United States District Court, W.D. Virginia, Abingdon Division
Timothy W. Hudson, Bristol, Tennessee, for Plaintiff
M. Hoffman and Rebecca L. Dannenberg, Franklin &
Prokopik, P.C., Herndon, Virginia, for Defendant Cabela's
Wholesale, Inc. d/b/a Cabela's; Jennifer D. Royer, Royer
Law Firm, P.C., Roanoke, Virginia, for Defendants Wendy
Brewer and Patricia Eller.
OPINION AND ORDER
P. Jones United States District Judge
plaintiff in this civil case claims that while visiting a
local retail store, two police officers, working off duty as
the store's security guards, falsely accused him of
shoplifting, arrested and handcuffed him, and even though he
did not resist, tased him several times, only finally
releasing him after they could find no merchandise on his
person or after a search of his vehicle, and the store's
surveillance video footage exonerated him. The plaintiff sues
the two officers and the retail store's owner seeking
compensation for his physical pain and mental anguish
resulting from the events, as well as for punitive damages.
All three defendants have moved to dismiss the claims against
them. For the reasons that follow, I will grant the motions
to dismiss as to the plaintiff's trespass claim and a
portion of his constitutional claim against one of the
officers, but will deny the motions to dismiss in all other
plaintiff's Second Amended Complaint alleges the
following facts, which I must accept as true at the present
time for the sole purpose of deciding the motions to
Patricia Eller and Wendy Brewer are sergeants with the
Bristol, Virginia, Police Department (“BVPD”) and
worked while off duty as security guards for defendant
Cabela's Wholesale, Inc. (“Cabela's”),
the owner of a retail sporting goods store in Bristol,
Virginia. While working at Cabela's, they wore their BVPD
uniforms and carried BVPD-issued badges, firearms, handcuffs,
2017 Thanksgiving holiday shopping day known as Black Friday,
Eller and Brewer were working at Cabela's and the
plaintiff, Chris Blevins, was shopping with his girlfriend.
It was a cold day, and Blevins wore a jacket and vest. He was
carrying vehicle keys, a cell phone, a pack of cigarettes,
and his wallet.
entering Cabela's, Blevins and his girlfriend looked at
hooded sweatshirts at the front of the store, then went to
the back of the store and, with the help of a sales
associate, obtained a pair of children's snow boots and
placed them in their shopping cart. They joined the long line
for the cashiers. While his girlfriend waited in line,
Blevins went to the water fountain and then stepped outside
to see if the coffee and doughnuts Cabela's had been
offering to customers were still available. Seeing that there
were no more refreshments outside the store, Blevins came
back inside and used the water fountain again. He then
proceeded to the firearms area of the store to look for
shells for his son's small shotgun.
noticed a partially packaged display model of a tripod. While
a customer couple was handling the display model, the legs
that were protruding from the packaging fell off. Blevins and
the other customer remarked that the tripod was cheaply made.
Blevins picked up the tripod and tried to reattach the legs,
but he was unable to do so and left it. He then noticed that
Eller was standing near him and watching him. He greeted her
and she responded that she was just doing her job.
walked away from the tripod display and noticed a backpack
that was on sale. He picked it up but decided not to buy it
and put it down. He went to the customer service desk to ask
where a particular kind of ammunition was located. He
recognized the associate at the desk as a former coworker.
The associate led him to the ammunition. Blevins noticed that
Brewer had been following him.
picked up the shells he wanted to purchase and rejoined his
girlfriend in the checkout line. He used his cell phone to
research whether the shells cost less at another retailer.
They did, so he removed the shells from the cart and set them
aside. He again noticed that Eller and Brewer were watching
him. He removed his jacket and vest from the cart and put
them back on. He gave his girlfriend some money and a coupon
to purchase the snow boots.
plainclothes asset protection employee, Eric Turner, was
standing with Eller and Brewer. Eller told Turner and Brewer
that she thought she had seen Blevins conceal ammunition.
