United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Aundrea
Claughton's (“Claughton”) Motion to Dismiss
[ECF No. 157] and Defendant Todd Moser's
(“Moser”) Motion to Dismiss [ECF No. 159]. The
matter was fully briefed by the parties, and I heard oral
arguments on the motions on February 5, 2019. After
considering the allegations in the Amended Complaint and the
arguments of the parties, this matter is now ripe for
disposition. For the reasons stated herein, I will deny both
STATEMENT OF FACTS AND PROCEDURAL
facts are adequately recounted in my opinion on the Motions
to Dismiss Plaintiff's Complaint. (Mem. Op. pgs. 1-6,
June 6, 2018 [ECF No. 40].)
my opinion granting in part Defendant Moser's original
Motion to Dismiss and denying Claughton's original Motion
to Dismiss, Plaintiff filed an Amended Complaint, asserting
the following causes of action: violation of Plaintiff's
First Amendment rights against Moser and Claughton, in
violation of 42 U.S.C. § 1983 (Count 1); conspiracy to
violate Plaintiff's First Amendment rights against Moser,
Claughton, and the defaulted defendants, Nicholas Jones
(“Jones”) and Dre Tucker (“Tucker”),
in violation of 42 U.S.C. § 1983 (Count 2); violation of
Plaintiff's Fourth Amendment rights by Claughton and
Moser, in violation of 42 U.S.C. § 1983 (Count 3);
conspiracy to violate Plaintiff's Fourth Amendment rights
by Claughton, Moser, Jones, and Tucker, in violation of 42
U.S.C. § 1983 (Count 4); state law malicious prosecution
by Claughton and Moser (Count 5); state law conspiracy by
Claughton, Moser, Jones, and Tucker (Count 6); state law
defamation against Moser (Count 7); and a state law fighting
words claim against Moser (Count 8). Defendants Claughton and
Moser filed motions to dismiss on December 21. Plaintiff
filed briefs in opposition on January 2, 2019 [ECF Nos. 169
& 170], and Defendants Claughton and Moser filed a joint
reply on January 9 [ECF No. 172]. Following oral argument on
February 5, the matter is now ripe for disposition.
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.
Motions to Dismiss will be addressed in turn, as will the
various arguments to dismiss certain counts of the Complaint.
Claughton's Motion to Dismiss
Counts 2, 4, and 6
contends that the facts, as pleaded, insufficiently state a
claim for conspiracy to violate Plaintiffs'
order to state a claim for civil conspiracy under §
1983, Plaintiff must allege that Defendants “acted
jointly in concert and that some overt act was done in
furtherance of the conspiracy which resulted in . . .
deprivation of a constitutional right . . . .”
Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416,
421 (4th Cir. 1996) (citing Hafner v. Brown, 983
F.2d 570, 577 (4th Cir. 1992)). “In other words,
[Plaintiff] must at least be able to show a deprivation of a
constitutional right as a result of the alleged conspiracy.
This is because ‘[t]he gist of the cause of action is
the deprivation and not the conspiracy.'”
Shooting Point, LLC v. Cumming, 243 F.Supp. 2d, 536,
537 (E.D. Va. 2003) (quoting Lesser v. Braniff Airways,
Inc., 518 F.2d 538, 540 n.2 (7th Cir. 1975)). While
§ 1983 conspiracy claims are typically brought only
against state actors, “a § 1983 claim may be
proved by showing that a person acting under color of law
collaborated or conspired with a private person to deprive
the plaintiff of a constitutional right.” Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2nd Cir. 1995)
(internal alterations and citations omitted).
Plaintiff has adequately alleged facts that, if proven, would
establish a conspiracy to violate her constitutional rights.
She alleges that Claughton, after learning of Plaintiff's
displeasure with his performance of his duties, and her
intentions to voice her complaints to the “highest
possible authority, ” communicated
extensively with Moser over the next several hours.
(Am. Compl. ¶ 53.) Following those conversations, which
Plaintiff alleges were the beginning of the conspiracy to
violate her rights, Claughton called Jones and Tucker and
asked them to come in and draft unsworn statements for
presentation to a magistrate. According to Jones, Claughton
told him that the statements were necessary because “it
got too deep, ” and that Claughton needed Jones to make
a statement because Plaintiff “had went over top of him
[to] try to get him fired or something.” (Id.
¶ 66.) Plaintiff further alleges that, at
Claughton's direction, Jones and Tucker both prepared
“untrue and unsworn” declarations which formed