United States District Court, E.D. Virginia, Alexandria Division
Benjamin S. Brown, Plaintiff,
R. A. Kleinholz and Officer McWhirter, Defendants.
S. Brown, a Virginia inmate proceeding pro se, has filed a
civil rights action, pursuant to 42 U.S.C. § 1983,
alleging claims of unlawful search and seizure, false arrest
and malicious prosecution. The matter is before me Court on
Defendants' Motion to Dismiss for Failure to State a
Claim, to which plaintiff has filed a Memorandum in
Opposition. After careful consideration, for the reasons
which follow, defendants' Motion will be granted, and the
complaint will be dismissed pursuant to Fed.R.Civ.P.
in the light more favorable to the plaintiff, the alleged
facts giving rise to this action occurred on August 26, 2012.
when plaintiff was driving in the Richmond area and one of
his tires blew out. Am. Compl. at 2. Plaintiff drove his
vehicle onto "the embankment off the side of the
roadway" and got out to assess the damage; he was not
"pulled over or stopped for anything." Compl. at 5;
Am. Compl. at 7. Officer Kleinholz of the Richmond Police
Department and members of plaintiff s family arrived at the
scene simultaneously. Am. Compl. at 2. As plaintiff was
talking with his family members, Officer Kteinholz began to
search plaintiffs vehicle without permission. Compl. at 5.
According to plaintiff, Kleinholz "arrived looking for
trouble with the intentions to [harass] and cause
problems." Am.Compl. at 7.
saw the officer remove a bag which contained "a single
un-open [sic] alcoholic beverage container" from the
passenger side of the car, and when plaintiff asked what he
was doing Officer Kleinholz stated that he was investigating
a call of a reckless driver in the area. Compl. at 5; Am.
Compl. at 2. Members of plaintiff s family and plaintiff
himself continued to question Kleinholz as to why he was
searching the car, and Kleinholz allegedly "became
defensive threatening to lock people up if they didn't be
[quiet]." Am. Compl. at 5. Kleinholz then began to ask
questions about the ownership of the vehicle and who had been
driving it, and plaintiff acknowledged that it was his car
and he had been driving. Am. Compl. at 3. When plaintiff
stated that he was the driver, Officer Kleinholz asked if he
had been drinking, and plaintiff responded that he bought a
beer earlier after he got off work. Compl. at 6.
Kleinholz then requested that plaintiff perform field
sobriety tests. Compl. at 6; Am. Compl. at 3. When plaintiff
asked, "For what?, " Kleinholz responded that he
believed plaintiff had been drinking. Compl. at 6. He further
stated that if plaintiff refused to perform the field
sobriety tests, plaintiff would be arrested on suspicion of
driving under the influence. Compl. at 6; Am. Compl. at 3-4.
Plaintiff thereupon performed the field sobriety tests and
was given a "PBT" (Le., Breathalyser test). Am.
Compl. at 4. During this time, members of plaintiffs family
and Kleinholz were "exchanging words." Compl. at 6.
result of this encounter, plaintiff was arrested for driving
under the influence of alcohol, in violation of Va. Code
§18.2-266, and also was charged with a civil violation
of refusal to submit to a breath test in violation of Va.
Code §18.2-268.3. Am. Compl. at 4; Def. Ex. A-B. He was
taken to the "police lockup, " and Officer
Kleinholz field a criminal complaint with a magistrate, Def.
Ex. C, and a "Declaration and Acknowledgment of Refusal
-Breath/Blood Test." Def. Ex. D. In the affidavit,
Kleinholz indicated he "arrived at a single crash
vehicle scene" where plaintiff "stated that he was
coming from work and had blown out a tire." Def Ex. C.
