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 the Commonwealth of
Virginia; two officers with the Albemarle County Police
Department, R. Scopelliti and S. 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 m 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 28U.S.C. §
following facts are taken from the complaint and public
records of state court proceedings related to the case.
See Philips v. Pitt Cty. Mem. Hosp., 572
F.3d 176, 180 (4th Cir. 2009) (noting that courts "may
properly take judicial notice of matters of public
record" when reviewing a complaint).
26, 2013, Patricia and Tarsha were involved in a two-vehicle
accident in Albemarle County. The plaintiffs' vehicle
rear-ended a vehicle operated by Paul Welch. Tarsha claimed
to own the plaintiffs' vehicle and gave Welch her
information. The plaintiffs then returned to their vehicle
and drove away.
Scopelliti subsequently responded to the scene of the
accident and spoke to Welch. Scopelliti relayed the
information provided by Welch to a dispatcher. Officer Miller
heard the dispatch and located the plaintiffs' vehicle in
the parking lot of an apartment complex. Miller spoke to the
plaintiffs and checked the status of their drivers'
licenses. Miller then relayed the information he obtained to
obtained warrants of arrest against Patricia and Tarsha for
operating a motor vehicle while on a suspended license, third
or subsequent offense, in violation of Virginia Code §
46.2-301. Patricia and Tarsha were tried together by the
Albemarle County General District Court on October 8, 2013.
The Commonwealth's evidence indicated that Patricia was
driving the plaintiffs' vehicle at the time of the
accident and that Tarsha drove the vehicle away from the
scene. In defense of the charges, Patricia and Tarsha both
denied driving when they testified on direct examination. The
general district court discredited their testimony and found
them guilty of the offenses with which they were charged.
Patricia and Tarsha appealed their convictions to the
Albemarle County Circuit Court. At some point thereafter,
they were both indicted for perjury based on their testimony
before the general district court.
and Tarsha were tried together by the circuit court on the
charges of perjury and driving while on a suspended license.
On November 19, 2015, the circuit court found Patricia and
Tarsha guilty of both charges. Their convictions were
affirmed by the Supreme Court of Virginia on May 31, 2018.
See Gerald v. Commonwealth. 813 S.E.2d 722 (Va.
and Tarsha filed a form complaint in the Eastern District of
Virginia on January 18, 2019. On April 15, 2019, a judge in
that district transferred the case to the Western District of
Virginia after concluding that venue was improper there.
form complaint, the plaintiffs allege that Scopelliti and
Miller provided false testimony at trial, and that Lowe, who
prosecuted the cases for the Commonwealth, and Judge Higgins,
the presiding circuit court judge, knew or should have known
that the officers' testimony was false. The plaintiffs
indicate that they are now suing for violations of their
rights under the Sixth and Fourteenth Amendments to the
United States Constitution. They seek to recover damages in
the amount of $75, 000.
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. 572 F.3d at 180. To survive dismissal for
failure to state a claim, a complaint must contain sufficient
factual allegations "to raise a right to relief above