David W. Boyce v. Thomas E. Bennett, et. al, No. 2:2014cv00249 - Document 263 (E.D. Va. 2015)
Court Description: OPINION AND ORDER granting in part and denying in part 165 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 167 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 169 Motion to Dismiss for Failure to State a Claim. As set forth above, the Court GRANTS in part, and DENIES in part, Defendants' Fox, Perkinson, and Gaddis' motions to dismiss Counts Two, Three, and Seven of the second amended comp laint. ECF No. 165, 167, and 169. Such motions are GRANTED with respect to Count Three (§ 1983 access to courts) and Count Seven (state-law gross negligence) and DENIED as to Count Two (§ 1983 conspiracy). The Court will revisit Defendants& #039; arguments as to the viability of the conspiracy claim set forth in Count Two based on the developed factual record after a hearing is conducted as part of the summary judgment process. As indicated above, such hearing will be conducted after Boyce has completed the supplemental discovery recently authorized by the Court. Signed by District Judge Mark S. Davis and filed on 11/9/15. Copies distributed to all counsel of record 11/9/15. (ldab, )
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David W. Boyce v. Thomas E. Bennett, et. al Doc. 263 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division DAVID W. BOYCE, Plaintiff, Civil No. v. THOMAS E. BENNETT, PATRICIA L. JAMES D. LYNN M. 2:14cv249 MONTGOMERY, FOX, PERKINSON, RICHARD H. and GADDIS, Defendants. OPINION AND ORDER This matter is before the Court on three motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants James D. Fox ("Fox"), ECF No. 165, Lynn M. Perkinson ("Perkinson"), ECF No. 169, Defendants").1 complaint ECF No. 167, and (collectively, Richard H. Gaddis "Defendants" or ("Gaddis"), "12(b)(6) Because the allegations in the second amended against the 12(b)(6) 1 Multiple summary judgment motions, Defendants are substantially including motions that have only recently become ripe, as well as other motions seeking other forms of relief, are currently pending before the Court. Such motions will be addressed by separate Order, with a summary judgment ruling being reserved until after oral argument is conducted. As Plaintiff has recently been authorized by the Court to conduct an additional deposition in this case, the summary judgment hearing will be scheduled for a date after such deposition has been completed. Dockets.Justia.com similar, instant as are the arguments Opinion and Order pending 12(b)(6) motions. in support collectively of dismissal, addresses all the three For the reasons set forth below, motions to dismiss are GRANTED in part, the and DENIED in part. I. Factual and Procedural Background The relevant factual and procedural background has been set forth in detail in previous Orders issued in this case, ECF Nos. 57, 103, and is incorporated by reference herein.2 arises out of David 1991 state-court Boyce's conviction ("Boyce" for or "Plaintiff") murder, which Boyce's imprisonment for twenty-two years. vacated resulted in Plaintiff initially filed suit against the City of Newport News, ("Bennett"), This action Thomas E. Bennett the lead Newport News Police detective that worked on Boyce's criminal case; Patricia L. Montgomery ("Montgomery"), a Newport News Police evidence technician; Newport News Police officers. The four John Doe defendants were later replaced by named Defendants Fox, Paul W. Haymes ("Haymes"). and four "John Doe" The claims Perkinson, against Gaddis, and the City of Newport News and Haymes have been dismissed and/or withdrawn. Taking the allegations in the second amended complaint as true for the purposes of the pending 12(b)(6) motions, Timothy Kurt Askew was stabbed to death in the early morning of May 19, 2 These prior Orders were issued by Senior United States District Judge Robert G. Doumar undersigned judge. before the instant case was reassigned to the 1990 in the Newport News Econo Lodge Motel. Second Am. Compl. I 45, ECF No. 115. On the same day as the murder, Plaintiff was questioned Newport by the News Police and either Bennett or someone at Bennett's direction took a Polaroid picture of Boyce ("the Polaroid"), 69-70. The who at the time had short hair. Polaroid was not provided to Boyce Id. 11 61, prior to or during his criminal trial, and Boyce was convicted in part on: (1) eyewitness testimony asserting that a person with shoulder- length hair was seen fleeing the scene of the murder; and (2) Montgomery's false testimony that Boyce had long hair when the police first interviewed him. Boyce was sentenced to Id. 1 70, 166-68. two life terms in prison and, continuing to assert his innocence, he pursued various forms of post-trial relief. filed state and conviction Id^ 11 187-93, federal overturned, habeas and 198-203. In 2005, petitions seeking federal