Chien v. Virginia

• Decision Date: 28 August 2017
• Docket Number: Civil Action No. 1:17-cv-677
• Court: U.S. District Court — Eastern District of Virginia
• Parties: ANDREW CHIEN, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

ANDREW CHIEN, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

Civil Action No. 1:17-cv-677

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

August 28, 2017

Hon. Liam O'Grady

Hon. Theresa Buchanan

MEMORANDUM OPINION

This matter comes before the Court on numerous Motions to Dismiss filed by the Defendants in this action. (Dkt. Nos. 9, 12, 15, 19, 23, 27). For the reasons discussed below, the Court GRANTS Defendants' Motions.

I. BACKGROUND

Plaintiff filed the pro se Complaint in this matter on June 12, 2017. Dkt. No. 1. The background facts of this case as set forth in Plaintiff's 125-page Complaint are materially indistinguishable from those alleged in a related case Chien v. William K. Grogan, et al., 1:17-cv-358. The Court's Memorandum Opinion in that case provides a recitation of the underlying facts of this matter. See id., Dkt. No. 24. The only material difference in this matter is that the Complaint alleges counts against Defendant Karl S. Leonard, Defendant Judy L. Worthington, Defendant Mary E. Craze, Defendant Wendy S. Hughes, Defendant Frederick G. Rockwell III, Defendant Glen A. Huff, Defendant Donald W. Lemons, Defendant W. Allan Sharrett, Defendant Attorney General Mark R Herring, Defendant Commonwealth of Virginia, and Defendant Chesterfield County.

All of the Defendants have moved to dismiss the Complaint on various grounds. Defendants Wendy Hughes (Dkt. No. 9), Mary Craze (Dkt. No. 12), Judy Worthington (Dkt. No. 15); Karl Leonard (Dkt. No. 19),¹ and Chesterfield County (Dkt. No. 27) have moved to dismiss for failure to state a claim. Defendants the Commonwealth of Virginia together with Mark Herring, Glen Huff, Donald Lemons, Frederick Rockwell, and Allan Sharrett have moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Dkt. No. 23). Plaintiff has not responded to any of the motions. The Court took the matter under advisement without oral argument.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) permits the defendant to move for dismissal of a claim when the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The court must dismiss the action if it determines at any time that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Defendants may, as in this case, attack "the existence of subject matter jurisdiction in fact, quite apart from any pleading" because even with sufficient pleading, the district court could not have jurisdiction over the claim. White v. CMA Const. Co. Inc., F. Supp. 231, 233 (E.D. Va. 1996). The plaintiff bears the burden to establish that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The Court grants a Rule 12(b)(1) motion if the material jurisdictional facts are known and the moving party is entitled to prevail as a matter of law. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual information to "state a claim to relief that is plausibleon its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.' " Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, a complaint may survive a motion to dismiss "even if it appears 'that a recovery is very remote and unlikely.' " Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

III. DISCUSSION

The memorandum addresses each Defendant's Motion in turn.

A. Wendy Hughes - Failure to State a Claim

Defendant Hughes is the Clerk of Court for Chesterfield County Circuit Court. Plaintiff alleges six counts against her: (1) violation of Va. Code § 18.2-472 for tampering with Plaintiff's inmate records between November 2014 and June 2016; (2) perjury (no statutory basis provided); (3) violation of Va. Code § 18.2-472 for tampering with court records; (4) violation of Va. Code § 19.2-11 for serving orders of the Chesterfield County Court of Chancery on Plaintiff by mail instead of in person; (5) violation of 18 U.S.C. § 1959(a)(4) for threatening to commit acrime of violence in aid of a criminal enterprise; and (6) violation of 18 U.S.C. §§ 241-42 for illegally incarcerating Plaintiff.

