Deegan v. Rudman

• Decision Date: 26 January 2011
• Docket Number: Civil Action No. 3:10-cv-00016
• Court: U.S. District Court — Western District of Virginia
• Parties: Michael L. Deegan, Plaintiff, v. Nicholas Rudman, III, et al., Defendants.

Michael L. Deegan, Plaintiff,

v.Nicholas Rudman, III, et al., Defendants.

Civil Action No. 3:10-cv-00016

United States District Court

For the Western District of Virginia

Charlottesville Division

Filed: January 26, 2011

memorandum opinion

Judge Norman K. Moon

The pro se Plaintiff paid the filing fee and filed the instant complaint seeking, inter alia, "to remedy egregious and unconscionable violations of the 4^th, 6^th, and 14^th Amendments of the U.S. Constitution pursuant to 42 U.S.C. § 1983 Civil Action for Depravation [sic] of Constitutional Rights and multiple acts of Illegal Wiretapping U.S.C. 18 § 2511 [sic]." The crux of the complaint is that law enforcement officers videotaped Plaintiff in an interrogation room at the Charlottesville Police Department while he conducted a telephone conversation with his criminal defense attorney. The matter is before me now on Defendants'¹ motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which have been briefed and are ripe for disposition.² As explained herein, the alleged conduct amounts to a constitutional violation only if the subject is prejudiced in the defense of his criminal case, and Plaintiffaffirmatively states that he was acquitted in his criminal trial; accordingly, Plaintiff fails to state a claim under the Sixth Amendment, and the other legal theories he asserts have no application under the facts he alleges in his complaint. For these reasons, Defendants' motions to dismiss will be granted, and the complaint will be stricken from the court's active docket.

I.

On January 29, 2008, Plaintiff was arrested in Charlottesville after an altercation with another man at the apartment of a female acquaintance. Plaintiff states that Defendants charged him with malicious wounding, but that he was tried and "acquitted of all charges" on October 23, 2008. Plaintiff adds that, "[o]ther than the fact that he was charged without probable cause to begin with, [he] had no quarrel with the trial itself."

Plaintiff complains that, on April 10, 2008, the day of his preliminary hearing, he learned that, while he "was in custody for questioning in the Charlottesville Police interrogation room"-presumably on January 29 or 30, 2008-Defendants "had monitored and videotaped his phone conversation to this then attorney." Plaintiff maintains that he had declined to answer a detective's questions and had "specifically requested to speak to his attorney...." Plaintiff contends that Defendants "proceeded to make at least one copy of the illegally obtained illegal video wiretap" and distributed at least "one copy of the feloniously obtained illegal video wiretap to the Charlottesville Commonwealth Attorney's Office." In support of his complaint, Plaintiff submitted a copy of the video (which I have viewed). Plaintiff adds that, at his trial on October 23, 2008, he learned that a detective had informed the alleged victim of Plaintiff's name and had instructed the alleged victim "to use that name" to identify Plaintiff.

The complaint states that Defendants' actions "violated the Federal statute governing Illegal Wiretapping 18 U.S.C. § 2511 [sic] and the 4^th, 6^th, and 14^th Amendments of the US Constitution and state laws...." The complaint enumerates the following four counts: "DELIBERATE INDIFFERENCE" to Plaintiff's "constitutional and civil rights"; violations of Plaintiffs "RIGHT TO PRIVACY"; "OUTRAGEOUS CONDUCT" that was "brutal, demanding and shocking to conscience [sic]"; and "INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS." Plaintiff seeks an assortment of damages "for the pain, suffering, emotional distress, humiliation and damages to reputation and livelihood" he has "endured." The pro se Plaintiff also seeks costs and "reasonablr [sic] attorneys' fees."

II.

Regarding motions to dismiss, I accept as true the facts alleged in the complaint, applying the pleading standard established by Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.___, 129 S. Ct. 1937 (2009). See also Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 8. Plaintiffs must allege facts that "state a claim to relief that is plausible on its face, " i.e., facts that "have nudged their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. A claim is plausible if the complaint contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " and if there is "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at___, 129 S. Ct. at 1949.³

III.