petition his Boyce to have was pending resolution of the state proceedings. Id. conjunction stayed petition, submitted a with Boyce's subpoena to 2005 the state Newport habeas News 1 214. Police In 2006, Defendants Perkinson and Gaddis, supervision of Defendant Fox, and while all three In Boyce Department seeking the production of the criminal investigative file. II 214-15. his Id. under the assembled the file for production, Defendants were aware contained an envelope with numerous photographs, that to the file include the Polaroid depicting Boyce with short hair, produced. habeas Id. 11 217-20. petition, Boyce the Polaroid was not During the pendency of his state continued making requests Polaroid was reports the Id. 1 222. Polaroid, and it was finally produced in 2008. for The discovered by now dismissed Defendant Haymes, that it only took him about a minute to Polaroid in the police records box labeled "Boyce." In state turn 2010, court over (1963), following concluded the and a Polaroid evidentiary while was prosecution's a the violation that such violation guilty verdict, after of the hearing, Brady the failure v. to Maryland, undermined confidence in the Boyce's state habeas petition was untimely and relief was therefore unavailable. later, locate Id. 1 223. multi-day that who the conclusion IdL_ 11 225-27. of all state Three years habeas appeal proceedings, on March 19, 2013, Boyce's federal habeas petition was granted, and Boyce's conviction was vacated. Id. 1 240. Later that year, state prosecutors elected not to re-try Boyce. Id. 1 243. Boyce thereafter filed the instant action seeking civil damages pursuant to 42 U.S.C. § 1983 and various state law theories of recovery. The three motions to dismiss currently before the Court are filed by until 2006 requests Defendants when that they associated had no involvement participated with Boyce's in 2005 in responding state Boyce's to habeas case subpoena petition. The second amended complaint against such Defendants: ongoing conspiracy states three grounds claim alleging relief Count Two - a § 1983 claim alleging an to deny Boyce a constitutional including ongoing concealment of the Polaroid; 1983 for deprivation of access trial, Count Three - a § to the courts; Count Seven - a gross negligence claim under Virginia law. and The various arguments seeking dismissal of each of these claims are addressed below. II. Federal Rule of of a complaint, Standard of Review Civil Procedure 12(b)(6) permits dismissal or a claim within a complaint, based on the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) must be read in conjunction with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Civ. P. 8(a)(2), what the R. so as to "'give the defendant fair notice of . . . claim is and the grounds upon which it rests,'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The pleading United States standard set Supreme forth Court in Rule 8(a) has as interpreted requiring the that a complaint include enough facts for the claim to be "plausible on its face" and thereby "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." 570 is (internal citations omitted). "not more akin than Ashcroft 550 a at the possibility" 556 556). U.S. In when the court The plausibility requirement 'probability requirement, ' but Iqbal, plausibility allows a sheer v. U.S. to Id. at 555, that 662, other draw the defendant (2009) words, plaintiff to 678 a "[a] pleads 12(b)(6) is claim factual reasonable for liable. has the complaint without resolving factual disputes, facial content inference motion tests asks (quoting Twombly, defendant is liable for the misconduct alleged." Because a Rule it that that the Id. at 663. sufficiency of a a district court "'must accept as true all of the factual allegations contained in the complaint' of the and 'draw all reasonable inferences in favor plaintiff.'" Montgomery County, E.I, du 435, 440 Pont de (4th Kensington 684 Nemours Cir. F.3d 462, & Co. 2011)). v. Volunteer 467 the well-pled factual allegations as true, similarly accepted. U.S. at 555). determination as claim for relief" Iqbal, "whether is a Indus., court the a Dep't 2012) Inc., must v. (quoting 637 accept F.3d all legal conclusions are not 556 U.S. at 678 Applying to (4th Cir. Kolon While Fire above (citing Twombly, rules, complaint states 550 the ultimate a plausible "context-specific task that requires the reviewing court sense." Id. to draw on at 679 its judicial experience and common (citation omitted). III. Discussion A. § 1983 Conspiracy to Violate Constitutional Rights 1. Timeliness Defendants first argue that Boyce's civil conspiracy claim, which alleges violate that Boyce's (primarily Defendants participated due process rights through ongoing exculpatory Polaroid), and in right intentional a conspiracy to to a fair suppression trial of the is untimely as it was not filed within two years