Turner asked his boss, Brad Mullins, to come to the checkout
area because he, Brewer, and Eller had decided to detain
his girlfriend completed their purchase, Blevins walked to
the front of the store to return their shopping cart. He
stepped outside the store, and Eller, Brewer, and Turner
followed him. Eller grabbed his arm from behind, told him he
was under arrest for shoplifting, and instructed him to put
both hands behind his back. Blevins jerked his left arm back,
looked over his shoulder to see who had grabbed him, and
stated he had not shoplifted. He told the officers to look at
the surveillance video. He did not flee or indicate that he
was going to flee. Brewer told Blevins that he was going to
be tased, and she tased him using the Taser's
“drive-stun” mode while she and Eller took him to
the ground. The Taser, when used in this mode, is designed to
inflict pain. Blevins was tased at least once more while on
the ground and was then handcuffed so tightly that his wrists
were injured. The shocks left lesions on his back. Eller told
Blevins she did not need to look at the surveillance footage
because she saw him shoplift.
officers then searched Blevins and found no store merchandise
on his person. Mullins arrived and Blevins asked him to
review the surveillance footage. Mullins said he would, but
he did not instruct the officers to release Blevins while he
did so. Brewer told Blevins and his girlfriend that she had
seen Blevins exit the store and go to his vehicle multiple
times, which was not true. According to Blevins, Brewer made
this statement so that he would consent to a search of his
vehicle, hoping that the officers might find something in the
car to justify his arrest. Blevins told the officers that he
had not returned to his vehicle since he arrived at
officers asked where the vehicle was parked and insisted that
they be allowed to search it. Brewer had the car keys in her
possession and refused to return them to Blevins or his
girlfriend. Blevins and his girlfriend gave consent to the
search request with the hope that the officers would return
the car keys, remove Blevins' handcuffs, and allow them
to leave. Brewer thoroughly searched the vehicle and found no
store merchandise or other contraband.
called Brewer to tell her that the surveillance footage
showed that Blevins had not shoplifted. He instructed her to
release Blevins but to inform him that he was banned from
Cabela's. A police transport vehicle arrived on the
scene, but Brewer sent it away. One of the officers
apologized to Blevins, but the other told him he could not
return to Cabela's due to his behavior. They then
persistently asked him to acknowledge that they had not done
anything wrong. He so acknowledged, but only to get them to
remove the handcuffs. He was then released and allowed to
Eller, and Turner were required by Cabela's to complete
statement forms, which they did. Brewer and Turner omitted
from their statements that the plaintiff had been tased and
his vehicle had been searched. Brewer and Eller wrote that
they decided to detain Blevins because Eller saw him conceal
an item in his jacket pocket while in the check-out lane. A
local newspaper quoted Mullins as stating that Blevins had
done nothing wrong and that Mullins had seen nothing
and Eller were privately hired by and paid by Cabela's
for the work shift during which this incident occurred. There
was no extra-duty or off-duty employment agreement between
Cabela's and the City of Bristol. The officers were
subject to the instruction, management, and control of
Cabela's. “They followed the orders of Cabela's
as to whether or not to detain suspected shoplifters,
continue detention, and were given the authority to ban a
customer from the store if directed by management.”
Second Am. Compl. 13, ECF No. 8. “The City of Bristol
Virginia did not adopt an ordinance, as permitted by Code of
Virginia §15.2-1712, which would permit off-duty police
officers to accept private employment for the performance of
official duties.” Id. at 14.
