Turner v. Thomas, Case No. 3:17–cv–00064

• Decision Date: 29 May 2018
• Docket Number: Case No. 3:17–cv–00064
• Citation: 313 F.Supp.3d 704
• Parties: Robert Sanchez TURNER, Plaintiff, v. Al THOMAS, Jr., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

313 F.Supp.3d 704

Robert Sanchez TURNER, Plaintiff,

v.Al THOMAS, Jr., et al., Defendants.

Case No. 3:17–cv–00064

United States District Court, W.D. Virginia, Charlottesville Division.

Signed May 29, 2018

Andrew Ready Tate, Pro Hac Vice, Dallas S. LePierre, Pro Hac Vice, Mario Bernard Williams, Nexus Derechos Humanos Attorneys, Inc., Atlanta, GA, Jessica Nichole Sherman–Stoltz, Nexus Caridades Attorneys, Inc., Verona, VA, for Plaintiff.

David Patrick Corrigan, Douglas Edward Pittman, Jeremy D. Capps, Maurice Scott Fisher, Jr., Harman Claytor Corrigan & Wellman, Rita Poindexter Davis, Erin Rose McNeill, Office of the Attorney General of Virginia, Richmond, VA, John Walter Zunka, Richard Hustis Milnor, Taylor Zunka Milnor & Carter, LTD., Chartlottesville, VA, for Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

This case is before the Court on Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Robert Sanchez Turner ("Turner") alleges several claims for damages sustained at the August 12, 2017 "Unite the Right" rally. These claims are asserted against Defendants Al Thomas Jr. ("Thomas"), former Chief of the Charlottesville Police Department; W. Stephen Flaherty ("Flaherty"), Virginia State Police Superintendent; and the City of Charlottesville ("Charlottesville"). Plaintiff's claims share a common question: whether there is constitutional duty under the Fourteenth Amendment for the police to intervene to protect a citizen from criminal conduct by third parties. Because I find this duty is not "clearly established," his claims are barred by qualified immunity. Therefore, although Defendant Flaherty's jurisdictional argument under Rule 12(b)(1) fails, Defendants' motions to dismiss pursuant to Rule 12(b)(6) will be granted.

I. Standard of Review

Defendants bring motions pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). A motion to dismiss under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. The burden of proving subject matter jurisdiction rests upon the plaintiff.

Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). Thus, a court must dismiss a complaint which fails to allege facts that demonstrate subject matter jurisdiction.¹ Id.

"In ruling on a 12(b)(6) motion, a 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, Inc. v. Montgomery Cty., Md. , 684 F.3d 462, 467 (4th Cir. 2012) ; see also Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotation marks omitted). Stated differently, in order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

II. Facts as Alleged

In Charlottesville, Virginia, a statue of Confederate General Robert E. Lee stands in what was formerly called "Lee Park." (Compl. ¶¶ 6–8). In June 2017, Defendant Charlottesville changed the park's name to "Emancipation Park," ("the Park") and subsequently planned to sell the statue and have it removed. (Id. ¶ 7–8). In response, Jason Kessler, leader of the group "Unity & Security for America," organized the "Unite the Right" rally to protest the Park's name change and the decision to sell the statute. (Id. ¶ 10–11).

Kessler applied for, and was granted, a permit to hold a "free speech rally in support of the Lee monument" by the City. (Id. ¶ 12). Less than a week before the event, the City revoked Kessler's permit, citing traffic and safety concerns. (Id. ¶¶ 15–16, 21, 29). Allegedly, Kessler was initially promised that security measures would nevertheless remain in place for the revoked event. However, he was later informed that Defendant Thomas, as Chief of Police, allegedly "changed his mind" and would not provide any of the initially promised protections. (Id. ¶ 30).

