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Belisle v. Baxter

United States District Court, E.D. Virginia, Richmond Division

May 16, 2019

FRANCES J. BELISLE, Plaintiff,
v.
LAURA BAXTER, et al, Defendants.

          MEMORANDUM OPINION

         This matter comes before the Court on two motions: (1) Defendants Laura Baxter, [1] Michael Whittington, and Lawrence Costello's (collectively with Baxter and Whittington, the "Officer Defendants") Motion to Dismiss (the "Officer Defendants' Motion to Dismiss"), (ECF No. 8); and, (2) Defendant Donald Kyles's Motion to Dismiss (the "Kyles's Motion to Dismiss"), (ECF No. 10). Plaintiffs Frances Belisle and Pierre Belisle[2] (collectively with Frances, "Plaintiffs") responded in a single filing to both the Officer Defendants' Motion to Dismiss and the Kyles's Motion to Dismiss. (ECF No. 12.) The Officer Defendants and Kyles replied. (ECFNos. 15, 16).

         The Court dispensed with oral argument because the materials before it adequately presented the facts and legal contentions, and argument would not aid the decisional process.

         The Court exercises jurisdiction over Plaintiffs' federal claims pursuant to 28 U.S.C. § 1331[3] and supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367.[4]

         L Factual Background[5]

         Plaintiffs bring this eight-count Complaint seeking both compensatory and punitive damages, pre-judgement and post-judgment interest, attorneys' fees, and costs, for events occurring in March and September 2017 that began when Frances interacted with members of the City of Hopewell Police Department (the "Hopewell PD") at a school function held at Hopewell High School. Frances interacted primarily with Baxter and Whittington and the exchange resulted in Frances's arrest for disorderly conduct.[6] Frances brings claims against both Baxter and Whittington.

         After Frances's trial for disorderly conduct in the City of Hopewell General District Court-Criminal Division (the "Hopewell General District Court"), Pierre had a separate interaction with Kyles, a school bus driver who testified against Frances at trial. This interaction led to Pierre's arrest for obstruction of justice.[7] Pierre brings claims against Kyles and Costello, the Hopewell PD officer who issued the warrant for Pierre's arrest. Frances also brings a claim against Kyles and Costello.

         A. Factual Background Pertaining to Frances's Allegations

         Baxter arrested Frances for disorderly conduct following an interaction between Frances and members of the Hopewell PD. The Hopewell General District Court later convicted Frances of this charge and she appealed her conviction to the City of Hopewell Circuit Court. Before Frances's trial on appeal, the Commonwealth Attorney dismissed the charge by nolle prosequi. Frances brings her six counts based on events that occurred between the time leading up to her arrest and the eventual dismissal of her charge.

         1. Allegations Leading to Frances's Arrest

         On March 25, 2017, Hopewell City Public Schools held an event at the Hopewell High School in which Plaintiffs' minor daughter participated. The Hopewell City Public School Board asked the Hopewell PD to assist with "the event to ensure the safety and welfare of the attending public." (Not. Removal Ex. A "Complaint" ¶ 13, ECF No. 1-1.) In doing so, the Hopewell PD established an entry point[8] "inside the [h]igh [s]chool to block" entrance into the hallway. (Id. ¶ 14.) "The police randomly allowed some to enter the hallway through the [entry point]. Others were stopped and denied entry." (Id. ¶ 15.)

         On the morning of the event, Frances brought both her daughters to the Hopewell High School and planned to escort her younger daughter to the classroom where the instructor had told the students to meet.[9] Officers working at the hallway entrance initially told Frances that she could not accompany her daughter to the classroom, but eventually allowed her to do so.

         Upon returning to the hallway entrance, Frances noticed that Hopewell PD officers, specifically Baxter, had stopped another mother from escorting her child. Plaintiffs claim that Frances told Baxter "that 8 and 9-year-old children 'can't be unsupervised and out of the line of sight of their parents. It is both a safety and liability issue.'" (Id. ¶ 19 (quoting Frances).) Frances then "opined that either parents be allowed to escort their children to a specific classroom or, in the alternative, that one of the many officers[] present escort the children to their required location." (Id.) Plaintiffs allege that "Baxter told Fran[ces] that no parents were allowed in the hallway and it was not her 'job to escort children.'" (Id. (quoting without attribution, presumably Baxter).)

