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Willoughby v. Commonwealth

United States District Court, E.D. Virginia, Richmond Division

September 20, 2017

MIKE M. WILLOUGHBY, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al., Defendants.

          MEMORANDUM OPINION

          M. HANNAH LAUCK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on two motions to dismiss Plaintiff Mike M. Willoughby's Amended Complaint: (1) Defendants Danny A. Ojibway and J.D. Bernacki's Motion to Dismiss (the "Officers' Motion to Dismiss"), (ECF No. 13); and, (2) Defendant Commonwealth of Virginia's Motion to Dismiss (the "Commonwealth Motion to Dismiss"), (ECF No. 15), (collectively, the "Motions to Dismiss").[1] The Officers' Motion to Dismiss was filed pursuant to Federal Rule of Civil Procedure 12(b)(6), [2] and the Commonwealth Motion to Dismiss was filed pursuant to Federal Rules of Civil Procedure 12(b)(1)[3] and 12(b)(6). Willoughby did not respond to either of the Motions to Dismiss, 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. The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331[4] and 1367.[5] For the reasons that follow, the Court will grant the Officers' Motion to Dismiss and deny as moot the Commonwealth Motion to Dismiss. The Court will dismiss the Amended Complaint.

         I. Standard of Review

         A. Obligation to Construe Pro Se Pleadings Liberally

         District 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 Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).

         B. Federal Rule of Civil Procedure 12(b)(6) Standard

         "A 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 5A 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, 7 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).

         The 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 Atl 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 omitted).

         II. Procedural and Factual Background

         A. Procedural Background

         On September 22, 2016, the Commonwealth of Virginia (the "Commonwealth"), Bernacki, Ojibway (collectively, the "Defendants") filed a Joint Notice of Removal, removing Willoughby's Complaint from the Circuit Court of the City Richmond. (ECF No. 1.) All three defendants then filed motions to dismiss. (ECF Nos. 3, 5.) Within twenty-one days after service of those motions, Willoughby filed a Letter Motion for Leave to Amend with an Amended Complaint attached. (See ECF Nos. 9, 9-1.) Pursuant to Federal Rule of Civil Procedure 15(a)(1)B), [6] the Court ordered Willoughby to file his Amended Complaint and denied as moot the defendants' motions to dismiss. (See October 31, 2016 O. 1-2, ECF No. 11.)

         On November 21, 2016, Willoughby filed his Amended Complaint. (ECF No. 12.) Willoughby's Amended Complaint asserts four claims, which are numbered but include no title. Construing the Amended Complaint liberally, as it must, the Court interprets Willoughby's claims as follows:

Count I: Equal Protection Violation - Ojibway and Bernacki violated Willoughby's "Fourteenth Amendment[7] constitutional rights to be free from racial profiling police harassment, " (Am. Compl. 3);
Count II: Intentional Tort - Ojibway and the Commonwealth "were intentionally negligent when they racially profiled" Willoughby, and Bernacki "was intentionally negligent when he allowed and permitted [O]ibway and the Commonwealth] to racially profile" Willougby, (Am. Compl. 6);
Count III: Fourth Amendment Violation - Ojibway, the Commonwealth, and Bernacki violated Willoughby's "Fourth Amendment[8] Constitutional rights to be free from unreasonable searches and seizures, " (Am. Compl. 10); and,
Count IV: Equal Protection Violation - Ojibway, Bernacki, and the Commonwealth violated Willoughby's "Fourteenth Amendment Constitutional rights to be free from racial profiling police harassment, " (Am. Compl. 13-14).

         Willoughby brings Counts I, III, and IV pursuant to 42 U.S.C. § 1983, [9] and brings Count II pursuant to "Virginia intentional tort law for personal injury." (Am. Compl. 4.)

         Ojibway and Bernacki moved to dismiss all counts against them. They argue that: (1) Counts I and IV should be dismissed because Willoughby failed to articulate any factual allegations supporting his conclusory allegations of discrimination; (2) Count II should be dismissed because Willoughby alleged no cognizable intentional tort; and, (3) Count III should be dismissed because Willoughby's factual allegations did not amount to an unreasonable search and seizure. In the alternative, Ojibway and Bernacki assert that qualified immunity protects them from liability on Counts I, III, and IV because none of the rights Willoughby seeks to vindicate in those counts were clearly established at the time Bernacki and Ojibway allegedly violated them. Willoughby did not respond to the Officers' Motion to Dismiss.

         The Commonwealth moves to dismiss all counts against it. The Commonwealth argues that the Eleventh Amendment[10] and sovereign immunity protects it from suit for damages. The Commonwealth contends in the alternative that the Amended Complaint should be dismissed pursuant to Rule 12(b)(6) because Willoughby failed to plead facts sufficient to state a claim against the Commonwealth for a violation of his constitutional rights or for a violation of Virginia tort law. Willoughby did not respond to the Commonwealth Motion to Dismiss.

         C. Summary of Allegations in the Amended Complaint[11]

         The claims in Willoughby's Amended Complaint center around interactions Willoughby had with members of the Henrico County Police Department on two occasions. On May 10, 2016, in "the first case of unwelcomeness [sic] and racial profiling police harassment behaviors, " Willoughby alleges that, "Henrico County Police Department alleged marijuana smoking were [sic] occurring [at 185 N. Laburnum Avenue Apt. 2] and the apartment was searched by police with police K9 dogs in assistance." (Am. Compl. 1, 5, 12.) Willoughby asserts that the search uncovered no drugs, and "no charges were filed." (Id.) Willoughby contends that Ojibway and the Commonwealth violated the duty of care they owed to him "as a law abiding citizen resident in their county" by "intentionally infringing on the plaintiff [sic] ...


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