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Watford v. Roane

United States District Court, W.D. Virginia, Harrisonburg Division

December 21, 2017

DESIREE WATFORD, Plaintiff,
v.
MICHAEL ROANE, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Plaintiff Desiree Watford's complaint asserts claims under 42 U.S.C. § 1983 against Augusta County Deputy Sheriff Michael Roane and an unidentified defendant, “John Doe, ” based on events that occurred on or about June 5, 2017. In Count One, Watford alleges that John Doe violated her Fourth Amendment rights under the United States Constitution when he handcuffed her when she arrived at a home where he was executing a search warrant. In Count Two, she alleges that Roane violated her Fourth Amendment rights by searching her home pursuant to a warrant that she alleges was not supported by probable cause. (See generally Compl., Dkt. No. 1.)

         Pending before the court are two motions, both filed by defendant Roane: (1) a motion to strike and/or for an order to show cause (Dkt. No. 10); and (2) a motion to dismiss (Dkt. No. 5). Both motions have been fully briefed. The court concludes that the materials before it adequately present the facts and legal conclusions, and so it does not need a hearing on either motion. See W.D. Va. Civ. R. 11(b); Fed.R.Civ.P. 78(b).

         For the reasons set forth in more detail below, the court will deny the motion to strike or for an order to show cause and will grant the motion to dismiss and dismiss the claims against Roane without prejudice.

         I. BACKGROUND

         On or about June 5, 2017, Watford drove her vehicle to the address of 50 Enchanted View, in Fisherville, Virginia, where Roane and John Doe were executing a search warrant.[1]She was there to visit a family member. After Watford parked her car across the street, Doe approached her, told her she had entered an “ongoing investigation, ” and directed her to get out of the car and to hang up her phone. Doe told her she was being detained, and Roane handcuffed her hands behind her back. Watford alleges that she was handcuffed for more than fifteen minutes and that, during that time, the deputies did not ask about or search her for weapons. Roane asked Watford where she lived. Another deputy then asked if she had drugs in her home, to which she responded, “No.” (Compl. ¶¶ 8-18.)

         When Watford gave Roane her address (in Staunton, Virginia), he asked if he could search her home. She initially gave him consent, but after Roane and other deputies arrived there, she revoked that consent and asked whether he had a warrant. Roane told her that he did not have a warrant, said “Oh this is what you want to do, this is what you want to do, ” and then drove away. He returned approximately one hour later with a “purported search warrant” and provided Watford with a copy before anyone entered her home. Then, Roane and others searched her home, causing damage to her closet walls during the search. They also searched a motor vehicle, “allegedly pursuant to the subject search warrant, ” and a neighbor's trash can. No drugs were found, and Watford was not arrested. (Compl. ¶¶ 19-30.) She claims, though, that the search activity constituted a “significant disturbance to [her] life” and that it “contribut[ed] to a decision to evict her from her home.” (Id. ¶ 27.)

         As noted, Roane is named only in Count Two, which is a claim under 42 U.S.C. § 1983 that the search of Watford's home violated the Fourth Amendment. (Id. ¶¶ 35-38.) Therein, she alleges that the search was unlawful because Roane “unlawfully obtain[ed] a search warrant based on false statements.” (Id. ¶ 37.) She claims that Roane “has absolutely no credible basis to believe that [she] had drugs in her home; [she] simply had a child by the brother of the suspect at the Fisherville home.” (Id.) She further alleges that “[n]o informant or anyone else ever told Roane that [she] was seen dealing drugs or that she was hiding drugs.” (Id.)

         II. DISCUSSION

         A. Motion to Strike

         Roane has filed a motion to strike Watford's opposition memorandum to the motion to dismiss. In it, he argues that one of the attorneys who electronically signed the document, Mario Williams-who apparently maintains an office in Georgia, but failed to include a physical address on the filing-was not admitted to practice in this court at the time the opposition was filed and had not been admitted pro hac vice. Roane contends that the filing violates the local rules of this court. He also cites to the Virginia and Georgia Rules of Professional Conduct in arguing that the filing was improper and should not be considered. (Def.'s Mot. Strike, Dkt. No. 10.)

         In response, Watford first argues that Roane is seeking an advisory opinion as to what is actually a motion for sanctions in the guise of a motion to strike, but without all the “attenuated risks of paying plaintiff's attorney fees and costs” if defendant's motion is denied. (Resp. to Pl.'s Mot. Strike 1, Dkt. No. 11.) Watford contends that any allegations of unethical misconduct are untrue and further asserts that because an attorney who is a member of the bar of this court also signed the opposition, the local rules are satisfied. The response also goes on to address various other arguments raised by the motion. (Id.)

         The court has considered the filings of the parties, including Roane's reply (Dkt. No. 12), and will deny the motion to strike. The court will not go into the minutiae of the arguments raised and notes that the local rules provide that an attorney who is not admitted to practice before this court-either as an admitted member or admitted pro hac vice in a particular case- should not appear before this court and should not be signing documents before the court. But the filings on behalf of the defendant here also include the name and electronic signature of an attorney who is admitted to practice before this court. And Mr. Williams-both before and after the motion to strike-had informed the court of his intention to seek admission to the court, which he has now done. (Dkt. Nos. 17, 18 (motion to proceed pro hac vice and order granting same).)[2] Furthermore, it is the practice of this court to allow an attorney to appear in a case where the attorney has advised that a motion for admission pro hac vice is either pending or forthcoming, at least where there is an admitted attorney also appearing in the case on behalf of the same party. Accordingly, even if Mr. Williams' appearance did not strictly comply with the rules governing the appearance of attorneys in this court, the court does not find that striking the opposition is the appropriate remedy.

         B. ...


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