         Frances "countered that safety of the children was exactly Baxter's job and the main reason she was in the [h]igh [s]chool for this event was student safety." (Id. ¶ 20.) Baxter then purportedly "demanded that Fran[ces] leave the [s]chool or be arrested." (Id.) According to Plaintiffs, Frances "calmly demanded to know upon what grounds she was being evicted and, immediately upon asking that question, Baxter arrested Fran[ces], with handcuffs."[10] (Id. ¶ 21.)

         Frances alleges that "Baxter never informed [her]... that she (Baxter) believed that Fran[ces]'s conduct was unlawful." (Id. ¶ 22.) Frances avers that the exchange between herself and Baxter, which "lasted less than one minute" left her "profoundly insulted, embarrassed, humiliated, shocked[, ] and dismayed."[11] (Id. ¶¶ 23, 25.)

         2. Allegations Arising After Frances's Arrest

         Following her arrest, until Baxter identified herself as an attorney, [12] Baxter allegedly "refused to tell" Frances why Baxter arrested her, despite Frances's repeated questions. (Id. ¶ 27.) Then, "in front of many people," Baxter said that she arrested Frances "for 'disorderly conduct in a public place.'"[13] (Id. (quoting without attribution, presumably Baxter).) However, "Baxter refused to tell Fran[ces] what Fran[ces] had done that supposedly constituted 'disorderly conduct.[14]'" (Id. (quoting without attribution).)

         The Court will not resolve this factual dispute when deciding the Officer Defendants' Motion to Dismiss. See Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts."). The Court must give all reasonable factual inferences to Frances at this procedural posture. See Kensington, 684 F.3d at 467 (finding that when deciding a Rule 12(b)(6) motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff' (quoting Kolon Indus., Inc., 637 F.3d at 440)).

         After Baxter placed Frances in handcuffs, Frances "went limp." (Id. ¶ 34.) Plaintiffs contend that Baxter and Officer Michael Redavid[15] "dragged Fran[ces]... outside like a common criminal while Fran[ces] cried out for Pierre."[16] (Id.) Frances adds that "Costello was also present" during this part of the interaction. (Id.)

         After Baxter, Redavid, and Frances arrived outside of the high school, "Baxter told [Hopewell Police Captain] Whittington that she was taking Fran[ces] to jail." (Id.) Whittington, however, "told Baxter to take Fran[ces to] the principal's office. Baxter said 'no' and argued with Whittington for about a minute." (Id. (quoting Baxter).) Whittington ultimately ordered Officer Redavid to take Frances to the principal's office. Frances alleges that the police officers[17] kept her in handcuffs for thirty minutes while holding her in the principal's office. She claims that due to her arrest, her eleven-year-old daughter was left unaccompanied during this time.

         Pierre alleges that after witnessing the officers take Frances outside of the high school, he learned that Baxter and Whittington had taken Frances to the principal's office. Pierre went to the office. Pierre avers that he could see Frances in the office, still in handcuffs. Plaintiffs state that "[a]fter almost twenty (20) minutes," Whittington entered the main office. (Id. ¶ 41.) "Pierre asked him why Fran[ces] was still hand-cuffed since the situation had been under control for a long time. Whittington told Pierre that Fran[ces] was still handcuffed because she was * still under arrest.'" (Id. (quoting Whittington).)

         3. Allegations Following Frances's Release

         After talking to Pierre, Whittington presumably returned to the conference room where the officers held Frances. When Whittington emerged from the conference room, he told Pierre that Frances "was going to be released on a summons and that she and Pierre would be able to attend their 9-year[-]old's pre-performance." (Id. ¶ 42.) "Pierre advised Whittington to inform his Chief to save some money from the budget because Pierre was 'going to sue your (meaning [the] Hopewell [Police Department]) a** off.'" (Id. (quoting Pierre).) Pierre alleges that Whittington then "became highly disrespectful, took a step back[, ] and nervously tried to activate his 'bodycam,' asking Pierre to wait a minute because he needed to record Pierre's 'threat.'" (Id. (quoting without attribution, presumably Whittington).)

         After the officers released Frances, "Baxter and Whittington ... refused to disclose what was the 'disorderly conduct' that Fran[ces] had displayed to justify her arrest. Whittington told Fran[ces] that he did not have to tell her anything and that she would be informed in Court about these details." (M¶43.)

