United States District Court, W.D. Virginia, Roanoke Division
WALTER L. JOHNSON, Plaintiff,
DONALD CALDWELL, et al., Defendants.
Glen E. Conrad Senior United States District Judge
L. Johnson, proceeding pro se, commenced this action by
filing a form complaint against Donald Caldwell, the
Commonwealth's Attorney for the City of Roanoke, and
Douglas Hubert, a Virginia State Police Special Agent. The
plaintiff has not paid the filing fee but will be granted
leave to proceed in forma pauperis for purposes of
initial review of his complaint. For the following reasons,
the court concludes that the case must be dismissed for
failure to state a claim, pursuant to 28 U.S.C. §
following facts are taken from the complaint and the attached
exhibits. See Goines v. Valley Cmtv. Servs. Bd.. 822
F.3d 159, 166 (4th Cir. 2016) (noting that the court may
consider exhibits to a complaint in assessing its
September of 2013, law enforcement officers executed a search
warrant at the plaintiffs residence as part of an
investigation by the Virginia State Police. During the
search, computers, hard drives, photographs, and other items
of personal property were seized by law enforcement officers.
Ultimately, no charges were brought as a result of the
14, 2017, Caldwell, on behalf of the Commonwealth, moved the
Circuit Court for the City of Roanoke to order the
destruction of 24 items seized during the investigation.
"The Commonwealth represent[ed] to the Court that the
listed items [had] been 'contaminated' with child
pornography and [could not] be sanitized or cleaned for any
future commercial use." July 14, 2017 Order, Dkt. No.
2-1. The Circuit Court granted the motion and "ordered
that agents of the Virginia State Police destroy said such
items listed on the attached document at a time and in a
manner that is most practicable." Ia\ (capitalization
omitted). The Court also required the filing of a certificate
upon completion of the destruction.
Commonwealth filed the requested certificate of destruction
on September 26, 2017. The certificate indicates that the
specified items of personal property were destroyed by Hubert
on September 25, 2017, pursuant to the Circuit Court's
order. See Certificate of Destruction, Dkt. No. 2-1
("Pursuant to a written order of the Roanoke City
Circuit Court dated July 14, 2017, the following items were
destroyed at 1:30 p.m. on the 25th day of September, 2017 ...
by Virginia State Police Special Agent Douglas R.
point thereafter, the plaintiff contacted the Virginia State
Police regarding the items seized from his residence. On June
11, 2019, a representative of the Virginia State Police
emailed the plaintiff and advised him that the property had
been destroyed pursuant to a court order issued on July 14,
2017. The plaintiff subsequently received a copy of the order
and the certificate of destruction.
24, 2019, the plaintiff filed a form complaint against
Caldwell and Hubert. The plaintiff alleges that he "was
never advised that proceedings had been undertaken to deprive
[him] of [his] property." Compl. 3, Dkt. No. 2.
Consequently, the plaintiff claims that the defendants
deprived him of his property without due process of law, in
violation of the Fourteenth Amendment. He seeks to recover
compensatory and punitive damages, and requests that the
defendants be removed from their positions.
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 plaintiff.
Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009). To survive dismissal for failure to state a
claim, a complaint must contain sufficient factual
allegations "to raise a right to relief above the
speculative level" and "to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007).
the plaintiff characterizes this action as one for violation
of his right to due process, the court construes the
complaint as being brought pursuant to 42 U.S.C. § 1983.
Section 1983 provides a cause of action against any person
who, under color of state law, causes the deprivation of
another person's rights under the Constitution or laws of
the United States. 42 U.S.C. § 1983. For the following
reasons, the court ...