United States District Court, W.D. Virginia, Harrisonburg Division
HERBERT B. DUNKLE, III, et. al . Plaintiffs,
RICHARD D. HOLCOMB Defendant.
Michael F. Urbanski Chief United States District Judge.
pro se, plaintiffs Herbert B. Dunkle, III and Julia Souter
filed a Complaint, ECF No. 3, against Richard D. Holcomb in
his official capacity as Commissioner of die Virginia
Department of Motor Vehicles. Plaintiffs seek leave to
proceed in forma pauperis. In addition, plaintiffs
allege Holcomb's imposition of driver's license
reinstatement fees ("Reinstatement Fees") violate
die U.S. Constitution's Sixth Amendment, die Due Process
and Equal Protection clauses of die Fourteenth Amendment, and
42 U.S.C. § 1983.
forma pauperis statute, 28 U.S.C. § 1915,
authorizes courts to allow indigent plaintiffs to proceed
without paying die typical filing fee. Because plaintiffs
appear to be indigent, die court will GRANT
Plaintiffs' Motions for Leave to Proceed in forma
pauperis. ECF No. 1; ECF No. 2.
forma pauperis statute, however, also requires
federal courts to dismiss a case if, at any time,, die in
forma pauperis plaintiff fails to state a claim upon
which relief can be granted. 28 U.S.C. § 1915. A failure
to state a claim means "that there is not
'sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."'
Bacon v. Rose, Civil Action No. 7:13cv00350, 2014
U.S. Dist. LEXIS 33151, at *5 (W.D. Va. Mar. 14, 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). When making this determination, the court must
liberally construe pro se complaints. Erickson
v. Pardus, 551 U.S. 89, 94 (2007). But, despite the
liberal construction requirement, the court cannot
"ignore a clear failure in the pleading to
allege facts which set forth a claim cognizable in a federal
district court." Smith v. Shwedo, No.
3:12-2286-CMC-PJG, 2012 U.S. Dist. LEXIS 161156, *4 (D.S.C.
Oct. 22, 2012).
Sixth Amendment protects the rights of the accused in
criminal prosecutions. U.S. Const, amend. VI. Holcomb's
imposition of Reinstatement Fees is an administrative action,
not a criminal prosecution. So, plaintiffs cannot claim a
Sixth Amendment violation.
Fourteenth Amendment provides that "no State shall. . .
deprive any person of life, liberty, or property, without due
process of law." U.S. Const, amend. XIV. It protects
both procedural and substantive due process. See
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
To state either a substantive or procedural due process
violation, a plaintiff must first identify the protected
liberty, fundamental right, or property interest. See
Id. (describing substantive due process analysis); See
Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015)
(discussing procedural due process analysis).
do not clearly identify the protected liberty or fundamental
right they seek to protect. Nonetheless, construing the
Complaint liberally, plaintiffs appear to allege that the
challenged Reinstatement Fee violates their right to drive a
motor vehicle. But, the Constitution does not recognize or
protect a right to drive a motor vehicle. See Miller v.
Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (stating
plaintiff "does not have a fundamental 'right to
drive'"); Ciesielski v. Ind. BMV, No.
3:05-CV-205 RM, 2005 U.S. Dist. LEXIS 7010, at *2 (N.D. Ind.
Apr. 21, 2005) (stating that a right to travel
"doesn't ensure that citizens will be affording
also possible to construe the Complaint as alleging that the
actual driver's licenses are the property interest
plaintiffs seek to protect. "[A] driver's license is
a property interest that may not be suspended or revoked
without due process." Plumer v. Maryland, 915
F.2d 927, 931 (4th Or. 1990) (citing Bell v. Burson,
402 U.S. 535 (1971)). But, even straining to read this
allegation into the Complaint, the plaintiffs do not state
any facts about how their licenses were suspended. So, the
court has no way to determine whether the plaintiffs'
property interest was taken away without due process.
plaintiffs do not identify a constitutionally protected
liberty or fundamental right. Nor do plaintiffs allege facts
sufficient to claim a violation of a property interest. Thus,
plaintiffs' overall Due Process violation claim must
Fourteenth Amendment also provides that no State shall
"deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const, amend. XIV. To
state an equal protection claim, a plaintiff must plead
sufficient facts to "demonstrate that he has been
treated differently from others with whom he is similarly
situated and that the unequal treatment was the result of
intentional or purposeful discrimination." Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
do not allege any facts that plausibly lead to the conclusion
that Holcomb imposes Reinstatement Fees on them, as poor and
homeless individuals, but not others. Nor do plaintiffs
allege that their Reinstatement Fees are higher because of
their poor or homeless status. To the contrary, the base
Reinstatement Fees are the same for everyone. See
Va. Code § 46.2-411. Beyond the base Reinstatement Fees,
any increase depends on the underlying reasons for which a
person's license was initially suspended-regardless of
income or housing status. See id.
plaintiffs allege any facts that give rise to a plausible
inference that Holcomb imposes Reinstatement Fees on them
with an intent to discriminate on die poor or homeless. Thus,
plaintiffs fail to allege facts sufficient to claim an Equal
state a claim under § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the
Constitution or laws of die United States was violated,
and (2) that the alleged violation was committed by
a person acting under die color of state law."
Carter v. South Carolina, No.
6:10-1761-RBH-BHH, 2010 U.S. Dist. LEXIS 78491, at *5-6
(D.S.C. July 14, 2010) (citing West v. Atkins, 487
U.S. 42, 48 (1988)) (emphasis added).
fail to allege facts sufficient to claim violations of any
rights secured by die Constitution or other federal laws. So,