         4. Publication of the Interaction Between Frances and Members of the Hopewell PD

         On March 27, 2017, two days after the event described above, "the Petersburg Progress-Index published an online article entitled 'Hopewell parent handcuffed after incident at Fine Arts Festival.'"[18] (Id. ¶ 44.) The article said, "Hopewell Police Capt. Mike Whittington said that he understood that [Frances] had 'started getting disorderly with the officers' and yelling while they were engaged in closing off restricted areas. However, he noted that he had not personally witnessed the incident and that officers would have to review the body camera footage[19] of the incident." (Id. ¶ 45 (quoting Whittington).)

         On March 29, 2017, four days after the interaction between Frances and members of the Hopewell PD and two days after the Progress-Index article, "WTVR.com published an online article entitled 'Chesterfield mom arrested at school event says "excessive force" used.'"[20] (Id. ¶ 47.) The WTVR.com article quoted Hopewell PD Chief, John Koehane, [21] as saying that he

had heard from Baxter and Whittington ... [that] Fran[ces] was very loud, very aggressive[, ] and belligerent to the officers. They gave her several opportunities to leave the area and to calm down and that just didn't happen. If she just listened to the Officers, the arrest would have never occurred.

(Id. ¶49.)

         5. Frances's Trial in the City of Hopewell General District Court

         Approximately six months after Frances's arrest for disorderly conduct, the Hopewell General District Court heard Frances's case. Kyles, a school bus driver, testified during Frances's trial that "Fran[ces] was belligerent, loud[, ] and used curse[] words in the direction of the police officers involved." (Id. ¶ 58.) He also testified that "Fran[ces] and Pierre's daughter, who witnessed Fran[ces]'s ... arrest, had rolled her[] eyes and stated that she was embarrassed by Fran[ces]'s actions." (Id. ¶59.) Baxter also testified during Frances's trial. According to Plaintiffs, Baxter's testimony was in one part credible: when Baxter testified that Frances did not use curse words and "that Kyles was, in fact, lying to the Court," which contradicted Kyles's testimony. (Id. ¶ 60.) Otherwise, Plaintiffs challenge Baxter's testimony.

         The Hopewell General District Court convicted Frances of disorderly conduct.[22] Frances appealed her case to the Hopewell Circuit Court.[23] Nearly three months later, "the Commonwealth dismissed the charge against Fran[ces] by nolle prosequi." (Id. ¶ 83.)

         B. Factual Background Pertaining to Pierre's Allegations

         Pierre's claims stem from an interaction with Kyles at the Hopewell High School after Frances's trial in the Hopewell General District Court. The afternoon after Frances's trial, Pierre, a member of the Hopewell High School staff, confronted Kyles, a school bus driver for Hopewell High School, while Kyles sat behind the wheel of a bus parked outside of the Hopewell High School. Standing in the open doorway of the bus, Pierre had the following exchange with Kyles:

Pierre: "You should be ashamed of yourself. You're a liar."
Kyles: ("in a defiant tone") "I'm proud of myself." Pierre: "You are proud to be a liar?"
Kyles: "Don't threaten me." Pierre: "I'm not threatening you, I'm telling you that you are a liar."
Kyles: ([S]tarted to gesticulate and told Pierre that if he did not leave and stop[] talking to him[, ] he (Kyles) would) "make a complaint to [Hopewell High School Superintendent Dr. Melody] Hackney.'"
Pierre: "Go ahead, please go ahead."
Kyles: "I feel threatened." ("[A]nd waving his right hand upward like a duster, added") "[S]tep away from my bus."
Pierre: "[Y]ou had your 15 minutes of glory under the sun, but you are a low life liar."

(Compl. ¶¶ 63-68 (quoting Pierre and Kyles as noted).)

         Both Pierre and Kyles reported the interaction to their supervisors. Kyles also filed a complaint with the Hopewell PD. That evening, Hopewell City Public Schools "suspended [Pierre] with pay until further notice." (Id. ¶ 71.)

