United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
case is before the Court on Defendants' motions to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). Plaintiff Robert Sanchez Turner
(“Turner”) alleges several claims for damages
sustained at the August 12, 2017 “Unite the
Right” rally. These claims are asserted against
Defendants Al Thomas Jr. (“Thomas”), former Chief
of the Charlottesville Police Department; W. Stephen Flaherty
(“Flaherty”), Virginia State Police
Superintendent; and the City of Charlottesville
(“Charlottesville”). Plaintiff's claims share
a common question: whether there is constitutional duty under
the Fourteenth Amendment for the police to intervene to
protect a citizen from criminal conduct by third parties.
Because I find this duty is not “clearly established,
” his claims are barred by qualified immunity.
Therefore, although Defendant Flaherty's jurisdictional
argument under Rule 12(b)(1) fails, Defendants' motions
to dismiss pursuant to Rule 12(b)(6) will be granted.
Standard of Review
bring motions pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). A motion to dismiss under Rule
12(b)(1) challenges the Court's subject matter
jurisdiction. The burden of proving subject matter
jurisdiction rests upon the plaintiff. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Thus, a court
must dismiss a complaint which fails to allege facts that
demonstrate subject matter jurisdiction. Id.
ruling on a 12(b)(6) motion, a court must accept as true all
of the factual allegations contained in the complaint and
draw all reasonable inferences in favor of the
plaintiff.” Kensington Volunteer Fire Dep't,
Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th
Cir. 2012); see also Erickson v. Pardus, 551 U.S.
89, 94 (2007). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted). Stated
differently, in order to survive a 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
Twombly, 550 U.S. at 570).
Facts as Alleged
Charlottesville, Virginia, a statue of Confederate General
Robert E. Lee stands in what was formerly called “Lee
Park.” (Compl. ¶¶ 6-8). In June 2017,
Defendant Charlottesville changed the park's name to
“Emancipation Park, ” (“the Park”)
and subsequently planned to sell the statue and have it
removed. (Id. ¶ 7-8). In response, Jason
Kessler, leader of the group “Unity & Security for
America, ” organized the “Unite the Right”
rally to protest the Park's name change and the decision
to sell the statute. (Id. ¶ 10-11).
applied for, and was granted, a permit to hold a “free
speech rally in support of the Lee monument” by the
City. (Id. ¶ 12). Less than a week before the
event, the City revoked Kessler's permit, citing traffic
and safety concerns. (Id. ¶¶ 15-16, 21,
29). Allegedly, Kessler was initially promised that security
measures would nevertheless remain in place for the revoked
event. However, he was later informed that Defendant Thomas,
as Chief of Police, allegedly “changed his mind”
and would not provide any of the initially promised
protections. (Id. ¶ 30).
then brought suit, challenging the permit's revocation on
First and Fourteenth Amendment grounds, seeking injunctive
relief. (Id. ¶ 32). U.S. District Judge Glen
Conrad granted Kessler's request and reinstated the
permit. Kessler v. Cty. of Charlottesville,
Virginia, No. 3:17CV00056, 2017 WL 3474071 (W.D. Va.
Aug. 11, 2017). Turner alleges that in response to Judge
Conrad's ruling, Defendants Thomas and Flaherty became
“enraged, ” and instituted a “special
policy” for the protest, “ordering [their]
officers to ‘stand down' . . . .”
(Id. ¶¶ 40-41, 44). This alleged
“stand down” order mandated law enforcement to:
“refrain from intervening in any violent confrontations
between white supremacists and counter-protesters unless
given a command to do so.” (Id. ¶¶
44-46). Turner alleges law enforcement followed this
“stand down” order and even directly told
counter-protesters they would “not intervene unless
given a command to do so.” (Id. ¶¶
alleged that on August 12, 2017, Turner went to the Park as a
counter-protestor. (Id. ¶¶ 9-10, 52-53).
As he allegedly protested peacefully on the sidewalk adjacent
to the Park, “KKK members/sympathizers” exited
the Park and began “to engage counter protesters who
were on the sidewalk.” (Id. ¶ 57). Police
allegedly looked on as protesters, unprovoked, sprayed Turner
in his eyes with mace, subsequently beat him with a stick,
and threw bottles of urine at him. (Id. ¶¶
54-55, 59, 64). He alleges that “Charlottesville Police
and Virginia State Patrol officers stood and watched [this]
for more than thirty seconds, while doing nothing to
intervene.” (Id. ¶¶ 58,
now asserts several claims against Defendants premised on
what is known as a “state-created danger” theory
of liability. See generally DeShaney v. Winnebago Cty.
