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Newby v. Brooks

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

September 28, 2017

DON C. NEWBY, Plaintiff,
v.
J.R. BROOKS, Defendant.

          MEMORANDUM OPINION

          John A. Gibney, Jr. United States District Judge

         Don C. Newby, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] The action proceeds upon Newby's Particularized Complaint ("Complaint, " ECF No. 8). The matter is before the Court on the Motion to Dismiss filed by Defendant J.R. Brooks.[2] (ECF No. 14.) Newby has filed a Response. (ECF No. 18.) For the reasons stated below, the Court will GRANT the Motion to Dismiss.

         I. STANDARD FOR MOTION TO DISMISS

         "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 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, 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) (second alteration 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 allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. "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." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). 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) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         II. SUMMARY OF PLAINTIFF'S ALLEGATIONS

         In his Complaint, Newby alleges that Defendant Brooks violated his Fourth Amendment[3] rights. Newby alleges:[4]

At about 02:21 on August 10, 2016, Defendant, Officer J.R. Brooks arrived at Plaintiffs apartment complex where Plaintiff was outside. As soon as Brooks arrived before even approaching Plaintiff, Brooks informed the Plaintiff that he was not free to go and thus seizing Plaintiff without reasonable suspicion in violation of the Fourth and Fourteenth Amendments.
As Defendant Brooks approached Plaintiff, he informed Plaintiff that he was under arrest for being drunk in public and upon reaching Plaintiff, immediately put Plaintiff in handcuffs.
Defendant Brooks later stated under oath that he believed that Plaintiff smelled of alcohol and was acting irate, which as a matter of law, does not give rise to the lawful requirement of probable cause to arrest.
Plaintiffs Fourth and Fourteenth Amendment rights were violated by Defendant Brooks when he was first seized without reasonable suspicion and again when arrested for drunk in public while Plaintiff was at his own apartment complex and Officer Brooks lacked probable cause that the plaintiff was in fact drunk.
At the hearing on January 11, 2017 the State Court held that Defendant Brooks had "suspicion at that point that [Plaintiff] might be intoxicated." Yet, that suspicion does not meet the legal standard of probable cause to arrest the Plaintiff.
Once Defendant Brooks and the Plaintiff were before the magistrate at Western Tidewater Regional Jail, Defendant Brooks manufactured a lie that Plaintiff spit on his (Brooks) face and with that lie, manufactured probable cause to charge Plaintiff with assault on a peace officer and although Defendant Brooks' lie was not supported by his own body camera, the other officer's body camera or the many cameras at Western Tidewater Regional Jail, Defendant Brooks still charged the Plaintiff with assault on a peace officer in violation of Plaintiffs Fourth and Fourteenth Amendment rights.

(Compl. 2-3 (alteration in original) (internal paragraph numbers omitted).) The exhibits attached to Defendant Brooks's Motion to Dismiss indicate that Plaintiff was found guilty of public intoxication in the City of Suffolk, Virginia, General District Court on October 31, 2016. (Br.

         Supp. Mot. Dismiss Ex. 3, ECF No. 15-3.)[5] He was assessed a fine of $50.00 and court costs of $101.00. (Id.) On January 19, 2017, Newby entered a plea of nolo contendere to the felony charge of assault on a law enforcement officer in the City of Suffolk, Virginia, Circuit Court. (Id. Ex. 4, ECF No. 15-4.) He was ...


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