         "Based on Kyles'[s] complaint, Costello sought and obtained a warrant for Pierre's arrest[] on a charge of'obstruction of justice.'"[24] (Id. ¶ 72.) Pierre's legal counsel then called the Chesterfield County Police (the "Chesterfield PD") and informed them that "Pierre would turn himself in voluntarily to the Hopewell [PD] with his attorney escorting him on Monday, September 25, 2017." (Id. ¶ 73.) On September 22, 2017, four days after the interaction between Pierre and Kyles (and three days before Pierre planned to turn himself in), officers from the Chesterfield PD came to Pierre and Frances's home to arrest Pierre. Pierre contends that the Chesterfield PD did so at Costello's urging. Pierre was not home when the officers arrived, but Frances later informed him that the officers had visited. The next day, Saturday, September 23, 2017, Pierre turned himself in to the Chesterfield PD.

         The Chesterfield PD transferred Pierre to the custody of Hopewell PD. The Hopewell PD detained Pierre and took him before a magistrate. The magistrate released Pierre on a recognizance bond, "the terms of [which] were such that he was prohibited from traveling outside the Commonwealth of Virginia during the pendency of his case."[25] (Id. ¶ 75.) The Commonwealth later dismissed the obstruction of justice charge against Pierre.

         II. Procedural Background

         Frances and Pierre filed their eight-count Complaint in the Circuit Court for the County of Chesterfield (the "Chesterfield Circuit Court"). The Officer Defendants, with Kyles's consent, timely removed the case to this Court. In the Complaint, Plaintiffs allege:

Count I: Baxter and Whittington maliciously prosecuted Frances, in violation of 42 U.S.C. § 1983 (the "Federal Malicious Prosecution claim");
Count II: Baxter and Whittington maliciously prosecuted Frances, in violation of Virginia law (the "Virginia malicious prosecution claim");
Count III: Baxter and Whittington falsely imprisoned Frances, in violation of Virginia law;
Count IV: Baxter and Whittington uttered defamatory per se words about Frances, in violation of Virginia law;
Count V: Baxter and Whittington uttered insulting words about Frances, in violation of § 8.01-45 of the Virginia Code;
Count VI: Costello and Kyles maliciously prosecuted Pierre, in violation of Virginia law;
Count VII: Costello and Kyles uttered defamatory per se words about Frances and Pierre, in violation of Virginia law; and,
Count VIII: Costello and Kyles uttered insulting words about Pierre, in violation of § 8.01-45 of the Virginia Code.

         Frances and Pierre seek compensatory and punitive damages, pre-judgment and post-judgment interest, attorneys' fees, and costs.

         The Officer Defendants filed, in this Court, their Motion to Dismiss. Kyles filed, in this Court, his Motion to Dismiss. Plaintiffs jointly responded to the two motions. The Officer Defendants and Kyles replied. The matter is now ripe for disposition.

         III. Standard of Review: A Rule 12(b)(6) Motion to Dismiss

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." BellAtl Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.") Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, "naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).

         A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556; see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). This analysis is context-specific and requires "the reviewing court to draw on its judicial experience and common sense." Francis, 588 F.3d at 193. The Court must assume all well-pleaded factual allegations to be true and determine whether, viewed in the light most favorable to the plaintiff, they "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 676-79; see also Kensington, 684 F.3d at 467 (finding that the court in deciding a Rule 12(b)(6) motion to dismiss "must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff (quoting Kolon Indus., Inc., 631 F.3d at 440)).

         The Court addresses each count below.

         IV, Analysis: § 1983 Malicious Prosecution

         In Count I, Frances claims that Baxter and Whittington maliciously prosecuted her, in violation of 42 U.S.C. § 1983.[26] Because of the favorable reading afforded to Plaintiffs' complaint at this stage of the litigation, the Court allows Frances to pursue this claim against Baxter, but not against Whittington.

         A. Plaintiffs Allege Sufficient Facts for Frances to State a Claim of Federal Malicious Prosecution Against Baxter

         "To succeed on a § 1983 claim, a plaintiff must prove by a preponderance of the evidence that: (1) the defendant engaged in conduct which deprived plaintiff of a federal constitutional or statutory right, (2) that the defendant was acting under color of law, and (3) that the acts of that defendant proximately caused the plaintiffs damages." Daniczek v. Spencer, 156 F.Supp.3d 739, 747 (E.D. Va. 2016) (citing Amato v. City of Richmond, 875 F.Supp. 1124, 1132-33 (E.D. Va. 1994)).

