Nazario v. Gutierrez, Civil Action 2:21CV169 (RCY)

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtRoderick C. Young United States District Judge
PartiesCARON NAZARIO, Plaintiff, v. JOE GUTIERREZ, in his personal capacity, and DANIEL CROCKER, in his personal capacity, Defendants.
Docket NumberCivil Action 2:21CV169 (RCY)
Decision Date02 February 2022


JOE GUTIERREZ, in his personal capacity, and DANIEL CROCKER, in his personal capacity, Defendants.

Civil Action No. 2:21CV169 (RCY)

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

February 2, 2022


Roderick C. Young United States District Judge

This matter is before the Court on three motions: (1) Defendant Gutierrez's Motion to Dismiss Count IV (ECF No. 15), (2) Defendant Crocker's Motion to Dismiss Count IV (ECF No. 19), and (3) Plaintiff's Motion to Find Defendant Gutierrez's Answer Deficient (ECF No. 23). The motions have been fully briefed, and the Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons stated below, the Court will deny Defendant Gutierrez's Motion to Dismiss Count IV (ECF No. 15), deny Defendant Crocker's Motion to Dismiss Count IV (ECF No. 19), and deny Plaintiff's Motion to Find Defendant Gutierrez's Answer Deficient (ECF No. 23).


The Court recounts the relevant facts as alleged in the Complaint. This action arises from a traffic stop involving Caron Nazario (“Plaintiff”) and two police officers employed by the Town of Windsor, Joe Gutierrez and Daniel Crocker (“Defendants”). (Compl. ¶ 2, ECF No. 1.) Plaintiff is a Second Lieutenant in the United States Army Medical Corps, and he is of Latinx and African


American descent. (Id. ¶ 9.) On or about December 5, 2020, at approximately 6:34 p.m., Plaintiff was driving through the Town of Windsor, Virginia, in his newly purchased 2020 Chevrolet Tahoe. (Id. ¶ 13.) The Department of Motor Vehicles had not yet issued permanent plates for the vehicle, so Plaintiff had a cardboard temporary plate taped on the inside rear window. (Id.) Defendant Crocker initiated a traffic stop of Plaintiff by activating his emergency lights and siren. (Id. ¶ 14.) Defendant Gutierrez then joined in the pursuit. (Id.)

Plaintiff put on his turn signal and slowed down, but he did not pull over immediately. (Id. ¶¶ 15-16.) Instead, he waited to pull over until he arrived at a well-lit BP gas station approximately a mile down the road. (Id. ¶ 16.) When the cars stopped, Defendants exited their vehicles and trained their firearms on Plaintiff. (Id. ¶¶ 19, 23-24.) Plaintiff repeatedly asked the officers “What's going on?” and asked why they had their guns drawn (Id. ¶ 23, 25.) Defendants ordered Plaintiff to put his hands outside of his car window, he complied, and later demanded that Plaintiff exit his vehicle. (Id. ¶ 26.) At one point, Defendant Gutierrez warned Plaintiff that he was “fixin' to ride the lightening” by not obeying their orders to exit the vehicle. (Id. ¶ 28.) Plaintiff told Defendants that he was afraid to leave the vehicle to which Defendant Gutierrez responded, “Yeah, you should be.” (Id. ¶¶ 33-34.)

After several more commands to leave the vehicle, Defendant Gutierrez sprayed Plaintiff with Oleoresin Capsicum (“OC”) spray multiple times. (Id. ¶¶ 25-28, 32-39.) Defendant Gutierrez then told Plaintiff that if he did not exit the vehicle, he would be sprayed again. (Id. ¶ 43.) Defendant Gutierrez removed Plaintiff from the vehicle, forced him onto his stomach, and handcuffed him. (Id. ¶¶ 44-46, 48.)

After handcuffing him, Defendants sat Plaintiff on a trashcan and began to talk to him. (Id. ¶ 48.) Defendant Crocker at one point entered Plaintiff's vehicle and searched for a firearm that Plaintiff said was in the vehicle. (Id. ¶¶ 52-53.) Once Defendant Crocker located the firearm, he


radioed the serial number back to dispatch, who reported that the firearm was not stolen. (Id. ¶ 54.)

The parties continued their conversation during which Defendant Gutierrez stated that he understood why Plaintiff waited until a well-lit area to stop and that it “happens all the time.” (Id. ¶ 55.) After calling the Chief of Police, Defendant Guiterrez gave Plaintiff a choice: he could either be arrested and “fight it . . . which is [his] rights as a citizen” or he could “chill and let [it] go.” (Id. ¶ 56; Compl. Ex. 5 at 04:20-6:57, ECF No. 1-2.) Plaintiff chose not to be arrested. (Compl. Ex. 5 at 7:40-9:00.)

