Veney v. Ojeda

• Citation: 321 F.Supp.2d 733
• Decision Date: 15 June 2004
• Docket Number: No. 1:03 CV 1410.,1:03 CV 1410.
• Parties: Andre Timothy VENEY, Plaintiff, v. F.J. OJEDA and Earl Jones, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

Page 733

321 F.Supp.2d 733

Andre Timothy VENEY, Plaintiff, v. F.J. OJEDA and Earl Jones, Defendants.

No. 1:03 CV 1410.

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

June 15, 2004.

Daniel J. Travostino, Daniel J. Travostino PC, Leesburg, VA, for Plaintiff.

Julia Bougie Judkins, Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

In this action, plaintiff brings claims of (i) illegal seizure and excessive use of force under 42 U.S.C. § 1983 against defendants F.J. Ojeda and Earl Jones, officers of the Leesburg, Virginia Police Department and (ii) assault and battery, intentional infliction of emotional distress, and false arrest under Virginia common law solely against defendant Jones. Defendants seek summary judgment pursuant to Rule 56, Fed.R.Civ.P., on the grounds (i) that defendants are entitled to qualified immunity and (ii) that on the basis of undisputed facts, defendant Jones is entitled to judgment as a matter of law on plaintiff's claims of conspiracy, intentional infliction of emotional distress, and violation of the Eighth and Fourteenth Amendments.

For the reasons that follow, defendants' motion must be granted in part and denied in part. It must be granted with respect to plaintiff's claims (i) that Officers Ojeda and Jones violated plaintiff's Fourth Amendment rights when they initiated the traffic stop, directed plaintiff to exit the vehicle, and attempted to conduct a pat-down search of plaintiff, (ii) that Officers Ojeda and Jones conspired to violate plaintiff's Fourth Amendment rights, and (iii) that Officer Jones intended to and did inflict emotional distress on plaintiff in violation of Virginia common law. It must be denied in all other respects because there are disputed issues of fact on the questions of excessive use of force and probable cause for arrest.

I.

On the afternoon of April 15, 2003, plaintiff Andre Timothy Veney, a twenty-one-year-old African-American male, was traveling as a passenger in a vehicle driven by Candace Ives, a white female, on Edwards Ferry Road in Leesburg, Virginia. Also traveling with plaintiff and Ives were two African-American males — Andre Thomas Veney, plaintiff's cousin,¹ and Christopher Newell. While patrolling the area at approximately 2:30 p.m., Officer F.J. Ojeda of the Leesburg Police Department observed Ives's vehicle traveling at speeds of up to forty miles per hour in a twenty-five mile per hour zone. After pacing the vehicle for approximately one-third of a mile to confirm the vehicle's excessive speed, Officer Ojeda activated his emergency lights to initiate a traffic stop. Ives responded appropriately by pulling over in the parking lot of a convenience store on Heritage Way. While plaintiff disputes that Officer Ojeda initiated the traffic stop because Ives was speeding, plaintiff, Andre and Newell concede that they do not know how fast Ives was traveling, nor were they aware of the speed limit in that area.

Before approaching the vehicle on foot, Officer Ojeda initiated a call for back-up because the vehicle was occupied by four individuals and because he observed Andre and Newell, who were seated in the back seat of the car, glancing at him through the rear window and reaching under the back seats.² Officers Earl Jones and Corey Smith, also of the Leesburg Police Department, responded to the call and, shortly thereafter, arrived at the scene. Officer Jones assisted Officer Ojeda in effecting the stop, while Officer Smith's role was limited to providing additional security at the scene.

As Officer Ojeda approached the driver's side window to advise Ives of the speeding violation and to ask for her license and registration, he states he smelled a faint odor of marijuana inside the vehicle. Plaintiff, Ives, Andre, and Newell all deny that they or anyone else had smoked marijuana either inside the vehicle or before entering it. Because Officer Ojeda suspected that either Ives or one of her passengers had been smoking marijuana, he requested that Ives exit the vehicle. Ives complied and in response to further questions, she denied that she or any of her passengers had weapons or drugs in the vehicle, but stated that she often permitted others to use the vehicle and believed she could not be held responsible for anything other individuals might have used or brought into the vehicle. At Officer Ojeda's request, Ives consented to a search of the vehicle and Officer Ojeda then asked plaintiff, Andre, and Newell to exit the vehicle so that he and Officer Jones could search the vehicle.

