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Calloway v. Commonwealth

United States District Court, W.D. Virginia, Harrisonburg Division

September 20, 2017

ANGELA CALLOWAY, Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         The claims in this case arise from an incident in which plaintiff Angela Calloway was strip-searched during the course of visiting an inmate at the Augusta Corrections Center (ACC), a facility run by the Virginia Department of Corrections (VDOC). Calloway's complaint names as defendants the Commonwealth of Virginia, the Warden of the ACC (defendant Woodson), four male employees of ACC who interacted with her on that date (defendants Brown, Hoskie, Lokey, and Shires), [1] and two Jane Does, who are the unidentified female officers who conducted the actual search. All of the defendants are named as to all of the “causes of action” set forth in the complaint.

         In addition to five state law tort claims, she also brings two claims under 42 U.S.C. § 1983, alleging that the illegal search violated her Fourth and Fourteenth Amendment rights under the United States Constitution and that defendants violated her due process rights under the Fifth and Fourteenth Amendments. Additionally, she brings corresponding claims under Article 1, Sections 10 and 11 of the Virginia Constitution, and a claim that the strip search violated Virginia Code § 19.2-59.1.

         Pending before the court is defendants' motion to dismiss, brought on behalf of all the named defendants, which seeks dismissal of Calloway's entire complaint on various grounds. The motion has been fully briefed and was argued before the court. For the reasons set forth herein, the court will grant the motion in part and deny the motion in part.

         I. BACKGROUND

         The facts recited in this section and relied on below are taken from the complaint. Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015). For purposes of the motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and construes them in the light most favorable to Calloway. Coleman v. Md. Court of Appeals, 626 F.3d 187, 189 (4th Cir. 2010).

         Prior to the incident at issue, Calloway had applied to attend visitation at the ACC and her application was approved. As part of that application process, she was required to pass a criminal record background check. Prior to the July 17, 2016 incident giving rise to this lawsuit, Calloway had participated in at least one prior authorized visit with an inmate at ACC without incident.

         Upon her arrival on July 17, 2016, she was required to show her driver's license for identification. After officers confirmed that she was on the approved visitor list, Calloway submitted to several security screening measures, including placing her jacket and shoes in a container for inspection, going through a metal detector, and undergoing an entire body “pat down” by a female officer for weapons or contraband. She was ultimately permitted to enter the visitation room and was directed to a table. The inmate she was there to visit arrived a few minutes later and sat at the same table across from Calloway. (Compl. ¶¶ 21-40, Dkt. No. 1.)

         For some period of time, Calloway and the inmate were permitted to visit. At approximately 1:30 p.m., visitation was paused so officers could conduct an inmate count, and then the visitation resumed. Approximately 20 to 30 minutes later, “suddenly and without warning four corrections officers surrounded the table at which [Calloway] and the inmate were visiting, and two of the officers quickly removed the inmate from the visitation room.” (Compl. ¶ 42.) Defendants Lokey and Brown then ordered Calloway to stand up, and they escorted her out of the visitation room and into another room. Lokey informed Calloway that she had been observed on camera trying to unbutton her pants and that this was the reason she had been removed from the visitation room. He further explained that sometimes people bring drugs into the ACC, so the officers must be very cautious. (Id. ¶¶ 43-46.)

         Calloway denied the accusation, said she did not have drugs, and told the officers that she would not have brought drugs to the ACC. She asked to view the video to which Lokey had referred, but that request was denied. Instead, Calloway was given the choice of either submitting to a strip search or being banned from all future visits to ACC. Defendants further advised Calloway that, even if she did consent to the search, she would not be permitted to return to the visitation that day and that she would have to go home. (Id. ¶¶ 47-55.)

         Calloway was confused and frightened by what she was told and “understood from their instructions that she had no choice but to submit to the search, and that she was in jeopardy of being hurt, detained, arrested[, ] or refused all future visitation if she declined to consent to the search.” (Id. ¶ 54.) Lokey gave her a consent form, and he told her to read it over and sign it. Calloway was upset and crying, but she “tried her best to stay calm, and to read the consent form.” (Id. ¶¶ 55-57.) She completed the form, signed it, and dated it. (Id. ¶ 58.)