of the date on which the Polaroid was disclosed to Boyce. It is well-established that: (1) the Virginia two-year limitation period for personal injury actions applies to Boyce's § 1983 claims, Va. Code Ann. § 8.01-243(A); determines claims, the applicable statute of (2) while "state law limitations for § 1983 federal law governs the date on which that limitations period begins to run," Owens v. Baltimore City State's Attorneys Office, Kato, 767 54 9 F.3d U.S. 379, 3 84, 388 388 (4th Cir. (2007)); 2014) (3) (citing Wallace although the v. "standard rule" holds that § 1983 claims accrue "'when the plaintiff has a complete and present cause of action' plaintiff knows or standard rule does (quoting Wallace, has reason to not apply to all 549 U.S. at 388); . . . that is, when the know of § 1983 (4) his injury," claims, id. at such 389 "to determine the date of accrual for a particular § 1983 claim, the common-law tort § 1983 claim and that is most determine the a court must look to analogous date on to the plaintiff's which the limitations period for this most analogous tort claim would begin to run," id. (citing Wallace, common law, the prosecution claim brought 390 U.S. at 388); and (5) "[u]nder the limitations period for a plaintiff's malicious against referred to as 549 commences him the are when the resolved in [criminal] his proceedings favor," a concept "favorable-termination requirement," (citations omitted). Synthesizing the above, id. at when a § 1983 claim is most akin to a common law malicious prosecution claim, or otherwise depends on undercutting the validity of a prior state conviction, conviction "has such claim does been reversed on not accrue direct until appeal, the prior expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal Heck v. Humphrey, court's issuance of a writ of habeas corpus." 512 U.S. 477, 486-87 Here, (1994). because this Court finds that "the tort of malicious prosecution Brady-like . . . provides [conspiracy] the claim," closest federal analogy law to provides [Boyce's] that the limitations period for such claim began to run no earlier than the this date on which the writ of habeas corpus Richmond division (March 19, 2013). of Owens, Court issued a 767 F.3d at 390. Moreover, because the Fourth limitations period does not granted, in a As has held that begin running when a new trial the is but instead requires charges to be favorably terminated manner in limitations clock 18, Circuit which they "cannot be revived," id., the likely did not begin running until September 2013, when the state charges against Boyce were terminated. 12(b)(6) claim is utilized Defendants untimely for the do when not contend either limitations of the that above calculation, Boyce's conspiracy stated dates Defendants' are argument fails to justify dismissal of Count Two.3 3 Defendants cite an unpublished Fourth Circuit opinion decided years prior to Owens for the proposition that "favorable termination" is not an element of a § 1983 conspiracy claim. Wright v. Oliver, 99 F.3d 1133 (4th Cir. 1996) (table). Wright, however, appears to distinguish between claims alleging a conspiracy to violate Fourth Amendment rights, a conspiracy to obstruct justice, and "behavior constituting malicious prosecution," concluding that favorable termination was not required for the two conspiracy claims, but was required for the malicious prosecution claim. Id. Moreover, controlling case law establishes that a § 1983 conspiracy claim requires proof that the conspirators acted "in concert and that some overt act was done in furtherance of the conspiracy which resulted in [the] deprivation of a constitutional right," Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996) (emphasis added). Here, because the alleged conspiracy identifies the constitutional harm as the intentional (and ongoing) suppression of exculpatory evidence, and such constitutional violation, if proven, necessarily calls into question the validity of Boyce's state conviction, this Court is not persuaded that the broad language used in the unpublished Wright opinion extends to all § 1983 conspiracy claims, including those alleging conspiracies to commit Brady-like violations or malicious prosecution. See Robinson v. Maruffi, 895 F.2d 649, 654-55 (10th Cir. 1990) ("Not until the end of this second criminal trial, with Robinson's acquittal, did his malicious prosecution conspiracy claim accrue."); Rose v. Bartle, 871 F.2d 331, 352 (3d Cir. 1989) ("[I]f the plaintiffs' malicious prosecution claims did not accrue until favorable termination, it is difficult to see how a cause of action for conspiracy to prosecute maliciously could have accrued before that date."); Nieves v. McSweeney, 73 F. Supp. 2d 98, 104 (D. Mass. 1999) ("[P]laintiffs' 2. Adequacy of Factual Allegations Defendants sufficient next facts to argue state that a Boyce plausible fails claim to that