As directed, Andre and Newell exited the vehicle and were patted down by Officer Ojeda. Plaintiff, however, remained in the vehicle and Officer Ojeda testified that he observed plaintiff reaching to the floorboard of the vehicle, but could not discern what plaintiff was reaching for on the floorboard. Officer Ojeda again asked plaintiff to exit the vehicle. This time plaintiff complied; he exited the vehicle while talking on a cell phone. Plaintiff, Ives, Andre and Newell testified that plaintiff was using the cell phone to call his father to obtain assistance with respect to the traffic stop.

Once plaintiff exited the vehicle, Officer Jones directed him to the rear of the vehicle so that the officer could conduct a pat-down search of plaintiff. Plaintiff complied and went to the rear of the vehicle. At this point, the parties' versions of the events diverge. According to Officer Jones, plaintiff refused several times to place his hands on the trunk of the vehicle as directed and that once plaintiff was in position for Officer Jones to conduct the pat-down search, Officer Jones saw plaintiff's hands moving toward plaintiff's waistband causing the officer to believe that plaintiff might be reaching for a weapon. Officer Jones states he could not tell whether plaintiff actually had a weapon because plaintiff was dressed in baggy clothing. Officer Jones also states that he observed that plaintiff appeared to be "sizing him up," i.e., assessing the officer's size in preparation for a possible attack. Given this and his concern about a possible weapon, Officer Jones states that he wrapped his arms around plaintiff's upper body, pinning plaintiff's arms to his sides and then, with Officer Ojeda's help, placed plaintiff on the ground and handcuffed him. Although Officer Ojeda testified that he assisted Officer Jones in this manner, he stated that he was looking in a different direction when plaintiff allegedly reached toward his waistband and thus observed only a "flurry of movement" by plaintiff.

Plaintiff's version of the events contrasts sharply with the officers' version. According to plaintiff, Officers Ojeda and Jones agreed through non-verbal signals while plaintiff was walking toward to the rear of the vehicle that Officer Jones would exert force against plaintiff. Plaintiff, Ives, Andre, and Newell testified that, even though plaintiff cooperated fully with the Officers, did nothing to provoke them, and complied with all of Officer Jones's instructions, Officer Jones nonetheless and without assistance from the other officers, forcefully threw plaintiff to the ground, causing injury to plaintiff's hand. While the parties dispute the nature and motivation for the force exerted, there is no dispute that subsequent to Officer Jones's exertion of force, plaintiff was placed under arrest for obstruction of justice in violation of Virginia Code § 18.2-460.

After the arrest and while plaintiff waited in Officer Ojeda's police vehicle, Officers Ojeda and Jones proceeded to search the vehicle. According to the officers, this search disclosed marijuana seeds in the center console and an empty box of Philly Blunts, cigar paper typically used to roll marijuana cigarettes. Plaintiff disputes that these items were found in the vehicle and the officers neither saved the items, nor filed a report that they were found.

Plaintiff was then taken to police headquarters, charged with obstruction of justice, and released. This charge was ultimately dropped at the prosecutor's request; an order of nolle prosequi was entered on June 24, 2003.

Following his release, plaintiff returned to his great-grandmother's house in Leesburg where he used ice to treat the swelling injury to his hand caused by Officer Jones's exertion of force. Plaintiff also alleges that he suffered mental distress as a result of the incident. Specifically, he testified that he "didn't feel right" and felt depressed for a couple of days following the incident, but that this depression did not affect his activities. Plaintiff concedes he never sought medical treatment for either his hand injury or his depression.

Plaintiff originally filed a nine count complaint in the Circuit Court of Loudoun County, Virginia against Officers Ojeda and Jones alleging (i) a violation of his constitutional rights under the Fourth, Fifth, Eighth and Fourteenth Amendments, (ii) a violation of his statutory civil rights, and (iii) conspiracy to violate his civil rights. Plaintiff's complaint asserts claims of (iv) assault and battery, (v) intentional infliction of emotional distress, and (vi) false arrest against Officer Jones. On November 10, 2003, defendants removed the case to this district pursuant to 28 U.S.C. §§ 1441 and 1446. On November 24, 2003, defendants filed a motion to dismiss plaintiff's claim of statutory conspiracy under Virginia Code § 18.2-499 pursuant to Rule 12(b)(6), Fed.R.Civ.P., which motion was granted on December 19, 2003. See Veney v. Ojeda et al., Civil Action No. 03-1410-A (E.D.Va. Dec. 19, 2003) (Order).

On December 29, 2003, plaintiff filed an amended complaint alleging (i) the remaining seven counts stated in the original complaint and (ii) a claim of conspiracy to violate his civil rights in violation of § 1983. Defendants now seek summary judgment on plaintiff's claims on the following grounds:...