Dep't of Soc. Servs., 489 U.S. 189 (1989). Turner
alleges Defendants Thomas and Flaherty, in their individual
capacities, violated his substantive due process rights by
failing to intervene in a state-created danger, under both
direct (Count I) and supervisory (Count II) theories of
liability. He also alleges Defendants acted with
“deliberate indifference” towards his assault
(Count IV) in violation of the Fourteenth Amendment. Lastly,
he alleges that municipal liability extends to Defendant
Charlottesville for violating his substantive due process
rights (Count III). See generally Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658 (1978).
Turner also seeks punitive damages (Count V) and
attorney's fees (Count VI).
Subject Matter Jurisdiction
Flaherty, as superintendent of the Virginia State Police,
contends sovereign immunity bars the claims against him.
Specifically, he argues the Court lacks subject matter
jurisdiction over the supervisory liability claim, since it
was alleged against him in his official capacity. (Dkt. 27 at
suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit
against the official's office. As such, it is no
different from a suit against the State itself.”
Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989) (citation omitted). Section 1983 “does
not provide a federal forum for litigants who seek a remedy
against a State for alleged deprivations of civil liberties.
The Eleventh Amendment bars such suits . . . .”
Id. at 66. See also Seminole Tribe of Fla. v.
Fla., 517 U.S. 44, 64 (1996) (“[T]he Eleventh
Amendment [stands] for the constitutional principle that
state sovereign immunity limit[s] the federal courts'
jurisdiction under Article III.”). Unlike official
capacity suits, suits brought against defendants in their
individual capacities do not implicate sovereign immunity, as
they “seek to impose personal liability upon a
government official for actions he takes under color of state
law.” Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (emphasis added).
Turner specifically alleges in his Complaint that each claim
is against Defendants Thomas and Flaherty in their
“individual capacities.” (Dkt. 1 at ECF 26-30).
This express pleading is conclusive as to the capacity of
Plaintiff's claims. Biggs v. Meadows, 66 F.3d
56, 61 (4th Cir. 1995) (holding that capacity can only be
determined by the court when not specifically alleged in the
complaint). Since the claims are against Defendants in their
individual-and not official-capacities, Eleventh Amendment
immunity is not implicated, and the Court has subject matter
jurisdiction. Therefore, Defendant Flaherty's motion to
dismiss under 12(b)(1) will be denied.
individual Defendants argue they are entitled to qualified
immunity, a doctrine that protects government officials from
damages lawsuits when their actions did not violate clearly
established law. Turner alleges Defendants Thomas and
Flaherty deprived him of substantive due process under the
Fourteenth Amendment by issuing “stand down”
orders to their officers. These preemptive orders, he argues,
resulted in law enforcement's failure to intervene to
protect him from injuries at the hands of third party
criminal actors, advancing what is known as a
“state-created danger” theory of liability.
determining whether a claim is barred by qualified immunity,
the Court must “decide whether the right at issue was
‘clearly established' at the time of
defendant's alleged misconduct.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009). In conducting the
clearly established analysis, courts “first examine . .
. decisions of the Supreme Court, [the Court of Appeals for
the Fourth Circuit], and [the Supreme Court of Virginia]. We
ordinarily need not look any further than decisions from
these courts.” Booker v. S.C. Dep't of
Corr., 855 F.3d 533, 538-39 (4th Cir. 2017) (citations
and quotation marks omitted). In determining whether a right
is clearly established, it is not required that a case be
directly on point. Mullenix v. Luna, 136 S.Ct. 305,
308 (2015). Rather “existing precedent must have placed
the statutory or constitutional question beyond
debate.” Id. Such “clearly
established” rights should not be defined “at a
high level of generality, ” but “must be
‘particularized' to the facts of the case.”
White v. Pauly, 137 S.Ct. 548, 552 (2017).
“The dispositive question is ‘whether the
violative nature of particular conduct is clearly
established.'” Mullenix, 136 S.Ct. at 308
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011)) (emphasis in original); see also Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (holding defendants
“can still be on notice that their conduct violates
established law even in novel factual circumstances, ”
so long as the law provided “fair warning” that
their conduct was unconstitutional).
each claim will be analyzed to determine whether it is
supported by a clearly established constitutional right. I
find that they are not, and hold that Plaintiff's claims