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Blevins v. Cabela's Wholesale, Inc.

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

May 11, 2018


          Timothy W. Hudson, Bristol, Tennessee, for Plaintiff

          Joshua 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.


          James P. Jones United States District Judge

         The 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 respects.


         The 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 dismiss.[1]

         Defendants 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, and Tasers.

         On the 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.

         Upon 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.

         He 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.

         Blevins 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.

         Blevins 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.

         A 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 Blevins.

         While 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.

         The 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 Cabela's.

         The 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.

         Mullins 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 leave.

         Brewer, 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 suspicious.

         Brewer 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.

         Neither 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.

         BVPD 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.

         Based on these factual allegations, Blevins asserts the following claims:

1. Count I: False Imprisonment/Wrongful Detention against all defendants;
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 Amendments.[2]

         The pending Motions to Dismiss have been fully briefed and are ripe for decision.[3]


         Brewer 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).

         “The 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 the court.

         A. § 1983: State Action.

         Eller 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.

         A § 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.

         In 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 ...

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