advance Defendants participated in a conspiracy to deny Boyce a fair trial through, among other However, things, the suppressing amended the complaint includes assertions supplying circumstantial assertion that, among other exculpatory evidence abuses, Polaroid. numerous factual in support of the Polaroid the was intentionally withheld from Boyce for many years by Bennett and others at asserts of the Newport News that Defendants Police Department. Fox, Perkinson, the Polaroid in the criminal News Police Department, Boyce and Gaddis, further were aware file maintained by the Newport that they communicated with each other about the contents of such file, were aware of the importance of the Polaroid, and yet they failed to produce it in response to a subpoena. 421 See Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, (4th Cir. must be 1996) supported inference that a mutual (indicating that a § 1983 by facts that [the conspirators] understanding to try conspiracy claim "reasonably lead to positively or tacitly came to accomplish a common the to and unlawful plan"). causes of action for conspiracy to commit malicious prosecution did not arise, let alone accrue, until the underlying criminal proceedings were terminated in their favor."). 10 While advanced innocent by prevail at pled explanations 12(b)(6) the Defendants, sufficient violate circumstantial Boyce's and facts such conduct to conceal Accordingly, to have been explanations may Plaintiff has plausibly support the Defendants knowingly joined a conspiracy constitutional that they took steps Boyce.4 their summary judgment or trial stages, claim that the 12(b)(6) to for rights to a fair trial and the exculpatory Polaroid from Defendants' dismissal motions fail to demonstrate the inadequacy of the factual allegations. 3. Intracorporate Immunity Doctrine Defendants alternatively assert dismissed because Boyce alleges that Count Two should be a conspiracy only among individuals within the Newport News Police Department and that, with limited exceptions, a single entity and its employees are not legally capable of entering into a conspiracy. Inc. v. counters complaint Aboud, 313 F.3d 166, 179 (4th Cir. ePlus Tech., 2002). Boyce by highlighting the allegation in the second amended asserting individuals that "who were not the named Defendants employees of conspired the Newport News with Police 4 While 12(b)(6) Defendants appear to invite the Court to consider the fact that Boyce conducted substantial discovery prior to filing the second amended complaint, this Court's 12(b)(6) analysis is limited to the facts as alleged by Boyce, viewed in his favor. 11 Department, Boyce including, further the 12(b)(6) 15 years that argues but in Defendants' after the not limited opposition to [Herman] dismissal Elkins."5 that, because conspiratorial acts occurred more than conspiracy began, named or unnamed to conspirators a plausible were no claim exists longer employed by the Newport News Police Department in 2006 through 2008 yet they still played a part in the ongoing conspiracy. While it allegations existence appears that Defendants in the second amended of two discrete seek complaint conspiracies early 1990s between Elkins, Bennett, to as recast asserting (one occurring and Montgomery, second beginning in 2006 between Fox, Perkinson, in the the the and the and Gaddis), such characterization is not in line with this Court's 12(b)(6) obligation to construe the facts and reasonable inferences in Boyce's favor. favor, The second amended complaint, sufficiently asserts a single read in Boyce's far-reaching conspiracy aimed at depriving Boyce of a constitutionally legitimate trial in the early 1990s and continuing over time to both conceal the prior police misconduct and to continue Boyce from While it is involvement securing a undisputed in Boyce's constitutionally that case the until 2006, to to prevent legitimate 12(b)(6) seek (re)trial. Defendants Defendants had no cite no 5 Herman Elkins testified against Boyce at a preliminary state hearing and at Boyce's criminal trial, testifying guilt to Elkins while in state custody. 12 that Boyce confessed his authority that would absolve them from § 1983 liability if they are found to conspiracy have between joined a Bennett still and ongoing, Elkins. amended complaint not only alleges or "revived," Notably, that Bennett the second conspired with Elkins in the early 1990s to deprive Boyce of a fair trial, but further alleges that Bennett met with Elkins about Boyce's case approximately 15 years after Boyce was convicted. City of Boston, 657 F.3d 39, concealment of grease skids the conviction, material 49-50 evidence for false unarguably Cf. Haley v. (1st Cir. 2011) by the police, ("Deliberate designed testimony and encourage implicates a defendant's to wrongful due process rights"). As discussed above, by- case determination the as 12(b)(6) to