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Frazier v. Cooke

United States District Court, E.D. Virginia, Newport News Division

November 17, 2017

MISTER FRAZIER, et at Plaintiffs,
STEPHEN T. COOKE, et at Defendants.


         Before 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.


         This 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.

         Plaintiffs 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.

         Defendant 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.


         Federal 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).

         Although 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.


         Count I: Conspiratorial, Racially Motivated Violence

         Plaintiffs 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.

         To 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.

         Here, 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.

         The 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.

         Defendants 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.

         Considering 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 slurs. Id.

         These 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).

         Accordingly, Defendants' Motion to Dismiss Count I is DENIED.

         Count II: Conspiratorial, Racially Motivated Violence

         In 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.

         Here, 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.

         In 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. ...

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