CALLOWAY v. TAYLOR (2020)

ORDER & OPINION

This matter is before the Court on motions to dismiss by Defendants Herbert E. Taylor, III, Esq., Dkt. 14, P. Scott DeBruin, Esq., Dkt. 32, and, jointly, the Amherst County Sheriff's Department (“ACSD”) and the Lynchburg Police Department (“LPD”), Dkt. 16. Plaintiff Leon Vincent Calloway, proceeding pro se, brought suit against the above-named Defendants and others for events arising from a traffic stop on May 24, 2016, which resulted in Plaintiff's arrest and the seizure of $14,000 cash. Dkt. 2; 2-1. Defendants move to dismiss for various procedural and substantive flaws in Plaintiff's complaint.

The Court will grant Defendants’ motions to dismiss. Even looking past the procedural flaws within Plaintiff's complaint, it fails to provide factual allegations sufficient to state claims against any of these Defendants. However, the Court will dismiss Plaintiff's complaint without prejudice to his ability to refile a subsequent, valid complaint.

Background

This action arises from an alleged traffic stop that occurred on May 10, 2016. Dkt. 2-1 at 5. Plaintiff alleges that “Officer Knabb,” an employee of the City of Lynchburg and LPD, conducted a warrantless search incident to the arrest of Plaintiff and his vehicle, which Plaintiff alleges was unconstitutional and resulted in Plaintiff's detention. Id. Plaintiff provides no factual detail as to why this search was unconstitutional, what gave rise to the police stop, or what the officer's purported justification for the stop, arrest, or search was. Plaintiff alleges that days later, on May 16, 2016, the ACSD confiscated $14,000 from Plaintiff “due to the unlawful charges brought against [Plaintiff] on May 10, 2016.” Id. at 4.

Plaintiff alleges that on August 30, 2017, a suppression hearing was held in the Lynchburg Circuit Court, where the court erroneously determined that Officer Knapp's search incident to arrest did not violate the Fourth Amendment. Id. at 3. Plaintiff contends that “[i]f not for this completely clear knowledgeable reckless error by the Lynchburg Circuit Court there is a ‘reasonable possibility’ Mr. Calloway's incarceration would have been terminated and his ‘freedom’ restored at that time.” Id. at 3. Plaintiff further alleges that on November 5, 2016, the City of Lynchburg issued an indictment against him “which was clearly known to be unlawful.” Id. at 2.

Plaintiff also brings suit against his court-appointed counsel in this matter, Herbert E. Taylor, III, Esq. and P. Scott DeBruin, Esq., for “ineffective assistance of counsel.” Id. at 7. He alleges that if not for their “constitutional deficient representation,” he would not have been incarcerated. Id. Specifically, Plaintiff takes issue with Taylor's alleged failings at Plaintiff's October 24, 2016 preliminary hearing, and DeBruin's alleged failings at an August 30, 2017 suppression hearing. Id. at 8–11. Plaintiff does not state the relief sought with respect to Taylor and DeBruin.

In the Pro Se Complaint form filed with the Court on July 8, 2019, Plaintiff named as Taylor, DeBruin, LPD, the City of Lynchburg, and the Lynchburg Circuit Court as Defendants. Plaintiff failed to serve the City of Lynchburg or the Lynchburg Circuit Court within 90 days, Dkt. 23, but moved shortly after this deadline for an extension of time to file, Dkt. 25. The Court denied this request, stating that because Plaintiff's claims against the City of Lynchburg and the Lynchburg Circuit Court would clearly fail, the motion was futile. Dkt. 29.

Finally, the Court takes judicial notice of the fact that on or about October 17, 2017, Plaintiff pled guilty in this underlying criminal matter to possession of cocaine, possession of cocaine with intent to distribute, and possession of hydrocodone. Commonwealth v. Leon Vincent Calloway, Case No. CR16000680.

Defendants’ motions are now briefed and ripe for ruling. No party has requested a hearing on this matter.

Legal Standard

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the nonmoving party.” Massey v. Ojaniit, 759 F.3d 343, 347 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302. Pro se complaints are afforded a liberal construction. Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006).

