United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, Senior United States District Judge
Antwyan Wesley, a Virginia inmate proceeding pro se, filed
this civil rights action under 42 U.S.C. § 1983,
alleging that the defendant police officer failed to protect
Wesley when jail officials used excessive force against him.
The defendant, Connor Malloy, has filed a motion to dismiss.
Wesley responded by filing a second amended complaint, to
which the defendant objects. After review of the record, the
court concludes that the motion to amend is appropriately
granted, and the motion to dismiss must be denied.
15(a)(1) of the Federal Rules of Civil Procedure provides
that a party may amend its pleading once as a matter of
course within 21 days after it is served or within 21 days
after a motion to dismiss is filed. Wesley filed his first
amended complaint, in response to a court order, before the
case was served on the defendant. He filed the second amended
complaint within 21 days after the defendant's motion to
dismiss. Accordingly, the court finds the amendment proper
under Rule 15(a). Furthermore, for reasons stated herein,
the court cannot find that the proposed amendment is futile.
second amended complaint, Wesley alleges that on February 8,
2018, Malloy arrested Wesley pursuant to a capias.
During a routine body search, Malloy and other officers found
no illegal contraband on Wesley's person. Malloy then
transported Wesley to the Northwestern Virginia Regional Jail
("jail"). In the sally port, jail officials
conducted a second body search of Wesley's person. Malloy
"interrupted the search by stepping fo[r]ward
unravelling his fist which contained an amount of marijuan[a]
stating 'This will be a felony.'" Sec. Am.
Compl. 3, ECF No. 21. Wesley responded, "That's not
mine, you just planted that." Id.
[J]ail officials then began assaulting [Wesley] while
screaming stop resisting (which [Wesley] claims he was not)
with Officer Connor Malloy still present. Plaintiff Wesley
was then dragged to restraining [sic] chair where he was
placed for an unknown amount of time. Eventually a [jail
official] had him released and stated directly to plaintiff
Wesley he couldn't and wouldn't be charged with a
felony drug charge.
Id. Wesley sues Malloy under § 1983 for
monetary damages, contending that (1) Malloy
"intentionally and cruel[l]y planted drugs on [Wesley] .
. . provokingly stating felony charges would be filed,"
and (2) Malloy failed to protect Wesley when jail officials
assaulted him. Id. at 1-2.
survive a motion to dismiss [under Rule 12(b)(6) of the
Federal Rules of Civil Procedure], 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). The court must
"accept as true all well-pleaded allegations and view
the complaint in the light most favorable to the
plaintiff." Venkatraman v. REI Svs., Inc.. 417
F.3d 418, 420 (4th Cir. 2005). Section 1983 permits an
aggrieved party to file a civil action against a person for
actions taken under color of state law that violated his
constitutional rights. See Cooper v. Sheehan. 735
F.3d 153, 158 (4th Cir. 2013). When a plaintiff raises a
civil rights issue and files a complaint pro se, the court
must liberally construe his pleadings. See Smith v.
Smith. 589 F.3d 736, 738 (4th Cir. 2009) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)
(reversing dismissal of civil rights complaint upon finding
that pro se plaintiffs allegations, "however inartfully
pleaded, are sufficient to call for the opportunity to offer
court will grant the motion as to Wesley's § 1983
claim that Malloy threatened to have him charged with a
felony drug crime. As Wesley's submissions indicate that
no such charge was filed, Malloy's alleged comment was
nothing more than an empty threat. Allegations that an
officer verbally harassed or threatened the plaintiff,
without more, do not state any constitutional claim. See
Henslee v. Lewis. 153 Fed.Appx. 178, 180 (4th Cir.
2005) (citing Collins v. Cundv. 603 F.2d 825, 827
(10th Cir. 1979)); Morrison v. Martin. 755 F.Supp.
683, 687 (E.D. N.C. ) ("Words by themselves do not state
a constitutional claim, without regard to their
nature."). Moreover, the amended complaint does not
support a reasonable inference that Malloy's words alone
triggered the jail officials' alleged use of excessive
force against Wesley. Accordingly, the court cannot find that
Wesley's allegations give rise to any actionable §
1983 claim related to his drug felony threat, and therefore,
will grant the defendant's motion as to this claim.
the court must deny the motion to dismiss as to Wesley's
failure to protect claim. "[T]he Due Process Clause of
the Fourteenth Amendment protects a pretrial detainee from
the use of excessive force that amounts to punishment, and is
not an incident of some other legitimate governmental
purpose." Duffy. Potter. 665 Fed.Appx. 242, 244
(4th Cir. 2016). To prevail in an excessive force claim, a
pretrial detainee must show "that the force purposely or
knowingly used against him was objectively
unreasonable." Id. The court must make this
determination by considering the evidence "from the
perspective of a reasonable officer on the scene, including
what the officer knew at the time, not with the 20/20 vision
of hindsight." Id.
concept of bystander liability is premised on a law
officer's duty to uphold the law and protect the public
from illegal acts, regardless of who commits them."
Randall v. Prince George's County. MD.. 302 F.3d
188, 203 (4th Cir. 2002). Thus, if an officer witnesses
another officer's "illegal act" and
"possesses the power to prevent it, [but] chooses not to
act, he may be deemed an accomplice and treated accordingly.
Id. (citing O'Neill v. Krzeminski. 839
F.2d 9, 11-12 (2d Cir. 1988) (observing that officer who
stands by and does not seek to assist victim could be
Wesley's allegations as true, the court concludes that
they support reasonable inferences that he was not resisting
or posing a threat; that the jail officials' intentional
use of force against him was objectively unreasonable under
the circumstances; that Malloy was confronted with the jail
officials' wrongful conduct; that he had a reasonable
opportunity to intervene to prevent further unreasonable
force; and that he chose not to act to protect Wesley.
Because the second amended complaint thus states a prima
facie claim of bystander liability against Wesley, the
court will deny the motion to dismiss. An ...