United States District Court, E.D. Virginia, Richmond Division
DON C. NEWBY, Plaintiff,
J.R. BROOKS, Defendant.
A. Gibney, Jr. United States District Judge
Newby, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. 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. (ECF No. 14.) Newby has filed a
Response. (ECF No. 18.) For the reasons stated below, the
Court will GRANT the Motion to Dismiss.
STANDARD FOR MOTION TO DISMISS
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).
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).
SUMMARY OF PLAINTIFF'S ALLEGATIONS
Complaint, Newby alleges that Defendant Brooks violated his
Fourth Amendment rights. Newby alleges:
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
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
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
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
(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.
Mot. Dismiss Ex. 3, ECF No. 15-3.) 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 ...