United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING IN PART AND DENYING IN
PART MOTION TO DISMISS)
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE
Owen Wilson, a Virginia inmate proceeding pro se,
filed this 42 U.S.C. § 1983 action. (Compl., ECF No.
The matter is before the Court on the Motion to Dismiss filed
by Defendant David Woods, Richmond City Police Officer
("Officer Woods"). (ECF No. 56.) Wilson filed a
"Certificate of Service" with the Court, indicating
that he had mailed his Response to Officer Woods; however,
Wilson did not file this Response with the Court. (ECF No.
59, at 1.) Despite receiving additional time to file this
Response with the Court, Wilson did not file any such
Response, and the time to do so has expired. (See
ECF No. 60, at 1.) For the reasons stated below, the Motion
to Dismiss (ECF No. 56) will be granted in part and denied in
STANDARD FOR MOTION TO DISMISS
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 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to 'give the
defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level," id.
(citation omitted), stating a claim that is "plausible
on its face," id. at 570, rather than merely
"conceivable." Id. "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 (citing BellAtl.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
the plaintiff must "allege facts sufficient to state all
the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003) (citingDickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States,
289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court
liberally construes pro se complaints, Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that the
inmate failed to clearly raise on the face of his complaint.
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.
1997) (Luttig, J., concurring); Beaudettv. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Wilson's Complaint, he presents the following
On October 21, 2015, at approximately 10:00 p.m., [Wilson]
was leaving a CVS Pharmacy at 2300 Main St. when [Wilson]
came into contact with Richmond City Police Officer David
Woods Shield #612.
The officer was called in regards to a dispute that took
place between [Wilson] [and] the [CVS] store employee.
([Wilson's] plight was CVS stated to him they do not take
personal checks [and] [Wilson] demanded to see [the] store
policy stating so. Store employee wanted [Wilson] to leave
[the] store so that they would not have to comply with
[Wilson's] request, henceforth calling officer.)
[Wilson] attempted to explain his grievance to Officer Woods
expressing that he wanted to make a documented complaint
against CVS for discrimination. Officer Woods refused to take
note of [Wilson's] claim, only asking to see his check.
[Wilson] already being told by CVS employee that "They
didn't take checks" didn't see the point in
showing the officer his personal check, especially since the
officer blatantly refused to acknowledge and record his
claim. So instead of showing [the officer] his check, he
politely told the officer "have a nice day" and
Shortly [thereafter and] approximately 4 to 5 minutes [and]
two blocks away, Officer Woods pulled beside [Wilson] [and]
exited his vehicle in approaching [Wilson] as [Wilson]
continued to walk west on Main St. "Let me speak with
you . . .[, ]" [Officer Woods] stated in an authorized
manner. [Wilson] refused stating he didn't want to speak
with him. The officer then asked where [Wilson] was going.
(The question was to obviously attempt to get [Wilson] to
stop voluntarily.) [Wilson] continued walking, stating,
"I'm going about my way."
Officer Woods then grabbed [Wilson] by the arm (left) to stop
him from walking. [Wilson] [asked] [Officer Woods] why was he
putting his hands on [Wilson] . . . and what crime did
[Wilson] commit . . . what warrant[ed] him (officer) to grab
[Wilson] attempting to put handcuffs on him. Officer's
only response was "shut up . . . you want to get hurt?!
. . . I'm going to tase you . . .!" "For what?
. . . What crime [am] I being accused of? . . . (Because
[Wilson] had [his] mobile device in [his] hand, [he] was able
to record this incident, but once Officer Woods realized
[Wilson] was recording the incident, he snatched the phone
throwing it to [the] ground [and] stomping it.)
Officer Woods twisted [Wilson's] left wrist until he was
in so much pain he was forced to submit his arms to be
cuffed. Once cuffed, Officer Woods stomped on the back of
[Wilson's] heel. Never did he "pat frisk"
[Wilson], instead [he] dug his hand directly into
[Wilson's] left pocket (front) [and] pulled out
[Wilson's] personal checkbook. By this time, other
officers arrived on the scene and asked "what's the
collar?" Officer Woods['s] reply was "this guy
tried to cash some stolen checks."
To rebut this false statement, (the police officer never
confirmed with the CVS employee what the situation was, never
did the CVS employee make a complaint related to [Wilson]
attempting to pass, cash, issue ... a stolen check ... in
fact, the only time Officer Woods was informed about a check
was from [Wilson] himself, when [Wilson] attempted to explain
how he felt discriminated against by the CVS employee)
[Wilson] provided proof that the checks in his possession
[were] his through ID [and] bank statements.
A superior officer instructed Officer Woods if he didn't
"have anything else on [Wilson] let him go."
Officer Woods reluctantly removed the cuffs, but attempted to
keep [Wilson's] phone, bank book [and] ID, telling
[Wilson], "Get the [expletive] out of here." (Woods
snap[ped] [a] ...