He noted that plaintiff had a "mickey's 24 oz
Alcoholic beverage in front passenger floorboard, " and
that plaintiff "stated he had 1 beer since leaving work
2 hours ago." ]d. Kleinholz further indicated that
"SFST were started which [plaintiff] failed, " and
that plaintiff had "refused breath test."
was granted bail and released pending trial. Compl. at 7;
Def. Ex. E. Plaintiff states that he then was ordered to
report to his parole officer, and his parole was revoked.
Compl. at 7. On January 14, 2013, plaintiff was found guilty
of both offenses charged. Compl. at 7. Plaintiff states that
he appealed the convictions and was "acquitted on
October 17, 2013, and that he subsequently was "remanded
back to jail." Compl. at 7.
further alleges that Officer McWhirter also arrived on the
scene of his disabled vehicle, and that McWhirter
"assisted in aiding and helping [Officer Kleinholz]
violate [plaintiffs] constitutional rights by making a false
arrest." Compl. at 5. According to plaintiff, McWhirter
"allowed [Kleinholz] to make false reports and
didn't step up to challenge them or correct them under he
color of law." Id. Plaintiff states that
McWhirter did not report witnessing the PBT test being
administered to plaintiff, and failed to follow proper
procedures when he assisted and observed Kleinholz doing so.
Compl. at 5; Am.Compl. at 11-12. Plaintiff asserts that
McWhirter's job is to "uphold the truth" and
that he is guilty of the same misdeeds as Kleinholz because
he did not put a stop to them. Am Compl. at 11-12.
filed the initial complaint in this action on August 13,
2014,  alleging that his constitutional rights
were violated by Officer Kieinholz's actions, which in
plaintiffs view amounted to illegal search and seizure,
malicious prosecution, and false arrest. Compl. at p. 4. In
addition to Officer Kleinholz, the named defendants were the
Commonwealth of Virginia and Ray J. Tarasovic, the Richmond
Chief of Police. Plaintiff sought an award of
compensator)' and punitive damages. By an Order entered
on October 21, 2014, deficiencies in the complaint were
explained in deference to plaintiffs status as a pro se
litigant, and plaintiff was provided with an opportunity to
submit a particularized and amended complaint. [Dkt. No. 4]
After plaintiff did so [Dkt. No. 6], an Order was entered
granting plaintiffs application to proceed in forma
pauperis and directing Officers Kleinholz and McWhirter
to file responsive pleadings. [Dkt. No. 4] In addition,
plaintiff s claims against the Commonwealth of Virginia and
Police Chief Ray J. Tarasovic were dismissed for failure to
state a claim pursuant to 28 U.S.C. § 1915 A.
Standard of Review
12(b)(6) allows a court to dismiss allegations which fail
"to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). When determining
whether a motion to dismiss should be granted, a court
focuses on the facts alleged, presumes them to be true, and
construes in the light most favorable to the plaintiff.
Chaudhry v. Mobil Oil Corp., 186 F.3d 502, 504 (4th
Cir. 1999). To survive a 12(b)(6) motion,
'*a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face."" Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations ... a plaintiffs
obligation to provide the 'grounds of his
'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. at 555.
However, the principle that a court must accept the
allegations in a complaint as true does not extend to legal
conclusions, and "[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). Moreover, a complaint survives a
motion to dismiss only if it states a plausible claim for
relief; if the well-pleaded facts '"do not permit
the court to infer more than the mere possibility of
misconduct, the complaint... has not 'show[n] that the
pleader is entitled to relief." Id.
as here, a plaintiff is unrepresented, "pleadings should
not be scrutinized with such technical nicety that a
meritorious claim should be defeated, and even if the claim
is insufficient in substance, it may be amended to achieve
justice." Leeke v. Collins, 574 F.2d 1147, 1151
(4th Cir.), cert, denied. 439 U.S. 970 (1978),
citing Rice v. Olson, 324 U.S. 786 (1945). More
recently, the Supreme Court has directed that a pro se
complaint should not be dismissed summarily unless "it
appears 'beyond doubt that the plaintiff can prove no set
of facts in support of his claim ...