United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
the Court are Defendants' Motions to Dismiss
Plaintiffs' Second Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Having reviewed the
Parties' filings, this matter is ripe for judicial
determination. For the reasons set forth below,
Defendants' Motions are GRANTED IN PART AND
DENIED IN PART.
FACTUAL AND PROCEDURAL HISTORY
case involves an alleged racially motivated attack that two
while men carried out against two teenager African-American
neighbors. Following the attack, Defendants are alleged to
have engaged in a campaign of racial violence, harassment,
and intimidation to force Plaintiffs, the only
African-American family on the block, to leave their home and
neighborhood. Plaintiffs also allege that following notice of
a potential suit, Defendants fraudulently transferred
property to frustrate their anticipated recovery.
filed an initial complaint on May 25, 2017, and alleged
violations of the Thirteenth Amendment. 42 U.S.C. §
1982, 42 U.S.C. § 1985(3), and the Fair Housing Act. ECF
No. ] at 3. Plaintiffs' claims for assault and battery,
hate crimes, and the fraudulent transfer were brought under
Virginia state law. Id. Plaintiffs argue this Court
has supplemental jurisdiction under 28 U.S.C. § 1367 to
hear the state claims because they arise out of the same
facts as the federal claims. Id.
Douglass Clark filed a 12(b)(6) motion to dismiss on June 28,
2017. ECF No. 11. Plaintiffs filed a motion in opposition and
Defendant Clark filed a rebuttal brief. ECF No. 13; No. 15.
Defendants, Stephen, Sandra, and Christina Cooke also filed
12(b)(6) motions. ECF No. 18; No. 20; No. 22. On August 8,
2017, the Court granted Plaintiffs' motion to file an
amended complaint. ECF No. 26. The Court stipulated that any
Defendant could file a response to the amended complaint but
if they chose not to, their original response would stand.
Id. Plaintiffs filed their amended complaint on
August 8, 2017, and Defendants did not file additional
responses. ECF No. 27. Plaintiffs filed a reply to the Cooke
Defendants' Motions to Dismiss and the Cooke Defendants
filed rebuttals. ECF No. 31; No. 32. Defendants also
requested a hearing on its motions to dismiss. ECF No. 33;
No. 16. The Court will address all the parties' motions
and finds that a hearing is not necessary.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of actions that fail to state a claim upon which relief can
be granted. For purposes of a Rule 12(b)(6) motion, courts
may only rely upon the complaint's allegations and those
documents attached as exhibits or incorporated by reference.
See Simons v. Montgomery Cty. Police Officers, 762
F.2d 30, 31 (4th Cir. 1985). Courts will favorably construe
the allegations of the complainant and assume that the facts
alleged in the complaint are true. See Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007); Mylan
Laboratories, Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993). A court will only grant a motion to dismiss if
"it appears to a certainty that the plaintiff would be
entitled to no relief under any state of facts which could be
proved in support of his claim." Johnson v.
Mueller, 415 F.2d 354 (4th Cir. 1969).
a complaint need not contain detailed factual allegations,
"[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all the allegations in the complaint are true." Bell
Art. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If the
factual allegations alleged by the plaintiff do not nudge the
plaintiffs claims "across the line from conceivable to
plausible, their complaint must be dismissed."
Id. at 570.
I: Conspiratorial, Racially Motivated Violence
allege Defendants Stephen Cooke and Douglass Clark conspired
to intimidate, harass, and ultimately attack Plaintiff Happy
because of his race in violation of 42 U.S.C. § 1985 (3)
and the Thirteenth Amendment. ECF No. 27 at 14. Both
Defendants argue that Plaintiffs' conspiracy claim fails
because there was not an "agreement" or
"meeting of the minds" to attack or target Happy
because of his race. See ECF No. 12 at 4-5; No. 19
at 5. Defendants also assert that Plaintiffs present
conclusory statements or legal conclusions regarding its
racial conspiratorial claims, not facts as required by the
federal rules. Id.
establish a cause of action for conspiracy under Section
1985, the plaintiff must prove the following: 1) a conspiracy
of two or more persons, (2) who are motivated by a specific
class-based, invidiously discriminatory animus to (3) deprive
the plaintiff of the equal enjoyment of rights secured by the
law to all, (4) and which results in injury to the plaintiff
as (5) a consequence of an overt act committed by the
defendants in connection with the conspiracy. Simmons v.
Poe, 47 F.3d. 1370, 1376 (citing Buschi v.
Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985)). The
plaintiff must show an agreement or a "meeting of the
minds." Id. at 1377. It is also well settled
that where a conspiracy is alleged, "[t]threadbare
recitals of the elements of a cause of action, supported by
merely conclusory statements, similarly do not suffice."
A Society Without a Name v. Virginia, 655 F.3d 342,
346 (4th Cir. 2011) (quoting Twombly, 550 U.S. at
557)). The plaintiff must plead facts that amount more than
"parallel conduct and a bare assertion of conspiracy,
" and must plausibly suggest agreement rather than being
merely consistent with it. Id.
