas
corpus under 28 U.S.C. § 2254.
August 4, 2009, the Chesterfield Circuit Court found Saunders
guilty of violating the conditions of his probation. See
Saunders, 753 S.E.2d at 605. The Chesterfield Circuit Court
revoked Saunders's previously-suspended sentences, and
re-imposed a total sentence often years' incarceration,
with all ten years suspended on the conditions of: (1) good
behavior; (2) supervised probation until released by the
Court or the Probation Officer; and, (3) the payment of
"original court costs, current court costs, ... and any
interest that may accrue until the balance is paid in
full." (August 4, 2009 Show Cause Revocation O. 1-2.)
Four months later, on November 4, 2009, the Chesterfield
Circuit Court again found Saunders guilty of violating the
conditions of his probation. The court revoked the
previously-suspended sentences, re-imposed a total sentence
often years' incarceration, and suspended seven years on
the conditions of: (1) good behavior; (2) mental health
treatment; (3) sex offender treatment; (4) making "no
threats to any other person"; (5) supervised probation,
commencing upon Saunders's release from incarceration and
continuing until released by the Court or the Probation
Officer; and, (6) the payment of "original court costs,
current court costs, ... and any interest that may accrue
until the balance is paid in full." On August 22, 2012,
the Chesterfield Circuit Court found Saunders guilty of
violating the conditions of his probation a third time,
imposing another active three-year period of incarceration
with four years' incarceration suspended on the
conditions of: (1) good behavior; (2) supervised probation
for fifteen years until released by the Court, (3) the
payment of "original court costs, current court costs,
... and any interest that may accrue until the balance is
paid in full." (August 22, 2012 Show Cause O. 1-2.)
appealed the August 22, 2012 probation revocation to the
Virginia Court of Appeals. See Saunders, 753 S.E.2d at 605.
Among other challenges, Saunders attacked his underlying 2008
convictions based on Lawrence,  539 U.S. 558, and MacDonaldv.
Moose, 710 F.3d 154 (4th Cir. 2013)
("MacDonalaVMoose") Saunders, 753 S.E.2d at 606.
Saunders argued that the Chesterfield Circuit Court lacked
jurisdiction to impose any sentence on his probation
violation because his original 2008 convictions flowed from a
statute declared unconstitutional by the Fourth Circuit in
MacDonald/Moose. Id. at 607. The Virginia Court of
Appeals upheld the Chesterfield Circuit Court's decision,
finding that the Supreme Court of Virginia's holding in
McDonald v. Commonwealth, 645 S.E.2d 918 (Va. 2007),
affirming the constitutionality of the anti-sodomy provision
as to conduct with minors, bound its decision regarding
Saunders's appeal. Id. at 608, 611.
Supreme Court of Virginia later reaffirmed this holding in
Toghill v. Commonwealth, 768 S.E.2d 674 (Va. 2015).
In Toghill, the Supreme Court of Virginia reaffirmed the
constitutionality of Section 18.2-361(A) as applied to
Toghill because Toghill, like MacDonald, had been convicted
based on conduct involving a minor. Toghill, 768 S.E.2d at
679. The Supreme Court of Virginia expressly declined to
follow the Fourth Circuit's holding in MacDonald/Moose,
noting that it provided only persuasive authority.
Id. at 677. The Toghill court noted that the
'"normal rule' is that 'partial, rather than
facial invalidation [of a statute] is the required course ...
[because courts] try not to nullify more of a
legislature's work than is necessary.'" Toghill,
768 S.E.2d at 680 (quoting Ayotte v. Planned
Parenthood, 546 U.S. 320, 329 (2004)). Partial invalidation
does less to frustrate the "intent of the elected
representatives of the people." Id. The
Virginia Supreme Court noted with approval some aspects of
the dissenting opinion in MacDonald/Moose. See
Toghill, 768 S.E.2d at 679 n.4 (citing
MacDonald/Moose, 710 F.3d at 169 (Diaz, J.,
dissenting)); see also Id. at 683-84 (Mims, J.
concurring) (citing MacDonald/Moose, 710 F.3d at 167 (Diaz,
The Allegations in Saunders's Complaint
Complaint before the Court challenges the garnishment of
Saunders's wages to pay outstanding court costs and fees.
Saunders alleges that on or about May 19, 2016, he received a
"Notice of Lien and Demand for Payment of Court
Liabilities, Under Section 58.1-1804 of the Code of Virginia,
" (the "Notice and Demand"). (Compl. 4, ECF
No. 3.) The Notice and Demand required Saunders's
employer to withhold money from Saunders's check
"for Payment of court liabilities." (Not. and
Demand 1, ECF No. 1-3.) In all, Saunders owed $616.62 to
"Goochland Combined Court" for case number
075GT1300283700, and $10, 237.09 to "Chesterfield