         Baxter arrested Frances for disorderly conduct, a Class 1 Misdemeanor, following an encounter between Frances and Baxter at the Hopewell High School. During the interaction, Frances confronted Baxter when Baxter would not allow another parent to accompany a student through a Hopewell PD entry point after Baxter had allowed Frances to do so. Frances argues that her arrest violated her Fourth and Fourteenth Amendment[27] rights and that § 1983 allows her to challenge the propriety of her arrest. The Officer Defendants challenge Frances's ability to sustain this cause of action. For the reasons stated below and at this procedural stage, the Court finds that Frances states a plausible claim for relief against Baxter in Count I.

         1. Frances Plausibly Establishes that Baxter Seized Her Pursuant to a Legal Process Not Supported by Probable Cause, Satisfying the First Prong of the $ 1983 Analysis

         To meet the first prong of the § 1983 analysis in a Fourth Amendment claim, Frances must show that (a) Baxter seized her "pursuant to legal process that was not supported by probable cause and [(b)] that the criminal proceedings have terminated in [Frances's] favor."[28] Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014) (citing Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012)). The Officer Defendants challenge Frances's ability to show that Baxter seized her "pursuant to a legal process not supported by probable cause" because, they argue, Baxter had probable cause to effectuate the arrest. Id. Although "[p]robable cause 'is not a high bar, '" Spivey v. Norris, 731 Fed.Appx. 171, 175 (4th Cir. 2018) (quoting Dist. of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018)), Frances pleads sufficient facts for her claim that Baxter lacked probable cause to survive a motion to dismiss.

         Probable cause sufficient to justify an arrest exists when the "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person ... in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Spivey, 731 Fed.Appx. at 176 (quoting United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998)). "While probable cause requires more than bare suspicion, it requires less than that evidence necessary to convict." Id. at 175-76 (quoting Gray, 137 F.3d at 769). Two factors guide a court's probable cause inquiry: "the suspect's conduct as known to the officer, and the contours of the offense thought to be committed by that conduct." Id. (quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). In this case, the Court looks to Frances's conduct as known to Baxter at the time of France's arrest, and to the contours of the Virginia disorderly conduct statute.

         Plaintiffs claim that throughout the interaction between Frances and Baxter, which "lasted less than one minute," (Compl. ¶ 25), Frances

was not intoxicated.... never raised her voice.... never threatened Baxter or anyone else.... never approached Baxter or made any gestures towards her.... did not incite Baxter or anyone else to violence.... did nothing to disrupt the [school] event and, indeed, the event was never disrupted[, ] (id. ¶ 24). Rather, Frances states that after Baxter "demanded that Fran[ces] leave the [s]chool," (id. ¶ 20), "Fran[ces] calmly demanded to know upon what grounds she was being evicted and, immediately upon asking that question, Baxter arrested Fran[ces], "[29] (id. ¶ 21).

         In Virginia, it is a Class 1 Misdemeanor

if, with the intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof... [she or] he ... [w]illfully or while intoxicated ... disrupts the operation of any school or any activity conducted or sponsored by any school, if the disruption ... prevents or interferes with the orderly conduct of the operation or activity or... has a direct tendency to cause acts of violence by the person ... at whom, individually, the disruption is directed.

Va. Code Ann. § 18.2-415(C).

         Based on these allegations and the contours of the Virginia disorderly conduct statute, the Court permits Frances, for purposes of a motion to dismiss, to maintain her § 1983 malicious prosecution claim against Baxter. In Virginia a person violates the disorderly conduct statute when she or he "disrupts the operation of any school or any activity conducted or sponsored by the school." Va. Code Ann. § 18.2-415(C). Plaintiffs allege that the encounter between Frances and Baxter transpired in less than one minute and that "the [school] event was never disrupted," (Compl. ¶ 24). At this early stage, taking as true the factual allegations and drawing all reasonable inferences in Frances's favor, Frances alleges facts showing that she plausibly did not violate Virginia's disorderly conduct statute. She also demonstrates, albeit marginally, that the facts and circumstances within Baxter's knowledge did not suffice to support probable cause for her arrest. Because Frances may show that Baxter seized Frances without probable cause, she plausibly satisfies the first prong of the § 1983 analysis.