standard requires a case- whether a complaint states a plausible claim, and, here, the Court finds that Boyce's second amended complaint meets such standard. The Court's case- specific determination in no way suggests that a typical § 1983 plaintiff may easily overcome the intracorporate immunity doctrine merely by naming a police informant/cooperator as a co conspirator. involvement assertion However, in that here, in light criminal proceedings Elkins recanted his of Elkins' against trial Boyce, extensive the testimony, factual and the factual assertion that Bennett and/or other officers had contact with Elkins years after Boyce's 13 trial and convinced him to modify his conduct in order to obstruct Boyce from securing a retrial, all color this Court's involved in the conspiracy.6 interpretation of the players Additionally, the ease with which the Polaroid was ultimately found in records maintained by the Newport News plausibility remained Police of the ongoing, provides claim or further that was a gloss conspiracy revived, in supporting involving the the Elkins mid-2000s.7 6 Judge Doumar's prior 12(b)(6) rulings, ECF Nos. 57, 103, constitute the "law of the case." are clearly erroneous, Boyce has not demonstrated that such rulings and this Court's analysis herein in no way seeks to undercut such rulings. TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009). As previously explained by Judge Doumar: (1) the absolute immunity enjoyed by trial witnesses precludes Boyce from recovering § 1983 damages based on Elkins' false testimony or the existence of a conspiracy to present false testimony; and (2) to avoid erosion of such immunity, Boyce cannot rely on false testimony as ECF No. circumstantial evidence in support of his Brady-like claims. 57, at 7-8. That said, Judge Doumar's prior rulings do not appear to squarely address the admissibility of pre-testimonial acts associated with the fabrication of evidence (to the extent applicable) , or post- testimonial acts years removed from trial testimony. Cf. Rehberg v. Paulk, 132 S. Ct. 1497, 1507 n.l (2012) (noting that while absolute witness immunity extends to conspiracies to testify falsely, it does not "extendi] to all activity that a witness conducts outside of the grand jury room," and is inapplicable when police officers "fabricate evidence concerning an unsolved crime"); Lisker v. City of Los Angeles, 780 F.3d 1237, 1242 (9th Cir. 2015) (distinguishing "conspiracies to testify falsely from 'non-testimonial' acts," such as "preventing witnesses from coming forward") (internal citations and quotation marks omitted). 7 The Court agrees with Defendants that the second amended complaint provides no direct link between Bennett/Elkins and the 12(b)(6) Defendants. However, although arguably a close call, when the second amended complaint is considered in its entirety, the Court finds that there are sufficient facts to support the plausible inference that, in order to conceal past misconduct by a fellow officer, in 2006, the 12(b) (6) Defendants knowingly joined a conspiracy aimed at continuing the non-production of an exculpatory Polaroid that was locatable in an investigative file maintained by the police. 14 easily Intracorporate immunity is therefore not available as a shield from liability at the 12(b)(6) stage.8 4. Qualified Immunity "Qualified immunity civil money damages] protects public officials from [a suit when the state of the law is such that they would not have known that their conduct violates statutory or constitutional omitted). rights." Owens, shown right, F.3d at 395 facts or that that (2) make out (1) a a plaintiff has violation at the right of was issue a (alternation citation in omitted). original) Here, (internal Defendants a public not alleged constitutional [not] established' at the time of its alleged violation." 96 (citations "To establish a qualified-immunity defense, official must demonstrate that or 767 'clearly Id. at 395- quotation jointly argue marks that and Boyce has not alleged a violation of a constitutional right, and that any such Defendant right Fox was not further clearly argues established. that because Additionally, he only had a supervisory role in the search for the Polaroid, his conduct did not violate a clearly established right. 8 Defendants contend in their reply briefs that they are shielded by intracorporate immunity unless there are allegations that they personally met with and directly conspired with Elkins. Such statement, unsupported by citations to case law, is uncompelling. Cf. Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir. 1990) (indicating that a plaintiff advancing a § 1983 conspiracy claim is not required to prove that all participants in the conspiracy knew each other or that they knew the precise contours of the illegal plan) (citations omitted); (7th Cir. Cameo Convalescent 1984) (same). Ctr. , 15 Inc. v. Senn, 738 F.2d 836, 841 The Court finds that the 12(b)(6) Defendants fail to demonstrate at this stage that they are shielded from liability on the conspiracy count based on qualified immunity. amended complaint Fox, alleges communicated communications) with that each all The second three Defendants, other (including including through written about the search for the Polaroid and knowingly conspired to hide such exculpatory evidence in order to obstruct Boyce's efforts to secure a constitutionally trial/retrial. Fourth Circuit precedent that, a by 1988, constitutional police law when evidence in bad faith." For all of officer he Id. adequate "unmistakably provides violates suppresses clearly material established exculpatory at 401. the reasons set forth above, Defendants' motion to dismiss Count Two of the second amended complaint is denied. B. § 1983 Deprivation of Access to Courts Defendants' allege facts access to the 12(b)(6) motions contend that Boyce fails to supporting an actionable claim for deprivation of courts (Count Three). As discussed below, such argument is well-founded because Boyce's own factual allegations demonstrate that he was not denied access to the courts by the actions of any of the 12(b)(6) Defendants. In Christopher v. Harbury, 536 U.S. 403, 414 (2002), the Supreme Court discussed the contours of the constitutional right to access to the courts, and distinguished 16 between litigation opportunities "already "yet to lost." endeavors to be Lost allege, gained" and opportunities, include the those which loss of opportunities is a opportunity to sue (such as when a Boyce settlement inadequate settlement of a meritorious civil case, an what or the loss of limitations period expires) , or the "loss of an opportunity to seek some particular order of relief," all of which look specific litigation ended poorly, "backward to a time when or could not have commenced, or could have produced a remedy subsequently unobtainable."9 (citations omitted). while the The Supreme Court further explained that, constitutional unsettled, Id. basis for lost access claims is both Supreme Court and Circuit precedent rest on the recognition that underlying claim, the lost access claim "is ancillary to the without which a plaintiff cannot have suffered injury by being shut out of court." Id. Accordingly, " [i] t follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint" alleging a lost access claim. required to recompense" available" "identify for the a lost Id. remedy access Moreover, that that may is a plaintiff is be "not awarded as otherwise as a remedy for a pending cause of action or as a 9 In contrast to litigation opportunities that have been lost, the "yet to be gained" opportunities are those where a prisoner or other litigant is presently being denied access and is seeking "to open the courthouse doors" for contemplated litigation. Christopher, 536 U.S. at 413. These situations include prisoners asserting a lack of access to the courts due to an inadequate law-library. Id. 17 remedy in "some suit that may yet be brought." Id. at 415-16, 421. Here, Boyce argues that the delayed production of the Polaroid had a negative impact on his state and federal habeas cases. However, Boyce's state habeas action, filed in 2005, was denied as untimely filed, and thus, the 2006 conduct of 12(b)(6) Defendants had no material bearing on its As to Boyce's federal habeas case, ultimate resolution. such case was resolved in Boyce's favor after the Polaroid was produced, and thus, Boyce does not plausibly state a lost or frustrated opportunity to access 805, the 825 federal (4th courts. Cir. 2012) claims require proof [the Appellants] ineffective Cook v. (recognizing Howard, that 'that the defendants' 484 "access F. to actions App'x courts foreclosed from filing suit in . . . court or rendered any (alterations See . . . remedy in original) [they] (quoting previously may have had'" Swekel v. City of River Rouge, 119 F.3d 1259, 1263-64 (6th Cir. 1997))); Estate of Smith v. Marasco, 318 F.3d 497, when a cover-up plaintiff's merits by 511 is attempted but claims the to be WL denial 225465, appropriate of at access *8 if (W.D. the 2003) court, Jan. cover-up 18 is and access W. v. Brankel, Mo. (explaining that is discovered fully developed unconstitutionally denied); 2015 (3d Cir. 16, No. 2015) exposed in time for addressed on has not a the been 13-3237-CV-S-DGK, ("[T]here in time is for no the plaintiff to F.3d 325, seek redress." 