United States District Court, W.D. Virginia, Big Stone Gap Division
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for
Keuling-Stout, Keuling-Stout, P.C., Big Stone Gap, Virginia,
OPINION AND ORDER
P. Jones, United States District Judge
action for violation of civil rights under 42 U.S.C. §
1983, the plaintiff, a middle school student, alleges that
the defendant, a deputy sheriff and resource officer at the
plaintiff's school, violated his rights under the Fourth
Amendment. The plaintiff contends that the defendant
unlawfully seized his person and seized and searched his cell
phone, and the defendant used excessive force in doing so.
The defendant has moved to dismiss the Complaint and for
summary judgment. For the reasons that follow, I will deny
the defendant's motions.
Complaint alleges the following facts, which I must accept as
true for the purpose of deciding the Motion to
April 17, 2018, while Z.F., a 14-year-old student at L. F.
Addington Middle School in Wise County, Virginia, was eating
lunch in the school cafeteria, Ryan Adkins, a Deputy Sheriff
with the Wise County Sheriff's Department and a Resource
Officer at the middle school, approached Z.F. and demanded
that he give his cell phone to Deputy Adkins. Z.F. had been
conducting himself in an orderly manner when Deputy Adkins
approached him. Z.F. asked why Deputy Adkins wanted his cell
phone, but Deputy Adkins would not tell him and repeated his
demand. Deputy Adkins told Z.F. to stand, took him by his
arm, and escorted him across the cafeteria and into the
hallway outside the cafeteria. Z.F. alleges that he was
removed from the cafeteria involuntarily and in the presence
of his classmates, which caused him great embarrassment.
School administrators were also standing nearby and observed
hallway, Deputy Adkins again demanded that Z.F. give his cell
phone to him. Z.F. asked Deputy Adkins to explain why he
needed the phone, but Deputy Adkins refused. Z.F.'s
father had instructed him that in the event of an encounter
with law enforcement in which he did not know how to respond,
he should contact him, so Z.F. told Deputy Adkins that he was
going to call his father. Z.F. turned away from Deputy Adkins
and began dialing his father's phone number, but Deputy
Adkins tackled Z.F. and threw him to the ground, lying on top
of Z.F. to restrain him while he forcibly took his cell
phone. The school administrators had followed Z.F. and Deputy
Adkins into the hallway and observed these events.
was then taken to an office, where he alleges he was held
against his will and not allowed to attend his classes or
leave the school. Deputy Adkins searched the contents of
Z.F.'s cell phone but did not find anything illegal. Z.F.
and the cell phone were later released to Z.F.'s parents.
alleges that Deputy Adkins' seizure of his person in the
cafeteria and again in the corridor, along with his seizure
and search of Z.F.'s cell phone, were without probable
cause and were done intentionally and maliciously in
violation of the Fourth Amendment. He also alleges that
Deputy Adkins intentionally and maliciously used excessive
force against him in violation of the Fourth Amendment when
he tackled him to the ground. Z.F. alleges that as a result
of Deputy Adkins' actions, he suffered physical injuries,
including an injury to his back that required medical care;
emotional injuries, including emotional trauma that has
required counseling; and embarrassment. He has brought this
action for damages pursuant to 42 U.S.C. § 1983. Deputy
Adkins has filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) and for Summary Judgment. The
motions have been fully briefed and are ripe for
pleading standards require that a complaint contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). In order to survive a motion to dismiss, the
complaint must “state a plausible claim for
relief” that “permit[s] the court to infer more
than the mere possibility of misconduct” based upon its
“judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In
evaluating a pleading, the court accepts as true all
well-pled facts and construes those facts in the light most
favorable to the plaintiff. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
order to prevail on a motion to dismiss a complaint alleging
a violation of 42 U.S.C. § 1983, “a defendant must
satisfy the trial court that there is no set of facts which
will support an allegation that he or it (1) acted under
color of state law, and (2) deprived plaintiff of a right
secured by the Constitution and laws.” Dist. 28,
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