Defendant Hughes contends that Plaintiff has failed to state a claim against Defendant as to any of these counts. Defendant Hughes argues that all of the counts, with the exception of Count 5, allege violations of the criminal code affording no civil cause of action to the Plaintiff. Defendant Hughes submits that even if Count 5 is construed as a claim for a civil violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Plaintiff has not plausibly pleaded the elements of that claim. Defendant Hughes also submits that to the extent Count 4 is an attempt to plead a due process violation pursuant to 42 U.S.C. § 1983, the claim is time-barred by the two year statute of limitations because the acts alleged occurred on or before April 29, 2015 and the Complaint was not filed until June 12, 2017. Finally, Defendant argues that any claims against Defendant Hughes in her official capacity are barred by the Eleventh Amendment and quasi-judicial immunity. The memorandum addresses these claims in turn.

1. No Civil Remedies

In order for a private right of action to arise out of the Virginia Code, the civil remedy must appear on the face of the statute. See Sch. Bd. of City of Norfolk v. Giannoutsos, 238 Va. 144, 147, 380 S.E.2d 647, 649 (1989) ("[When] a statute creates a right and provides a remedy for the vindication of that right, then that remedy is exclusive unless the statute says otherwise."). Virginia Code § 18.2-472 criminalizes false entries or destruction of records but does not provide a civil right of action. Count 3 (also § 18.2-472) and Count 4 (Va. Code § 19.2-11) also lack a civil remedy. To the extent that Plaintiff seeks to state a claim for perjury pursuant to VirginiaCode § 18.2-434, that statute does not confer a private right of action either.² Accordingly, all of these state law claims are dismissed.

The federal causes of action are similarly infirm. To the extent that Plaintiff seeks relief for his perjury claim pursuant to 28 U.S.C. § 1746 ("Unsworn declarations under penalty of perjury") this Court has previously held that code provision does not provide a civil cause of action. Allen v. City of Fredericksburg, No. 3:09CV63, 2011 WL 782039, at *7 (E.D. Va. Feb. 22, 2011). Similarly, Count 6 fails because "Plaintiff [] may not personally institute criminal proceedings or seek civil redress under 18 U.S.C. § 241." Iglesias v. Wal-Mart Stores East, L.P., No. 2:09CV8, 2009 WL 8760729, at *3 (E.D.Va. Oct. 26, 2009), aff'd, 375 F. App'x 364 (4th Cir. 2010); see also Walsh v. Logothetis, No. 3:13CV401-JAG, 2014 WL 229588, at *10 (E.D. Va. Jan. 21, 2014), aff'd, 578 F. App'x 227 (4th Cir. 2014). The only causes of action which arguably afford a civil remedy are Count 5, to the extent it alleges a civil conspiracy in violation of RICO, and Count 4, to the extent it sets forth a claim under 42 U.S.C. § 1983. Those counts nevertheless fail to state a claim for the reasons set forth below.

2. Civil RICO Claim

To state a claim for civil RICO, "[a] plaintiff must plead all elements of the alleged violation of section 1962 in order to state a civil claim under section 1964(c)." D'Addario v. Geller, 264 F. Supp. 2d 367, 388 (E.D. Va. 2003).³ "Thus, plaintiff must allege '(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.' Plaintiff must additionallyshow that (5) he was injured in his business or property (6) by reason of the RICO violation." Id. (quoting Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). Defendant Hughes contends that Plaintiff has failed to plausibly allege these elements.

Plaintiff alleges the RICO cause of action at ¶ 113(e) of the Complaint. Dkt. No. 1 at 92. Plaintiff asserts that the debt collection against him and his arrest for failing to comply with court orders were illegal and constitute racketeering offenses because they involve kidnapping, extortion, retaliation against a witness, and interference with commerce, among other things. Plaintiff alleges that Defendant Hughes and other agents of the courts of Virginia and Connecticut cooperated in order to fraudulently detain Plaintiff and collect against him.

Plaintiff's allegations fail to set forth a claim under RICO. While all factual allegations in the Complaint must be presumed true at this stage in the proceedings, the fraud allegations must nevertheless meet the heightened pleading requirements set forth in Rule 9(b) of the Federal Rules of Civil Procedure. Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir. 1989); see also Slay's Restoration, LLC v. Wright Nat'l Flood Ins. Co., 226 F. Supp. 3d 589, 593 (E.D. Va. 2017). The Complaint does not identify a pattern of particular...