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Brown v. Kleinholz

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

September 26, 2017

Benjamin S. Brown, Plaintiff,
R. A. Kleinholz and Officer McWhirter, Defendants.


         Benjamin 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. 12(b)(6).

         I. Factual Background

         Construed 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.[1] 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.

         Plaintiff 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.

         Officer 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.

         As a 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." Id.

         Plaintiff 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.

         Plaintiff 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.

         II. Procedural History

         Plaintiff filed the initial complaint in this action on August 13, 2014, [2] 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.

         III. Standard of Review

         Rule 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.

         Where, 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 ...

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