Analysis

1. Herbert E. Taylor, III, Esq. and P. Scott DeBruin, Esq.

Plaintiff asserts that after he was arrested and his $14,000 was confiscated, Taylor was appointed as counsel to represent him against the criminal charges he faced. Dkt. 1 at 7. Plaintiff asserts that at an October 24, 2016 preliminary hearing, Taylor failed to properly “object and [move] to strike this unlawful and illegal search that he clearly knew violated Mr. Calloway's rights.” Id. Plaintiff alleges that this “reckless Constitutional Deficient Representation” caused Plaintiff to continue his incarceration and lose his $14,000. Id. at 8.

Plaintiff also alleges that DeBruin was appointed to this matter on February 5, 2017. Dkt. 2-1 at 11. Plaintiff asserts that Plaintiff had knowledge of documents from the “Commonwealth's files dated September 27, 2016” that provided clear evidence that the search was unlawful, but failed to raise this evidence at an August 30, 2017 suppression hearing. Id. Although Plaintiff frames these actions as constitutional violations, Plaintiff appears to attempt to hold Taylor and DeBruin liable for legal malpractice.¹

Plaintiff's complaint is deficient in a number of ways against Taylor. First, although Plaintiff requests the return of his $14,000 from the police officials, Plaintiff does not specify what relief he seeks with respect to Taylor (who, as a private citizen, has no ability to return funds held by a police department). Fed. R. Civ. P. 8(a)(3) (stating that a complaint must include “a demand for relief sought”). Second, Section 1983 is a means for holding “state officials” liable for unconstitutional acts, not private citizens like Taylor. DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999). Plaintiff might have alleged that Taylor had such “a sufficiently-close relationship with state actors such that a court would conclude that the non-state actor is engaged in the state's actions,” id., but Plaintiff did not make that argument. In any event, it would have also failed, as this is a demanding threshold not met by a defense attorney merely failing to adequately represent an individual in a criminal proceeding, as Plaintiff alleges. See Polk Cty. v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).

At bottom, Plaintiff would have this Court hold Taylor civilly liable for his allegedly inadequate representation in connection with a criminal case. But Virginia law provides that an individual can only hold a defense attorney liable after demonstrating that he obtained post-conviction relief and innocence entitling him to release. Taylor v. Davis, 265 Va. 187, 576 S.E.2d 445, 447 (2003). Put otherwise, Plaintiff must first succeed in overturning his criminal conviction before he can attempt to hold Taylor or DeBruin liable in a civil action such as this. Plaintiff's complaint does not allege that his criminal conviction has been overturned. Thus, liberally construing Plaintiff's complaint to state a claim for legal malpractice against Taylor and DeBruin, the Court will dismiss Plaintiff's complaint without prejudice to file a new action for legal malpractice.

2. Lynchburg Police Department and Amherst County Sheriff's Department

Plaintiff also seeks to hold the LPD and the ACSD liable for the loss of $14,000 occurring because of an allegedly unconstitutional search.

First, LPD and ACSD are not proper parties for a Section 1983 action. Thompson v. City of Danville, Va., No. 4:10-cv-00012, 2011 WL 2174536, at *13 (W.D. Va. June 3, 2011), aff'd, 457 F. App'x 221 (4th Cir. 2011); Trantham v. Henry Cty. Sheriff's Office, No. 4:10-cv-00058, 2011 WL 863498, at *16 (W.D. Va. Mar. 10, 2011), aff'd, 435 F. App'x 230 (4th Cir. 2011). Furthermore, it appears from Plaintiff's complaint that it is time barred. In Virginia, a Section 1983 action must be brought within two years of Plaintiff gaining knowledge of the harm done to him. Va. Code Ann. § 8.01-243(A). The unconstitutional stop allegedly occurred on May 16, 2016, and the suppression hearing allegedly occurred on October 24, 2016. Plaintiff did not file this complaint until July 8, 2019, well over two years after the arrest or the subsequent suppression hearing. Dkt. 2.