328-29 (7th Cir. While Boyce (citing Vasquez v. Hernandez, 60 1995))). argues that the federal habeas relief he ultimately obtained was unconstitutionally delayed based on the 12(b)(6) delay, Defendants' conduct, he fails to demonstrate absent some concomitant prejudice/injury, that such is sufficient to constitute the denial of a constitutional right to access the courts.10 See White v. White, (indicating that, 886 F.2d 721, to state a claim, 723 (4th Cir. 1989) the plaintiff must allege how a claimed delay "deprived him of meaningful access to the courts"); Pronin v. Johnson, No. 15-6534, (4th Cir. Oct. 7, 2015) (unpublished) 2015 WL 5833939, ("To prevail on a claim that he was denied access to the courts, must suffered demonstrate missing that he a court-imposed deadline an Casey, 518 Duckworth, while U.S. 343, 65 F.3d 555, 351-52 558-59 the Seventh Circuit's a [§ 1983 plaintiff] actual injury, or being unable complaint because of the Defendants' at *1 actions" (1996))); (7th Cir. see 1995) formulation of the such to file as a (citing Lewis v. also Gentry v. (explaining that applicable test 10 As Defendants argue, Boyce also fails to allege what degree of delay was directly attributable to the Notably, the evidentiary hearing in 12(b)(6) Defendants' conduct. the state habeas case was not conducted until two years after the Polaroid was ultimately produced. Accordingly, while common sense would suggest that the delayed production of the Polaroid had some impact on the timing of the resolution of Boyce's habeas cases, the facts in the second amended complaint do not effectively distinguish the delay linked to the Polaroid from other factors causing the state habeas process to take such a lengthy period of time. 19 requires proof of "interruption and/or delay" of litigation, such phrasing "does not mean that any delay is a detriment," and that "[r]egardless of the length of an alleged delay, a prisoner must show actual substantial prejudice to (emphasis added) omitted). state or In addition federal constitutional remedy (internal to habeas lost citations failing claim, "that may be awarded as and sufficient Boyce fails recompense" misconduct that is "not otherwise available" existing claim in this action. quotation to allege prejudice litigation access specific litigation") to to for marks to his support a identify a the alleged as a remedy on an Christopher, 536 U.S. at 415-16, 421. Boyce's second amended complaint also fails to adequately identify any other legal action or claim frustrated due to the 12(b)(6) and 2008. Defendants' that was lost or conduct between 2006 While the second amended complaint includes the broad assertion that the delayed production of the Polaroid prevented Boyce from pursuing actions "in the civil courts of the Commonwealth of Virginia seeking redress and compensation for Defendant officers' wrongful conduct," ECF No. 115 1 288, such vague assertion is insufficient to state a plausible right to relief. See Fennell v. at *4 (E.D. Va. May 31, Allen, 2011) No. 3:09CV468, 2011 WL 2144560, ("[I]n order to plead a backward- looking denial of access to the courts claim, 20 a plaintiff must identify, with specificity, a non-frivolous legal claim that the defendant's underlying actions legal prevented claim must him be from stated Federal Rule of Civil Procedure 8(a), independently 536 U.S. pursued'" litigating," (emphasis just as added) such accordance "'in and with if it were being (quoting Christopher, at 417)). In sum, even assuming that 12(b)(6) Defendants joined the conspiracy in 2006 to knowingly violate Boyce's constitutional rights, Boyce's state and federal habeas petitions were already pending at that time and both petitions were not resolved until after the Polaroid was produced to Boyce in 2008. Accordingly, there is no plausible allegation that the resolution of either habeas case was negatively impacted by the delayed production of the Polaroid. action lost, or Additionally, claim that could Boyce fails to identify any other have been filed in 2006, but was forfeited, or otherwise permanently hindered because the Polaroid was production not produced alleged by Boyce until 2008. While the could plainly support damages with respect to Boyce's other § 1983 claims, delay in additional including his conspiracy claim, Boyce fails to plead facts that support an independent constitutional access to the courts. the 12(b)(6) claim grounded in the denial of Boyce's denial of access claim against Defendants is therefore dismissed. 21 C. Gross Negligence Defendants' 12(b)(6) motions contend that Boyce fails to allege facts supporting an actionable claim for gross negligence under Virginia law (Count Seven). As argued by Defendants, this Court finds it appropriate to incorporate herein Judge Doumar's prior 12(b)(6) against Bennett No. 57, Corp., at court coordinate "should TFWS, when (1988) be Inc. a that court law of v. Colt the to revisit absence Franchot, "[t]he decides law upon as ECF Operating a rule, decisions of 572 claims case." Indus. (explaining that, the v. gross-negligence "the loathe" "in (explaining that Boyce's Christianson 817 court 2009) posits see 800, circumstances"); Cir. of and Montgomery as 9-12; 486 U.S. federal analysis of a a extraordinary F.3d 186, 192 of the doctrine a rule case of (4th law, that decision should continue to govern the same issues in subsequent stages in the same case" prior decision was unless, among other exceptions, "clearly erroneous the and would work manifest injustice," in that it was "wrong with the force of a five-week- old, unrefrigerated dead fish") citations rulings, omitted). 