Brewer nor Eller initially filed a police incident report
with the BVPD. Brewer did not file the required use-of-force
report regarding the use of her Taser on Blevins. The
newspaper quoted BVPD Lieutenant Charles Robinette as stating
that the BVPD had no knowledge of the incident or use of the
Taser until it was reported in the newspaper. The article
also reported that Robinette stated that there are generally
repercussions for failure to file the required reports. BVPD
has launched an internal investigation into the incident.
supervisors ordered Eller and Brewer to file the required
reports after this lawsuit was filed. Brewer wrote that she
twice tased Blevins to coerce compliance with her commands to
show his hands. She checked a box indicating that Blevins had
been under the influence of alcohol or drugs.
on these factual allegations, Blevins asserts the following
1. Count I: False Imprisonment/Wrongful Detention against all
2. Count II: Assault and Battery/Excessive Use of Force
against all defendants;
3. Count III: Defamation against Brewer and Eller;
4. Count IV: Trespass against all defendants; and 5. Count V:
42 U.S.C. § 1983 claims against Brewer and Eller based
on alleged violations of the Fourth and Fourteenth
pending Motions to Dismiss have been fully briefed and are
ripe for decision.
and Eller have jointly filed two separate motions to dismiss,
one pursuant to Federal Rule of Civil Procedure 12(b)(1),
asserting the bar of qualified immunity, and one pursuant to
Federal Rule of Civil Procedure 12(b)(6), contending that the
Second Amended Complaint fails to state any viable claim
against them. In support of their Rule 12(b)(1) motion, they
cite several non-controlling cases in which courts appear to
have considered the issue of qualified immunity as a
challenge to subject-matter jurisdiction, and they urge me to
do the same here. See, e.g., Herring v. Cent.
State Hosp., No. 3:14-cv-738-JAG, 2015 WL 4624563, at *1
(E.D. Va. July 29, 2015); Dance v. City of Richmond
Police Dep't, No. 3:09-CV-423-HEH, 2009 WL 2877152,
at *2 (E.D. Va. Sept. 2, 2009). However, as Brewer and Eller
acknowledge, I have previously held that qualified immunity
is not a jurisdictional issue and should instead be
considered under Rule 12(b)(6). Fletcher v. Brown,
No. 2:15CV00015, 2016 WL 1179226, at *2 n.1 (W.D. Va. Mar.
24, 2016). Qualified immunity is an affirmative defense.
Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir.
2016). I again conclude that Rule 12(b)(6) is a more
appropriate vehicle for addressing a claim of qualified
immunity, and I will therefore treat the Motion to Dismiss
Pursuant to Rule 12(b)(1) as a motion to dismiss for failure
to state a claim under Rule 12(b)(6).
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint. . . .” Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Rule
12(b)(6) does “not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[I]t does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992). In ruling on a motion to dismiss, the
court must regard as true all of the factual allegations
contained in the complaint, Erickson v. Pardus, 551
U.S. 89, 94 (2007), and must view those facts in the light
most favorable to the plaintiff, Christopher v.
Harbury, 536 U.S. 403, 406 (2002). I will apply this
standard to all of the motions to dismiss presently before
§ 1983: State Action.
and Brewer contend that the plaintiff has not alleged that
they were acting under color of state law during the
incident, as required for a claim under § 1983. They
point to the plaintiff's allegations that they were
employees of Cabela's and were subject to the
“instruction, management, and control” of
Cabela's. Second Am. Compl. ¶ 8, ECF No. 8.
§ 1983 claim requires proof of the following three
elements: “(1) the deprivation of a right secured by
the Constitution or a federal statute; (2) by a person; (3)
acting under color of state law.” Jenkins v.
Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997). In
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the
Supreme Court set forth the general framework for determining
whether a party is acting under color of state law for
purposes of § 1983:
First, the deprivation must be caused by the exercise of some
right or privilege created by the State or by a rule of
conduct imposed by the State or by a person for whom the
State is responsible. . . . Second, the party charged with
the deprivation must be a person who may fairly be said to be
a state actor. This may be because he is a state official,
because he has acted together with or has obtained
significant aid from state officials, or because his conduct
is otherwise chargeable to the State.
Id. at 937.
Griffin v. Maryland, 378 U.S. 130 (1964), the Court
considered whether a sheriff's deputy working as a
private security guard at an amusement park was a state
actor. The deputy arrested two black men for trespassing
because the park was segregated and did not allow black
people, and the two men refused to leave when directed ...