After the traffic stop, both Defendants wrote narratives of the event for their official records. (Compl. ¶ 58.) In these narratives, they alleged that Plaintiff's vehicle had no license plate displayed, Plaintiff disregarded Defendant Crocker's lights and siren, Plaintiff did not comply with orders and was actively resisting, Plaintiff assaulted Defendant Gutierrez, and Defendant Gutierrez gave Plaintiff a warning before spraying him with OC spray. (Id. ¶¶ 60-63.)


Plaintiff filed his Complaint on April 2, 2021. (ECF No. 1.) On April 16, 2021, this action was reassigned from Judge Robert G. Doumar to the undersigned. On May 14, 2021, Defendant Gutierrez filed a Partial Motion to Dismiss the Complaint. (ECF No. 15). Defendant Gutierrez also filed his Answer and Affirmative Defenses to Plaintiff's Complaint. (ECF No. 17). On May 17, 2021, Defendant Crocker filed a Partial Motion to Dismiss Plaintiff's Complaint. (ECF No. 19.) Defendant Crocker also filed an Answer. (ECF No. 20.) The parties fully briefed each of the Partial Motions to Dismiss. (ECF Nos. 16, 27, 32-33.) On May 23, 2021, Plaintiff filed a Motion to Find Defendant Gutierrez's Answer Deficient and to Deem Specified Paragraphs Admitted. (ECF No. 23.) The parties briefed the Motion. (ECF Nos. 24, 30.)



A. Legal Standard

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). Dismissals under Rule 12(b)(6) are generally disfavored by the courts because of their res judicata effect. Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1471 (4th Cir. 1991). Federal Rule of Civil Procedure 8 only requires that a complaint set forth “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” “detailed factual allegations” are not required in order to satisfy the pleading requirement of Federal Rule 8(a)(2). Id. (citations omitted). “[A] motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's well-pleaded allegations are assumed to be true, and the complaint is viewed in the light most favorable to the plaintiff. Id. (citations omitted); see also Martin, 980 F.2d at 952.


B. Discussion

Defendants have moved to dismiss Count IV of Plaintiff's Complaint which alleges First Amendment retaliation under 42 U.S.C. § 1983. (See Compl. ¶¶ 97-104.) First Amendment retaliation claims have three elements: (1) the plaintiff engaged in constitutionally protected First Amendment activity; (2) the defendant took an action that adversely affected that protected activity; and (3) there was a causal relationship between the plaintiff's protected activity and the defendant's conduct. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686-87 (4th Cir. 2000); Blankenship v. Manchin, 471 F.3d 523, 528 (4th Cir. 2006); Roncales v. Cty. of Henrico, 451 F.Supp.3d 480, 495 (E.D. Va. 2020).

1. Plaintiff Engaged in Constitutionally Protected Speech

It appears that Defendants are not disputing this element. In their brief, Defendants state, “[a]s to the first element, it is widely accepted that a citizen's right to ‘petition the Government for redress of grievances' is protected under the First Amendment. Defendant makes no argument to the contrary . . ..” (Mem. Supp. Mot. Dismiss at 4, ECF No. 16) (internal citations omitted).

The right to petition the Government for redress of grievances is “one of ‘the most precious of the liberties safeguarded by the Bill of Rights.'” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine Workers v. Illinois Bar Ass'n, 389 U.S. 217, 222 (1967)). Alleging retaliation for exercising one's right to petition for redress of grievances is a sufficient basis for a First Amendment retaliation claim. See Lozman c. City of Riviera Beach, 138 S.Ct. 1945, 1954-55 (2018). Plaintiff's claim is also based on the freedom of speech. (See Mem. Opp'n Mot. Dismiss at 6, ECF No. 27.) “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). As such, Plaintiff has plead facts sufficient to establish this element.


2. Defendants Took Action that Adversely Affected Plaintiff's Protected Speech

Defendants' central argument is that the Plaintiff makes “no allegation that Defendants' conduct resulted in any injury that could have discouraged or affected Plaintiff from engaging in the protected activity.” (Mem. Supp. Mot. Dismiss at 4.) If there is no retaliatory action, there can be no adverse effect on protected speech. (Id. at 5.) Plaintiff argues that the threat to detain him and charge him with multiple crimes is the action and the chilling of speech is the adverse effect. (Mem. Opp'n Mot...

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