Regardless, even if LPD and ACSD were proper parties to this action, and even if Plaintiff's action was not time barred, Plaintiff's Complaint still fails to state a claim for which relief could be granted. Plaintiff alleges zero factual details of the search aside from the day the incident occurred, merely alleging that “Officer Knabb of the Lynchburg Police Department” ignored constitutional limits on the search incident to arrest and “continued a search that he clearly knew to be unlawful, illegal and violated [Plaintiff's constitutional rights.]” On these bare allegations of an “unlawful” and “illegal” search of Plaintiff, he asks this Court hold Defendants liable. But Plaintiff fails to provide any facts as to what happened at this search. Plaintiff, as a pro se party, is not held to the same rigorous pleading standards as a plaintiff proceeding with representation would be, Laber, 438 F.3d at 413 n.3, but his complaint must nevertheless state sufficient detail to allow the Court to say, if Plaintiff's allegations are true, this would indeed violate Plaintiff's Fourth Amendment rights. The Court cannot merely accept Plaintiff's representation that the search was unconstitutional. The Court need not accept as true allegations that are legal conclusions.

It appears from Plaintiff's complaint that he may have also intended to sue the individual officer who effectuated the arrest (identified in the complaint as “Police Officer Knapp”), despite not naming Officer Knapp in his Pro Se Complaint form. See Dkt. 2 at 2–3. However, Plaintiff failed to serve Officer Knapp and he only requested an extension for time to serve his complaint on the Lynchburg Circuit Court and the City of Lynchburg. As a result, the Court on June 10, 2020 dismissed Officer Knapp from the case to the extent Plaintiff intended to identify him as a defendant. Dkt. 29. Plaintiff subsequently submitted a letter to the Court stating that he has been attempting to secure an attorney and serve Officer Knapp, but the social distancing measures imposed by COVID-19 have prevented him from doing so. Dkt. 33. To the extent that this letter requests that the Court reconsider its June 10 ruling, this request is denied, because Plaintiff's claims fail to state a claim for the same reason (or one of the reasons) it fails to state a claim against LPD and ACSD: Plaintiff fails to allege any factual detail about what occurred on the May 16, 2016 search that would allow the Court to find, if Plaintiff's allegations are true, that a Fourth Amendment violation occurred.

Thus, the Court will grant LPD's and ACSD's motion to dismiss without prejudice to Plaintiff's ability to refile. Again, a subsequent complaint must contain sufficient “facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. That means the Complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. Furthermore, the Court reiterates that unless Plaintiff can show that the statute of limitations as to his Section 1983 action was tolled or has not yet expired, his action appears to be time-barred because he failed to bring the action within two years as required by Va. Code Ann. § 8.01-243(A).

Conclusion

Pursuant to the foregoing, the Court hereby ORDERS the following:

1. Herbert E. Taylor, III's motion to dismiss is hereby GRANTED. Dkt. 14. Plaintiff's claims against Taylor are DISMISSED without prejudice.

2. ACSD's and LPD's motion to dismiss is hereby GRANTED. Dkt. 16. Plaintiff's claims against ACSD and LPD are DISMISSED without prejudice.

3. P. Scott DeBruin's motion to dismiss is hereby GRANTED. Dkt. 32. Plaintiff's claims against DeBruin are DISMISSED without prejudice.

4. Finally, Plaintiff's motion to appoint counsel is DENIED as moot, though Plaintiff may request the Court to appoint counsel should he file a new complaint.

It is so ORDERED.

FOOTNOTES

1.   It also appears possible Plaintiff intended to challenge his underlying conviction on the grounds that he was afforded ineffective assistance of counsel by Taylor and DeBruin. Plaintiff may do this by filing a petition for habeas corpus under 28 U.S.C. § 2254(b)(1), but a Plaintiff must exhaust all state court remedies before filing a federal habeas corpus position under Section 2254. Furthermore, such a petition must be brought within one year of the final disposition of the underlying state criminal matter, which here would have been October 17, 2018, although this can be tolled while exhausting state court remedies. 28 U.S.C. § 2244(d)(2).The Court will not construe this action as a Section 2254 habeas corpus petition, but were it to do so, Plaintiff's complaint would still fail to state a claim. First, Plaintiff makes no allegation that he remains in custody. 28 U.S.C. § 2254(a). Second and more importantly, habeas claims for ineffective assistance of counsel are analyzed under the framework laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Plaintiff's complaint could be liberally construed as pleading deficient performance and prejudice under Strickland in a very conclusory fashion, but even if so construed, the complaint would entirely fail to raise his entitlement for relief beyond the speculative level.

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE