United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
a civil rights action brought by pro se plaintiff
John Rodgers Burnley ("Burnley") against former
Richmond Police Chief Alfred Durham ("Chief
Durham"); "[u]nknown [n]amed [p]olice
[o]fficers [f]or [t]he City of Richmond" (the
"Unknown Officers"); the City of Richmond Police
Department (the "RPD"); the City of Richmond (the
"City"); Darsetta M. Coleman ("Coleman"),
Burnley's neighbor; "COMCAST," meaning Comcast
Cable Communications LLC ("Comcast");
"Verizon," meaning Verizon Virginia LLC
("Verizon"); and Keith Brown, a Verizon technician.
See Compl. (ECF No. 4) at p. 2. Burnley alleges
myriad violations under 42 U.S.C. § 1983 and 42 U.S.C.
§ 1981, as amended by the Civil Rights Act of
1991. The case is currently before the Court on the
defendants' various motions to dismiss. See DEFENDANTS
ALFRED DURHAM, RICHMOND POLICE DEPARTMENT AND CITY OF
RICHMOND'S MOTION TO DISMISS PURSUANT TO RULE 12(b) (6)
(ECF No. 11); DEFENDANT COMCAST CABLE COMMUNICATIONS,
LLC'S MOTION TO DISMISS (ECF No. 15); DEFENDANT DARSETTA
COLEMAN'S MOTION TO DISMISS (ECF No. 22).
Court will dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the Court, and argument would not aid in the
decisional process. For the reasons discussed below, the
Court finds that Burnley has failed to plead an actionable
claim. Thus, the case will be dismissed under Fed.R.Civ.P.
12(b) (6) with respect to Chief Durham, the RPD, the City,
Comcast, and Coleman. The Court further will dismiss the
claims against Verizon and Keith Brown under 28 U.S.C. §
1915 (e) (2) (B), because his claims are wholly fanciful and
meritless against them. Finally, the claims against the
Unknown Officers will be dismissed under 28 U.S.C. §
1915 (e) (2) (B) (ii) because Burnley fails to state a claim
against the RPD or the City.
Rodgers Burnley is a frequent filer of pro se cases
against various government officials. By the Court's
count, he has filed thirteen cases in this Court dating back
to 1990, mostly involving civil rights claims. Burnley filed a
Complaint in forma pauperis alleging that
the defendants cooperated to spy on him through illegal
wiretaps. Specifically, he alleges that Chief Durham and the
RPD conducted a campaign to harass and intimidate him through
using a Verizon technician named Keith Brown to wiretap
Burnley's house. Compl. (ECF No. 4) ¶¶ 2-4. In
Burnley's view, Chief Durham directed others to surveil
the inside of Burnley's home without probable cause,
using a "highly sophisticated technique," which
involved Burnley's Comcast cable box sending out a
"laser bean signal" that allowed police officers to
look through his television sets in six rooms throughout his
house. Id. ¶¶ 5-7. Burnley alleges that
Brown told Burnley that Brown was making a wiretap on
Burnley's phone every thirty days as Brown was directed
to by Chief Durham and the RPD. Id.. ¶ 10.
Brown then told Burnley that the RPD "want[ed] to lock
[Burnley] up so [sic] kind of bad" even though Brown
told Burnley that Burnley was doing nothing illegal.
Id. ¶¶ 11-12. Because Brown was
sympathetic to Burnley, Burnley alleges that Brown gave
Burnley his personal cell phone numbers so that Brown could
keep Burnley informed as to what Chief Durham and the RPD
were trying to do to arrest Burnley. Id. ¶ 14.
also alleges that he used a digital police scanner to hear
what the RPD was saying about him in his home, and Burnley
alleges that RPD officers would discuss his activities as he
walked throughout his home. Id. ¶ 20. And, he
argues that his neighbor, Coleman, conspired with Chief
Durham and the RPD by renting her car out to the RPD so that
"two (2) black female plain clothes police
officers" could turn her car's high headlight beams
on his home from 10:00 p.m. to 2:00 a.m. to harass Burnley,
because Coleman wanted Burnley to go to jail. Id.
Burnley alleges that he told Chief Durham and Peter Magri of
the Verizon Corporate Security Office about this issue and
that no one who works for the City or Verizon helped prevent
the surveillance. Id. ¶¶ 1-2, 9, 15.
