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Burnley v. Durham

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

August 6, 2019

ALFRED DURHAM, et al., Defendants.


          Robert E. Payne, Senior United States District Judge.

         This is a civil rights action brought by pro se plaintiff John Rodgers Burnley ("Burnley") against former Richmond Police Chief Alfred Durham ("Chief Durham");[1] "[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");[2] 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).[3]

         The 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.


         A. Factual Background

         John 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.[4] 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.

         Burnley 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. ¶¶ 2.1-22.

         Further, 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. ¶ 8.

         Because 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.

         B. Procedural Background

         After 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).

         In the 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.


         A. Legal Standard

         1. Fed.R.Civ.P. 12 (b) (1)

         A party 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).

         Challenges 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. Id.

         2. Fed.R.Civ.P. 12 (b) (6)

         In 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.

         Fed. R. 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 ...

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