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Haendel v. Reed

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

February 13, 2018

DAN HAENDEL, Plaintiff,
v.
ANNA REED, et al., Defendants.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge.

         Dan Haendel, who is member of the District of Columbia Bar but a Virginia prisoner proceeding pro se, filed a verified complaint pursuant to 42 U.S.C. § 1983.[1]Plaintiff names as defendants: Anna Reed, an Assistant Commonwealth's Attorney for the City of Staunton ("Staunton"); Raymond C. Robertson, the Commonwealth's Attorney for Staunton; Jim Wilson, the Chief of Police for Staunton; BB Cully, a police officer for Staunton; Mark R. Herring, the Attorney General of Virginia; and Harold W. Clarke, the Director of the Virginia Department of Corrections. Plaintiff argues that he is being falsely incarcerated in violation of due process because his convictions for electronic communications with Officer Cully were used unlawfully during his state criminal proceedings. Defendants filed motions to dismiss, Plaintiff responded and filed a motion to amend, and most defendants renewed their motions to dismiss. After reviewing Plaintiffs submissions, I determine that Heck v. Humphrey, 512 U.S. 477, 478 (1994), bars the action, as amended, and dismiss it without prejudice as frivolous.

         I.

         A.

         Plaintiff was arrested on May 13, 2014, as a consequence of his communications of a sexual nature with Officer Cully, who had pretended to be a minor. Plaintiff was charged with attempting to take indecent liberties with a minor, in violation of Virginia Code §§ 18.2-370 and 18.2-26, and with using a communications system to facilitate a sexual offence with a minor, in violation of Virginia Code § 18.2-374.3. Plaintiff pleaded no contest, and on December 30, 2014, he was sentenced by the Circuit Court of Staunton ("Circuit Court") to an active term of seven years' incarceration.

         Nearly a year later in September 2015, Plaintiff filed with the Circuit Court a Motion for Reconsideration and Motion to Suppress Evidence. Plaintiff argued that the electronic communications with Officer Cully were unlawfully intercepted and should have been suppressed. The Circuit Court denied Motion for Reconsideration and Motion to Suppress Evidence, and Plaintiff appealed unsuccessfully to the Court of Appeals of Virginia and the Supreme Court of Virginia.

         In January 2016, Plaintiff commenced a civil action in state court by filing a pro se "Motion of Judgment" against Reed, Officer Cully, Staunton, the Staunton Police Department, the Office of the Commonwealth's Attorney for Staunton, and the Commonwealth of Virginia. Plaintiff alleged that these defendants violated Virginia Code § 19.2-69 jointly and severally, and are liable for damages.[2] In a subsequent filing titled, "Motion for Judgment - Amended, " Plaintiff argued that Reed and Officer Cully violated the provisions governing the use and disclosure of electronic conversations because Officer Cully posed as an underage minor without court approval. Plaintiff also argued that Officer Cully could not have "intercepted" the electronic conversations because the officer was a party to the conversation. The Circuit Court ultimately denied Plaintiff leave to file the "Motion for Judgment - Amended" and dismissed the case with prejudice on July 11, 2016. Plaintiff appealed unsuccessfully to the Supreme Court of Virginia.

         B.

         Plaintiff commenced this action no earlier than March 24, 2017, alleging, inter alia, constitutional due process violations by "Virginia Officials by failure to follow plain language of Virginia Statute as void ab initio resulting in false arrest and false imprisonment." Like in the "Motion for Judgement - Amended, " Plaintiff asserts that Reed and Officer Cully violated the law by using the incriminating electronic communications in the criminal proceedings against Plaintiff. Plaintiff maintains these defendants' acts tainted his criminal case and render his plea and convictions invalid and void ab initio.[3]

         In response to the motions to dismiss filed by Robertson, Reed, and Williams, Plaintiff filed a "motion to amend and motion in opposition to defendant's [sic] motion to dismiss."[4]Plaintiff explains that the motion is to clarify any misunderstandings about this action and to modify parts of the complaint.

         Initially, Plaintiff clarifies that he sues defendants in both their individual and official capacities. Nonetheless, Plaintiff amends the relief sought to omit "relief in the form of monetary damages" and an injunction that would compel a speedier release from incarceration.[5] Plaintiff seeks only declaratory relief that recognizes:

Virginia courts lack jurisdiction as void from the inception of the "sting" operation as contrary to the plain and specific language of the Virginia statutes in violation of civil rights under the Virginia and U.S. Constitutions. These officials formulated the "sting" operation knowing or having reason to know the limitations of VA Code [§] 19.2-62(B)(2) exemption for the "interception" by a party to the communication that such communications, even if "permissible, " are not "admissible" in Virginia legal proceedings, absent judicial authorization primarily because the Virginia statute, in contrast to the federal statute, makes it a felony violation to use and/or disclose the contents of an interception if the person so doing knows or has reason to know that the contents are from an intercept without requiring, as does the federal statute, that the intercept be in violation of the statute.

         Finding it appropriate to do so in accordance with Federal Rule of Civil Procedure 15 and Foman v. Davis, 371 U.S. 178, 182 (1962), the motion to amend is granted to the extent it clarifies the verified complaint as intended, and the relief is limited to declaratory relief. Cf. Kentucky v. Graham, 473 U.S. 159, 167 n.18 (1985) (noting a state's immunity can be overcome by naming state officials as defendants in official-capacity actions for injunctive or declaratory relief); Supreme Court of Virginia ...


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