Burnley also says, in a conclusory manner, that Comcast had
full knowledge of this surveillance program. Id.
¶ 18. Further, he alleges that these actions have caused
emotional distress to he and his family. Id. ¶
of this alleged surveillance and harassment scheme, Burnley
believes that he is entitled to roughly $2 billion. He seeks
damages of $75 million from Chief Durham in his personal
capacity and $150 million in his official capacity for
violating the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution. He also seeks $700 million from
Chief Durham, the Unknown Officers, the RPD, and the City for
the same violations, saying that his privacy was invaded and
that he had severe mental and emotional distress due to these
constitutional violations. Burnley also seeks $600 million
from Comcast, $700 million from Verizon and Keith Brown, and
$75 million from Coleman for acting in concert with the City
to violate his constitutional rights.
Burnley filed an APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS (ECF No. 1), the Court issued
an ORDER dated July 13, 2018 (ECF No. 3), in which the Court
granted the application, but, in so doing, the Court
cautioned that Burnley should ensure that his claims were
possibly meritorious before proceeding with his case due to
his history of frivolous filings. Id. Burnley filed
a NOTICE OF APPEAL (ECF No. 8) on July 24, 2018, arguing that
the Court had violated his due process rights and that the
Court's ORDER told Burnley that he did not have "any
federally protected constitutional rights under the 4th and
14th amendments." Id. On January 4, 2019, the
United States Court of Appeals for the Fourth Circuit held
that it lacked jurisdiction over Burnley's appeal. Fourth
Circuit Opinion (ECF No. 31). The mandate was issued on
January 28, 2019, giving this Court jurisdiction again.
Mandate (ECF No. 33).
meantime, various defendants filed motions to dismiss.
Defendants Chief Durham, the RPD, and the City filed a motion
under Fed.R.Civ.P. 12 (b) (6). See DEFENDANTS ALFRED DURHAM,
RICHMOND POLICE DEPARTMENT AND CITY OF RICHMOND'S MOTION
TO DISMISS PURSUANT TO RULE 12 (b) (6) (ECF No. 11). Comcast
filed a motion to dismiss under 28 U.S.C. § 1915 (e) (2)
(B) (i); Fed.R.Civ.P. 12 (b) (6); and Fed.R.Civ.P. 12 (b)
(1). See DEFENDANT COMCAST CABLE COMMUNICATIONS, LLC'S
MOTION TO DISMISS (ECF No. 15). Coleman filed a motion to
dismiss under Fed.R.Civ.P. 12 (b) (6). See DEFENDANT
DARSETTA COLEMAN'S MOTION TO DISMISS (ECF No. 22) . Each
of those motions will be addressed below.
Fed.R.Civ.P. 12 (b) (1)
may file a motion to dismiss for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12 (b) (1). If a court finds
that it does not have subject matter jurisdiction over the
case or controversy, it must dismiss the action. Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006). Of course,
the plaintiff bears the burden of establishing that federal
jurisdiction is proper by a preponderance of the evidence.
U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347
(4th Cir. 2009).
to subject matter jurisdiction may be made in two ways.
First, a facial challenge to jurisdiction may be made by
arguing that the complaint does not allege facts that permit
the exercise of federal subject matter jurisdiction. See
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). If that type of challenge is raised, the court must
assume that all facts alleged in the complaint are true.
Id. Second, the challenge can be made under the
theory that the complaint's assertion of subject matter
jurisdiction is not true. Id. (quoting Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In that
event, a court may consider evidence outside the pleadings.
Fed.R.Civ.P. 12 (b) (6)
considering a motion to dismiss under Rule 12 (b) (6), the
Court accepts all well-pleaded allegations as true and views
the complaint in the light most favorable to the plaintiff.
Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009). But the Court does not need to accept
the plaintiff's legal conclusions drawn from those facts.
Id. The Court can take judicial notice of matters of
public record, and it can consider documents attached to the
complaint and motions to dismiss "so - long as they are
integral to the complaint and authentic." Id.
Civ. P. 8 (a) (2) requires "a short and plain statement
of the claim showing that the pleader is entitled to
relief" 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) (ellipsis in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)) . A complaint attacked
by a motion to dismiss under Rule 12 (b) (6) does not require
detailed factual allegations, but it does require "more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do."
Id. The 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) (quoting
Twombly, 550 U.S. at 570). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the ...