Kessler then brought suit, challenging the permit's revocation on First and Fourteenth Amendment grounds, seeking injunctive relief. (Id. ¶ 32). U.S. District Judge Glen Conrad granted Kessler's request and reinstated the permit. Kessler v. Cty. of Charlottesville, Virginia , No. 3:17CV00056, 2017 WL 3474071 (W.D. Va. Aug. 11, 2017). Turner alleges that in response to Judge Conrad's ruling, Defendants Thomas and Flaherty became "enraged," and instituted a "special policy" for the protest, "ordering [their] officers to ‘stand down’ ...." (Id. ¶¶ 40–41, 44). This alleged "stand down" order mandated law enforcement to: "refrain from intervening in any violent confrontations between white supremacists and counter-protesters unless given a command to do so." (Id. ¶¶ 44–46). Turner alleges law enforcement followed this "stand down" order and even directly told counter-protesters they would "not intervene unless given a command to do so." (Id. ¶¶ 49–50).

It is alleged that on August 12, 2017, Turner went to the Park as a counter-protestor. (Id. ¶¶ 9–10, 52–53). As he allegedly protested peacefully on the sidewalk adjacent to the Park, "KKK members/sympathizers" exited the Park and began "to engage counter protesters who were on the sidewalk." (Id. ¶ 57). Police allegedly looked on as protesters, unprovoked, sprayed Turner in his eyes with mace, subsequently beat him with a stick, and threw bottles of urine at him. (Id. ¶¶ 54–55, 59, 64). He alleges that "Charlottesville Police and Virginia State Patrol officers stood and watched [this] for more than thirty seconds, while doing nothing to intervene." (Id. ¶¶ 58, 61–63).²

Turner now asserts several claims against Defendants premised on what is known as a "state-created danger" theory of liability. See generally DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Turner alleges Defendants Thomas and Flaherty, in their individual capacities, violated his substantive due process rights by failing to intervene in a state-created danger, under both direct (Count I) and supervisory (Count II) theories of liability. He also alleges Defendants acted with "deliberate indifference" towards his assault (Count IV) in violation of the Fourteenth Amendment. Lastly, he alleges that municipal liability extends to Defendant Charlottesville for violating his substantive due process rights (Count III). See generally Monell v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Turner also seeks punitive damages (Count V) and attorney's fees (Count VI).

III. Subject Matter Jurisdiction

Defendant Flaherty, as superintendent of the Virginia State Police, contends sovereign immunity bars the claims against him. Specifically, he argues the Court lacks subject matter jurisdiction over the supervisory liability claim, since it was alleged against him in his official capacity. (Dkt. 27 at ECF 12).

"[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citation omitted). Section 1983 "does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits ...." Id. at 66, 109 S.Ct. 2304. See also Seminole Tribe of Fla. v. Fla. , 517 U.S. 44, 64, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("[T]he Eleventh Amendment [stands] for the constitutional principle that state sovereign immunity limit[s] the federal courts' jurisdiction under Article III.").³ Unlike official capacity suits, suits brought against defendants in their individual capacities do not implicate sovereign immunity, as they "seek to impose personal liability upon a government official for actions he takes under color of state law." Kentucky v. Graham , 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (emphasis added).

Here, Turner specifically alleges in his Complaint that each claim is against Defendants Thomas and Flaherty in their "individual capacities." (Dkt. 1 at ECF 26–30). This express pleading is conclusive as to the capacity of Plaintiff's claims. Biggs v. Meadows , 66 F.3d 56, 61 (4th Cir. 1995) (holding that capacity can only be determined by the court when not specifically alleged in the complaint). Since the claims are against Defendants in their individual—and not official—capacities, Eleventh Amendment immunity is not implicated, and the Court has subject matter jurisdiction. Therefore, Defendant Flaherty's motion to dismiss under 12(b)(1) will be denied.

IV. Qualified Immunity

The individual Defendants argue they are entitled to qualified immunity, a doctrine that protects government officials from damages lawsuits when their actions did not violate clearly established law. Turner alleges Defendants Thomas and Flaherty deprived him of substantive due process under the Fourteenth Amendment by issuing "stand down" orders to their officers. These preemptive orders, he argues, resulted in law enforcement's failure to intervene to protect him from injuries at the hands of third party criminal actors, advancing what is known as a "state-created danger" theory of liability.

When determining whether a claim is barred by qualified...