United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser Senior United States District Judge.
matter is before the Court on Defendant Joan Ziglar's
Motion to Dismiss and Plaintiff Malvester Dixon's Motion
to Substitute Party. The issues have been briefed by the
parties, and I heard argument on the motions on April 5,
2018. For the reasons stated herein, I will grant Defendant
Ziglar's Motion to Dismiss, deny Plaintiff's Motion
to Substitute Parties, and dismiss this action.
STATEMENT OF FACTS AND PROCEDURAL
Thomas was tragically murdered on September 26, 2000, and
Billy Ray Manns (“Manns”) implicated Plaintiff in
the crime. At Plaintiff's trial, Manns testified that
Plaintiff and another individual paid Manns $10, 000.00 to
murder Thomas. A jury convicted Plaintiff of capital murder.
his conviction and prior to his sentencing, Plaintiff moved
for a new trial. At a hearing on Plaintiff's motion,
Manns recanted his testimony and stated that he acted alone
in killing Thomas. Plaintiff was granted a new trial and the
prosecutor, Defendant Joan Ziglar, nolle prossed the
pending charges against Plaintiff. Plaintiff was a free man.
over a decade after the charges against him were dropped,
Plaintiff filed suit in this court asking that I issue a
declaration that he is “actually innocent” of the
charges. He contends that because his charges were dismissed
without a “declaration of innocence, ” his due
process right to a fair trial before jury of his peers was
original Complaint, Plaintiff named as defendants both Joan
Ziglar, the assistant Commonwealth's Attorney who
prosecuted him originally, and H. Clay Gravely, IV, who was
the elected Commonwealth's Attorney for the City of
Martinsville at the time of Plaintiff's prosecution. His
Complaint did not specify whether he was suing Gravely and
Ziglar in their official capacities as Commonwealth's
Attorney and assistant commonwealth attorney, their
individual capacities, or both. On January 30, 2018, I
informed Plaintiff that Gravely had passed away and
instructed him that, if he believed the claim survived, to
file an appropriate motion to substitute a
party. See Order, Jan. 30, 2018 [ECF No.
10]. On February 8, Plaintiff filed a motion to substitute
Andy Hall, the acting Commonwealth's Attorney for the
City of Martinsville, for Gravely. [ECF No. 16]. Both
motions-the motion to substitute a party and the motion to
dismiss-were set for oral argument on April 5, 2018.
Following argument, I informed Plaintiff that I was
constrained to dismiss his case. This Memorandum Opinion sets
forth the legal basis for that conclusion.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In determining facial
plausibility, the court must accept all factual allegations
in the complaint as true. Id. The Complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief” and
sufficient “[f]actual allegations . . . to raise a
right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555 (internal quotation marks
omitted). Therefore, the Complaint must “allege facts
sufficient to state all the elements of [the] claim.”
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003). Although “a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, ” a pleading that merely
offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Complaint, “‘however inartfully pleaded, must be
held to less stringent standards than formal pleadings
drafted by lawyers.'” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). “Courts must allow a pro
se complaint to go forward where the complaint is broad
and contains a ‘potentially cognizable claim' that
the plaintiff can later particularize, ” Peck v.
Merletti, 64 F.Supp.2d 599, 602 (E.D. Va. 1999).
Complaint is not entirely clear on his purported theory of
recovery. That is not surprising, since he is proceeding
pro se and is not trained in the intricacies of the
law. Even giving Plaintiff the generous latitude afforded to
pro se parties, I see no potential for the recovery
Plaintiff does not identify whether he is suing the parties
in their individual or official capacities, I will assume he
is attempting to sue them in both. Accordingly, I will
address his potential theories of recovery in turn.
Suits against Gravely and Ziglar in their ...