As previously mentioned, the complaint was submitted with a copy of the video, to which Plaintiff refers throughout, and the complaint and Plaintiff's response in opposition to the motions to dismiss were submitted with several attachments, presumably as exhibits in support.⁴When dismissing a complaint for failure to state a claim upon which relief may be granted, courts may consider exhibits attached to the complaint. Sec'y of State v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Where a conflict exists between "the bare allegations of the complaint and any attached exhibit, the exhibit prevails." United States ex rel. Constructors, Inc. v. Gulf Ins. Co., 313 F. Supp. 2d 593, 596 (E.D. Va. 2004) (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)); see also Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated and remanded on other grounds, 517 U.S. 1206 (1996). Although as a general rule extrinsic evidence is not considered at the 12(b)(6) stage, when a defendant attaches a document to its motion to dismiss, "a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity." Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir.1999)). Here, the extrinsic evidence has not been submitted by Defendants; rather, it has been submitted by Plaintiff, and is explicitly integral to and referenced by Plaintiff's complaint. Furthermore, "a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed. App'x 395, 396-97 (4th Cir. 2006); see also Gasner v. Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995) (permitting district court to take judicial notice of public documents, such as court records, even when the documents are neither referenced by nor integral to plaintiff's complaint). In any event, the extrinsic evidence Plaintiff has submitted merely provides a background for his factual allegations. Accordingly, under the circumstances it is not necessary to convert the instant motions to dismiss into motions for summary judgment.

IV.

Plaintiff asserts that the video recording (with audio of his end of the conversation) of hisuse of an officer's cell phone to telephone an attorney while he was held in custody in an interrogation room at the Charlottesville Police Department establishes a Sixth Amendment claim based on an invasion of the attorney-client relationship. Plaintiff's submissions in support of his complaint include an excerpt from a "Command Standard Operational Procedure Order, " which mandates, as a security and safety measure, "constant monitoring of the arrestee or prisoner, " and that "[t]he observation may include video observation." Given these standard operating procedures, and that the interrogation room is outfitted with video and audio monitoring, it is clear that such video and audio monitoring and recording of persons held in the interrogation rooms at the Charlottesville Police Department is routine.

In any event, it is apparent from the video that officers ceased questioning Plaintiff when he invoked his right to counsel, and Plaintiff's end of the conversation with an attorney did not disclose any information that could be used against him. Indeed, Plaintiff affirmatively alleges that he was acquitted of the criminal charge. "[I]t is well settled that some showing of prejudice is a necessary element of a Sixth Amendment claim based on an invasion of the attorney-client relationship." United States v. Chavez, 902 F.2d 259, 266 (4th Cir. 1990) (citations omitted); United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007) (quoting Chavez); see also Weatherford v. Bursey, 429 U.S. 545, 552-59 (1977) (prosecution knowingly permitted undercover agent to attend two meetings between plaintiff and counsel; because no evidence was of prejudice to plaintiff, there was no violation of the Sixth Amendment); United States v. Jenkins, 178 F.3d 1287 (4th Cir. 1999) (unpublished table decision), 1999 WL 285910 (no prejudice, and thus no Sixth Amendment claim, because there was no showing that the government derived evidence from a videotape recording in a County Sheriff's office of a private conference between defendant and his attorney). Because Plaintiff does "not allege any prejudice, " and there is no "prejudice clear from the record, there was no Sixth Amendment violation." Allen, 491 F.3d at 192; Lewis v. Casey, 518 U.S. 343, 349 (1996) (in order to establish a violation of the Sixth Amendment right to counsel, plaintiff must demonstrate that he suffered actual harm); White v. White, 886 F.2d 721, 723-724 (4th Cir.1989) (same); Engel v. Francis, Civil Action No. 3:09-cv-359, 2010 WL 3894118, at *3 (E.D. Va. October 4, 2010) (county jail policy of monitoring all phone calls, including calls to attorneys, did not establish a Sixth Amendment violation; plaintiff could not plead any actual injury, could mail letters to his attorney, and the complaint did not suggest that he was denied confidential personal visits with...