Plaintiffs allege sufficient facts that Defendants conspired
to commit violence against Happy because of his race. In
support, Plaintiffs allege that prior to the assault, Cooke
stated "look at all those niggers over there, do you see
them? Look at those little niggers running through the
driveway." ECF No. 27 at 6. He is also alleged to have
called the children "dirt frogs" and "tree
monkeys." Id. Defendant Clark is alleged to
have been with Defendant Cooke drinking alcohol when these
statements were made. Id. at 5.
complaint further alleges that after he heard these
statements, Happy confronted Cooke and Clark. Id. at
7. Happy asked Defendants why they used racial slurs and
stated they were wrong for doing so. Id. Next, Cooke
and Clark are alleged to have "together stepped off the
deck onto the ground and walked over to Happy in a menacing
manner." Id. Then, with Clark next to him,
Cooke "walked up and stood nose-to nose- with Happy and
stated "[w]hat are you going to do. Do you want some of
this? Go ahead and jump, nigger! Jump, nigger, jump!"
Id. The complaint alleges that Happy felt threatened
by the racial slurs and backed away. Id. Both men
are alleged to have continued to follow Happy and Cooke kept
repeated "jump, nigger jump." Id. Then,
Cooke is alleged to have shoved Happy in his chest causing
him to stumble into Clark, and Clark responded by punching
and putting Happy into a headlock. Id. at 8. The
complaint alleges that Cooke's bump was a
"confrontation bump." Id. Given the
sequence of these events, Plaintiffs pled sufficient facts
that Defendants Cooke and Clark conspired to use racial
violence against Happy.
argue that there was no communication between Cooke and Clark
and therefore there was no agreement or meeting of the minds
to assault Happy because of his race. See ECF No. 12
at 4-5; No. 19 at 5. This argument fails because plaintiffs
establishing a civil rights conspiracy "need not produce
direct evidence of a meeting of the minds." See
Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421
(4th Cir. 1996). Plaintiffs, however, may present
"specific circumstantial evidence that each member of
the alleged conspiracy shared the same conspiratorial
objective." Id. The evidence must at least
reasonably lead to an inference that coconspirators
positively or tacitly came to a mutual understanding to try
to accomplish a common and unlawful plan. See id.
the circumstantial evidence presented, and the assumption
that the facts alleged are true, Plaintiffs pled sufficient
facts demonstrating a meeting of the minds. First, prior to
the assault, Cooke shouted racial slurs towards the children
playing in the yard, including Happy. ECF No. 27 at 6. When
confronted about the racial slurs, both Defendants are
alleged to have "together stepped off the deck onto the
ground and walked over to Happy in a menacing manner."
Id. at 7. Then, with Clark next to him, Cooke stood
nose to nose with Happy and continued blaring racial slurs.
Id. Happy backed away after feeling threatened by
the racial slurs; however, both men are alleged to have
continued to follow him with Cooke again blaring racial
actions follow a pattern where a racial slur is uttered
followed by threats of violence. Although Defendant Cooke
stated the racial slurs, Defendant Clark accompanied Cooke in
proceeding physically towards Happy following the racial
slurs. This sequence occurred twice followed by Defendant
Cooke pushing Happy into Clark and Clark then physically
attacking Happy. The progression of these sequences, coupled
with the fact that both Clark and Cooke are Caucasian and
Happy African-American, are sufficient to demonstrate that it
is plausible Defendants tacitly agreed to intimidate, harass,
and attack Happy because of his race. This conclusion is
consistent with the Court's parameters on a 12(b)(6)
motion because it is a "context specific-task that
requires the reviewing court to draw on its judicial
experience and common sense." Francis v.
Giacomeli, 588 F.3d 186, 193 (4th Cir. 2009).
Defendants' Motion to Dismiss Count I is DENIED.
II: Conspiratorial, Racially Motivated Violence
Count II, Plaintiffs allege Defendants Cooke and Clark
conspired to intimidate, harass, and threaten violence
against L.F. because of her race. Plaintiffs allege that
following the attack on her brother, L.F. ran into the
neighbor's yard and yelled at the men to stop. ECF No. 27
at 8. In response, Cooke pushed her away and caused her to
stumble backwards. Id. Cooke then restrained L.F. to
prevent her from removing her brother away from Clark's
assault. Id. Defendants argue, as they did in Count
I, that Plaintiffs fail to make sufficient factual
allegations that there was a conspiracy, and specifically, an
agreement between Defendants to assault L.F. because of her
race. ECF No. 19 at 5-6; No. 12 at 5. Additionally, Defendant
Cooke alleges that any action against L.F. was in response to
her provocation, not because of her race. ECF No. 19 at 6.
Plaintiffs fail to plead sufficient facts that Defendants
conspired to intimidate, harass or commit an act of violence
against L.F. because of her race. The facts allege that L.F.
attempted to come to her brother's aid from Clark's
physical attack but Cooke forcibly restrained and stopped
her. The complaint does not contain any factual allegations
that Cooke and Clark acted together in any manner towards
L.F. In contrast to facts alleged in Count I, the facts here
do not contain the same level of joint and concerted effort.
In the exchange with Happy, following the racial slurs and
Happy confronting and reprimanding them, Defendants are
alleged to have stepped off the deck together and walked over
to Happy in a menacing manner. See ECF No. 27 at 7.
Then, both men are alleged to have followed Happy and one of
the Defendants yelled racial slurs. Id. In that
instant, there was a pattern of racial slurs followed by a
threat of violence.
contrast to Count I, no such pattern or sequence can be
reasonably inferred from the alleged facts. In fact, there
are no allegations that yield an inference that Clark was
even aware of L.F.'s presence, nor were there any racial
slurs directed at L.F. when she attempted to aid her brother.
Without more, and even considering the facts in light
favorable to Plaintiffs, the Court cannot conclude that there
was an agreement to intimidate, harass or attack L.F. because
of her race. ...