12(b)(6) (internal quotation marks and Consistent Defendants' with motions to Judge Doumar's dismiss the prior state-law gross negligence claims are granted. Judge Doumar previously dismissed similar state-law gross negligence claims asserted by 22 Boyce against Bennett and Montgomery based on his legal finding that Boyce failed to identify a duty under Virginia law "not to be grossly negligent" by "concealing evidence" or "failing to alleviate the harm . . . by refusing to turn over . . . evidence." ECF No. 57, at 10. For the purposes of this case, the undersigned Judge adopts such prior legal finding regarding the lack of a viable state-law "gross negligence" cause of action against a city police officer for negligent investigation investigative materials. Doumar's prior ruling and/or Boyce fails was clearly negligent production to demonstrate that Judge erroneous, and provides further support for Judge Doumar's analysis. v. McDorman, a 820 F. Supp. 1001, 1008 (W.D. Va. 1992) "willful and wanton negligence" claim because had "cited no authority for the existence, of a duty upon police officers conducting investigations," detective's conduct to of exercise case law See Lewis (dismissing the plaintiff under Virginia law, reasonable care in further explaining that the police "either amounted to malicious prosecution, with its constitutional effects, or it was not actionable under Virginia law"); Durham v. Horner, 759 F. Supp. 2d 810, 815 (W.D. Va. 2010) of ("Virginia law recognizes no [gross negligence] cause action against police officers for conducting investigations .").X1 Boyce's citations to a Virginia case addressing negligence claims outside of the police investigation 23 context is insufficient to In adopting Boyce's Judge efforts to Doumar's finding, distinguish the between rejects negligent a Court initial investigation and subsequent negligence associated with a police investigative prior file. ruling associated ECF No. was with not the 179, at limited initial 27 to n.4. Judge dismissing investigation, but Doumar's allegations also dismissed Boyce's claim that Bennett and Montgomery were grossly negligent by failing to alleviate prior concealment "refusing to turn over that evidence." Orig. Compl., ECF No. claim against Bennett claimed duty evidence] requested") to to the 1 1 313 and "turn[] proper (emphasis ECF No. through 57, at 10; see based, in [exculpatory and parties added). evidence (asserting a gross negligence Montgomery over of as required Boyce's negligence claims against the 12(b)(6) part, on a impeachment and/or state-law when gross Defendants are therefore dismissed based on the law of the case. demonstrate that Judge Doumar's prior ruling is clearly erroneous. See First Virginia Bank-Colonial v. Baker, 225 Va. 72, 79 (1983) (discussing tort-liability of a clerk of court). Notably, state court actions for malicious prosecution "arising from a criminal case" are "not favored" under Virginia law, and the requirements are "more stringent than those applied to other tort actions," Ayyildiz v. Kidd, 220 Va. 1080, 1082 (1980), which at a minimum suggests a reason why Virginia courts may treat investigative tort actions against police officers differently. Because recognizing a tort action for a "negligent police investigation" or "negligent police maintenance of investigative records," would conceivably undercut the heightened requirements of malicious prosecution actions, Boyce's citation to Baker fails to demonstrate clear error in the prior ruling. 24 IV. As set forth above, part, Defendants' Counts ECF Two, No. the Court GRANTS in part, Fox, Perkinson, Three, 165, Conclusion and 167, Seven and and Gaddis' motions to dismiss the of 169. amended Such second motions are respect to Count Three (§ 1983 access to courts) (state-law gross negligence) conspiracy). the based on and DENIED as the of the conspiracy developed factual claim set record complaint. GRANTED with and Count Seven to Count Two The Court will revisit Defendants' viability and DENIES in (§ 1983 arguments as to forth after in a conducted as part of the summary judgment process. Count hearing Two is indicated such hearing will be conducted after Boyce has above, As completed the supplemental discovery recently authorized by the Court. The Clerk is REQUESTED Order to all IT IS SO counsel of to send a copy of this Opinion and record. ORDERED. /s/i Mark UNITED Norfolk, Virginia November R , 2015 25 STATES S. Davis DISTRICT JUDGE
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