         2. Frances Sufficiently Alleges that Baxter Hid Evidence of Frances's Innocence, So Baxter's Actions Constitute the Proximate Cause of Frances's Arrest Meeting the Third Prong of the $ 1983 Analysis

         Having found that Frances pleads minimally sufficient factual allegations to satisfy the first prong of the § 1983 analysis and with the parties conceding that Baxter acted under color of law, [30] the Court turns to the third prong of that test: whether Baxter's actions proximately caused Frances's arrest. See Daniczek, 156 F.Supp.3d at 747. Frances also meets this prong of the § 1983 analysis for purposes of this motion to dismiss.

         An officer may avoid liability for malicious prosecution by showing that the "subsequent acts of independent decision-makers (e.g., prosecutors, grand juries, and judges)... constitute intervening superseding causes that break the causal chain between a defendant-officer's misconduct and a plaintiffs unlawful seizure." Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). The actions of the independent decision-makers will not insulate the officer from liability, however, if an officer "present[s] false evidence, hide[s] evidence of innocence, or unduly pressure[s] a prosecutor into pressing charges." Copenny v. City of Hopewell, 7 F.Supp.3d 635, 640 (E.D. Va. 2014) (citing Evans, 703 F.3d at 647-48). "In these circumstances, an officer can still be liable for a wrongful prosecution, even though a prosecutor or grand jury makes the final decision to prosecute." Id. (citing Willis v. Blevins, 966 F.Supp.2d 646, 653-54 (E.D. Va. 2013)).

         In the Complaint, Plaintiffs allege that "[i]n procuring Fran[ces']s arrest, Baxter and Whittington intentionally falsified evidence and ignored and/or covered-up the CCTV and bodycam videotapes." (Compl. ¶ 90.) Standing alone, the Court would not give weight to this conclusory allegation. But in support of this serious allegation, Plaintiffs aver that "[t]he incident [between Frances and Baxter] was captured on [the school's closed circuit television]... and on bodycams worn by Baxter and Baxter's fellow officers. The videotapes demonstrate that there was no probable cause and that Baxter's conduct was objectively unreasonable." (Id. ¶ 33.) Plaintiffs also contend that Whittington's statements to the Progress-Index confirm that video evidence existed. But Plaintiffs aver that they have never received the video recordings: "neither Baxter nor Whittington nor any other Hopewell police officer ever produced the exculpatory body camera video." (Id. ¶¶ 45-46.) Seemingly, the videos might prove the truth or falsity of both sides' positions.

         Whether any video evidence was withheld, destroyed, lost, faulty, or nonexistent is a question to be answered later in litigation. But drawing all reasonable inferences in Plaintiffs' favor, Plaintiffs sufficiently plead facts to show that Baxter potentially "hid evidence of innocence" sufficient to overcome the superseding nature of the Commonwealth Attorney's decision to prosecute Frances. Copenny, 7F.Supp.3d at 640. Because Baxter's actions, as alleged, stand as both the actual and proximate cause of Frances's allegedly unlawful seizure, Plaintiffs plausibly satisfy the third and final prong of the § 1983 analysis. Thus, Frances meets all prongs required to overcome the motion to dismiss her § 1983 claim in Count I against Baxter.

         3. Qualified Immunity Does Not Protect Baxter's Conduct

         Finally, Baxter contends that even if Frances successfully pleads a § 1983 malicious prosecution claim, Baxter cannot be held liable because qualified immunity protects her from liability. At the motion to dismiss stage, the contentions discussed above overcome Baxter's claim of qualified immunity.[31]

         Qualified immunity shields government officials from civil liability when they perform discretionary functions insofar as their conduct does not violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The qualified immunity defense ensures that "officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).

To overcome qualified immunity a plaintiff must meet a two-step inquiry:[32]
First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct.[33]

Pearson, 555 U.S. at 232 (internal citations omitted).

         Relying solely on the well-pleaded factual allegations in the Complaint, and disregarding disputed facts, Plaintiffs plausibly plead sufficient facts to claim that Baxter arrested Frances without probable cause. Because a reasonable officer would have known that she or he could not arrest a person without a warrant or probable cause, Baxter cannot claim qualified immunity.[34]

         Therefore, the Court will deny the Officer Defendants' Motion to Dismiss as to Frances's § 1983 malicious prosecution claim in Count I against Baxter.

         B. Frances Does Not Allege Sufficient Facts to State a Claim of ยง 1983 Malicious Prosecution Against Whittington Because She Fails ...


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