United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge.
Gerald ("Patricia") and her daughter, Tarsha Gerald
("Tarsha"), proceeding pro se, commenced this
action by filing a form complaint against two officers with
the Albemarle County Police Department, Ralph Scopelliti and
Scott Miller; Albemarle County Deputy Commonwealth's
Attorney Darby Lowe; and Albemarle County Circuit Court Judge
Cheryl Higgins. The plaintiffs have not paid the filing fee
but will be granted leave to proceed in forma
pauperis for purposes of initial review of their
complaint. For the following reasons, the court concludes
that the case must be dismissed for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii).
their complaint, which is difficult to follow, the plaintiffs
allege that Scopelliti prepared a police report on May 26,
2018, following a motor vehicle accident, which indicated
that Patricia had a driver's license.[*] However, Scopelliti
subsequently testified in court that Patricia "did not
have a license and had three driving on suspended."
Compl. 5, Docket No. 2. Scopelliti also testified that he
talked to Miller, who told him that Patricia and Tarsha
admitted to driving, "which isn't true."
Id. Likewise, Scopelliti testified that both of the
plaintiffs advised him that they had been driving the vehicle
involved in the accident. The plaintiffs allege that
Scopelliti's testimony was false, and that they never
talked to him or knew who he was until they were summonsed to
appear in court on charges of driving on a suspended license.
The plaintiffs further allege that they "never even
drove" the vehicle and instead allowed a friend to drive
it. Id. at 6.
plaintiffs claim that Scopelliti's testimony was relied
upon to convict them of driving on a suspended license. They
indicate that they are now suing for violations of their
rights under the Fifth and Sixth Amendments to the United
States Constitution. They seek to recover damages for
emotional distress, emphasizing that they "supplied] all
the evidence to [their] lawyer who never once brought it up
in court." Id. at 7.
28 U.S.C. § 1915(e), which governs in forma
pauperis proceedings, the court has a mandatory duty to
screen initial filings. Eriline Co. S.A. v. Johnson,
440 F.3d 648, 656-57 (4th Cir. 2006). The court must dismiss
a case "at any time" if the court determines that
the complaint "fails to state a claim on which relief
may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
standards for reviewing a complaint for dismissal under
§ 1915(e)(2)(B)(ii) are the same as those which apply
when a defendant moves for dismissal under Federal Rule of
Civil Procedure 12(b)(6). De'Lonta v. Angelone,
330 F.3d 630, 633 (4th Cir. 2003). Thus, in reviewing a
complaint under this statute, the court must accept all
well-pleaded factual allegations as true and view the
complaint in the light most favorable to the plaintiffs.
Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009). To survive dismissal for failure to state a
claim, a complaint must contain sufficient factual
allegations "to raise a right to relief above the
speculative level" and "to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007).
the plaintiffs characterize their action as one for
violations of their federal constitutional rights, the court
construes the complaint as being brought pursuant to 42
U.S.C. §1983. Section 1983 provides a cause of action
against any person who, under color of state law, causes the
deprivation of another person's rights under the
Constitution or laws of the United States. 42 U.S.C. §
1983. For the following reasons, the court concludes that the
plaintiffs' complaint fails to state a plausible claim
under § 1983 against any of the named defendants.
with respect to the plaintiffs' claim that Scopelliti
provided false testimony at trial, "such claim is
subject to dismissal because the Supreme Court has
specifically held that police officers are immune from an
action arising under § 1983 for alleged perjury."
Smith v. McCarthy, 349 Fed.Appx. 851, 858 n.10 (4th
Cir. 2009) (citing Briscoe v. LaHue, 460 U.S. 325,
242-43 (1983)). The court likewise concludes that Judge
Higgins and Darby Lowe, the Deputy Commonwealth's
Attorney who apparently prosecuted the plaintiffs, are immune
from liability. See Stump v. Sparkman, 435 U.S. 349,
355-56 (1978) (discussing judicial immunity); see also
Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir.
2000) (observing that "[a] prosecutor enjoys absolute
immunity for prosecutorial functions 'intimately
associated with the judicial phase of the criminal
process'") (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)).
the plaintiffs' complaint is devoid of any factual
allegations that would otherwise support a plausible
violation of the Fifth or Sixth Amendment. To the extent the
plaintiffs' complaint could be construed to assert a
claim for malicious prosecution under the Fourth Amendment,
such claim fails, among other reasons, because the plaintiffs
do not allege that the criminal proceedings ended in their
favor. See Evans v. Chalmers, 703 F.3d 636, 647 (4th
Cir. 2012) (explaining that "[a] malicious prosecution
claim under § 1983 is properly understood as a Fourth
Amendment claim for unreasonable seizure which incorporates
certain elements of the common law tort," and that one
of the required elements is that the "criminal
proceedings terminated in plaintiffs favor."). For the
same reason, the Supreme Court's decision in Heck v.
Humphrey, precludes any claim for damages that would
"necessarily imply the invalidity" of the
plaintiffs' convictions, 512 U.S. 477, 487 (1994);
see also Nelson v. Campbell, 541 U.S. 637, 646-47
(2004) (discussing Heck's "favorable
termination requirement"). Accordingly, the complaint
fails to state a claim on which relief may be granted.
reasons stated, the court will grant the plaintiffs'
motion for leave to proceed in forma pauperis.
However, their complaint will be dismissed without ...