         A few moments later, two female corrections officers entered the room and directed Calloway to another, smaller room where they stated she would be searched. Ultimately, they escorted her to a public restroom, where she was subjected to an invasive search. During the search, the deputies required Calloway to disrobe until naked and to remove a tampon from her body. The deputies conducted both a visual inspection and touched her body and hair. Calloway was also required to touch her own body, including lifting her breasts and using her hands to spread her buttocks so they could see that she was not concealing contraband. She also was required to squat and cough while naked two times. No contraband was found, and she was permitted to dress and to continue her visit. (Id. ¶¶ 60-83.)

         Several correctional officers, including defendants Hoskie and Shires, “seemed apologetic” to Calloway afterward. (Id. ¶ 84.) For example, Hoskie said to Calloway, “Sometimes when people think they see something but they didn't really see something, they still make their own assumption of it, that is what happened here, and that's how this all came about.” (Id. ¶ 85.) Hoskie and Shires advised that the warden was not at the center that day but told Calloway that if she wanted to contact someone about the incident, she should call the warden the following week. Hoskie also asked Calloway to put in a good word for him with the warden, if she spoke to him, “since he had been so helpful”-a request Calloway found “bizarre.” (Id. ¶¶ 88-89.) Although Calloway continued her visit until she was able to calm down, she has not visited the ACC since. (Id. ¶¶ 90-91.) She asserts that the defendants' decision to strip search her was made at a time when they were in possession of a video supporting her claims of innocence. She further alleges that defendants lacked reasonable suspicion to warrant/justify her detention and strip search.

         Her complaint lists her claims as seven “causes of action, ” all of which are asserted against all seven defendants:

1. A claim under 42 U.S.C. § 1983 alleging a Fourth Amendment violation, based on the strip search;
2. A claim under 42 U.S.C. § 1983 alleging Fifth and Fourteenth Amendment due process violations, based on her being required to submit to the strip search without any proof of the accusation against her or any opportunity to confront the officer, and without informing her that she was free to leave the Center without answering their questions and without consenting;
3. “Violations of Virginia Constitution and State Law, ” a claim that references Article 1, Sections 10 and 11 of the Virginia Constitution and Va. Code § 19.2-59.1;
4. A negligence claim;
5. An assault claim;
6. A false imprisonment claim; and
7. An intentional infliction of emotional distress claim.

(See generally Compl.)

         II. STANDARD OF REVIEW

         As noted, defendants' motion to dismiss seeks the dismissal of all claims against them on various grounds, including sovereign immunity and qualified immunity. The motion is filed under both Rule 12(b)(6) and 12(b)(1), for lack of jurisdiction.

         A Rule 12(b)(6) motion tests the legal sufficiency of a plaintiff's complaint to determine whether the plaintiff has properly stated a claim. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To avoid dismissal, the complaint must establish “facial plausibility” by pleading “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In essence, the plaintiff must “nudge[] [her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         In deciding whether Calloway has met this plausibility standard, the court must take as true all well-pleaded facts in the complaint and in any documents attached and integral to it. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further, the court must “draw[] all reasonable factual inferences from those facts in the plaintiff's favor, ” Edwards, 178 F.3d at 244, but it need not “accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments.” United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (citation omitted).

         A motion to dismiss under Rule 12(b)(1) tests the court's subject-matter jurisdiction over a plaintiff's claim. The plaintiff bears the burden of establishing that subject-matter jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In deciding a Rule 12(b)(1) motion to dismiss, “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). It must, however, “view[] the alleged facts in the light most favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R., 945 F.2d at 768).

         III. DISCUSSION

         A. The Claims Under the Virginia Constitution Are Subject to Dismissal.

         The court first concludes that Calloway's claims brought pursuant to Article 1, Sections 10 and 11 of the Virginia Constitution are subject to dismissal. As explained in Doe v. Rector & Visitors of George Mason Univ., 132 F.Supp.3d 712 (E.D. Va. 2015), reconsideration denied, No. 1:15-cv-209, 2015 WL 12806530 (E.D. Va. Oct. 2, 2015):

In order to enforce a private right of action under the Virginia Constitution, the provision in question must be self-executing. See Robb v. Shockoe Slip Found., 228 Va. 678, 324 S.E.2d 674, 676 (1985). Although the due process provision of the Virginia Constitution[, i.e., Article 1, Section 11, ] is “self-executing, ” this has only been held to be true with regard to property deprivation. See Gray v. Rhoads, 55 Va. Cir. 362, 2001 WL 34037320, at *5 (City of Charlottesville, 2001) (holding that the Due Process Clause of the Virginia Constitution is “self-executing, but only to the extent of deprivation of property” and collecting cases); Graham v. Mitchell, 529 F.Supp. ...

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