Smith v. McCarthy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-6200

DON W. SMITH; DONNA L. SMITH,

Plaintiffs - Appellants,

v.

MICHAEL R. MCCARTHY, in his individual capacity and in his
capacity as a Nelson County Deputy Sheriff; MALCOLM E.
BRIDGWATER, in his individual capacity and in his capacity
as a Nelson County Deputy Sheriff; JOHN M. DIXON, II, in his
individual capacity and in his capacity as a past Nelson
County Deputy Sheriff; GARY L. BRANTLEY, in his individual
capacity and in his past capacity as Nelson County Sheriff;
PHILLIP D. PAYNE, IV, in his individual capacity and in his
capacity as Nelson County Commonwealth’s Attorney; JOSEPH L.
RADER, in his individual capacity as a Virginia State Police
Lieutenant; SHANNON Y. DION, in her capacity as a Virginia
Assistant Attorney General; ROBERT F. MCDONNELL, in his
individual capacity and in his capacity as the Attorney
General of the Commonwealth of Virginia; TIMOTHY M. KAINE,
in his individual capacity and in his capacity as Governor
of the Commonwealth of Virginia; COMMONWEALTH OF VIRGINIA,
by and through her duly established Department of State
Police; UNKNOWN DEFENDANTS, in their individual capacities
and in their capacities as employees of the Virginia State
Police, the Attorney General and/or the Governor; VIRGINIA
DEPARTMENT OF STATE POLICE,

Defendants - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:08-cv-00036-nkm-bwc)

Submitted: September 30, 2009 Decided: October 28, 2009
Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bruce Karl Tyler, Afton, Virginia, for Appellants. William C.
Mims, Attorney General, Maureen Riley Matsen, Deputy Attorney
General, C. Nicole Gilliam, Assistant Attorney General,
Richmond, Virginia; James M. Bowling, IV, ST. JOHN, BOWLING,
LAWRENCE & QUAGLIANA, LLP, Charlottesville, Virginia; Rosalie
Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, P.C.,
Staunton, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Don W. Smith and Donna L. Smith (“the Smiths”) appeal

the district court’s dismissal of their civil rights action

filed pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 (2006),

seeking monetary damages 1 for alleged constitutional violations

which arose on February 16, 2006, and thereafter. In addition

to naming “unknown defendants,” the Smiths named eleven specific

Defendants. 2 On appeal, they claim: (1) the district court

applied the incorrect standard of review in considering the

Defendants’ motions to dismiss and dismissing the Smiths’

1
They sought $500,000 in compensatory damages, $30,000,000
in punitive damages, and attorney’s fees and costs.
2
Specifically, the Smiths filed suit against Michael R.
McCarthy, in his individual capacity and in his capacity as a
Nelson County Deputy Sheriff; Malcome E. Bridgwater, in his
individual capacity and in his capacity as a Nelson County
Deputy Sheriff; John M. Dixon, II, in his individual capacity
and in his past capacity as a Nelson County Deputy Sheriff; Gary
L. Brantley, in his individual capacity and in his past capacity
as a Nelson County Sheriff; Phillip D. Payne, IV, in his
individual capacity and in his capacity as Nelson County
Commonwealth’s Attorney; Joseph L. Rader, in his individual
capacity as Virginia State Police Lieutenant; Shannon Y. Dion,
in her capacity as a Virginia Assistant Attorney General; Robert
F. McDonnell, in his individual capacity and in his capacity as
the Attorney General of the Commonwealth of Virginia; Timothy M.
Kaine, in his individual capacity and in his capacity as
Governor of the Commonwealth of Virginia; the Commonwealth of
Virginia, by and through her duly established Department of
State Police; unknown defendants, in their individual capacities
and in their capacities as employees of the Virginia State
Police, the Attorney General, and/or the Governor; and the
Virginia Department of State Police.

3
complaint; (2) the district court erred in dismissing their

claims against Defendants McCarthy and Bridgwater as barred by

the applicable two-year statute of limitations; (3) the district

court erred in its dismissal of Defendants McCarthy, Bridgwater,

Dixon, and Brantley based on qualified immunity; (4) the

district court erred in dismissing Defendant Payne on the basis

of absolute immunity; (5) the district court erred in its

dismissal of Defendants Rader, Dion, McDonnell, and Kaine based

on qualified immunity; and (6) that all Defendants should be

prohibited from basing any defense on Donna Smith’s obstruction

of justice conviction. For the reasons set forth below, we

affirm.

The allegations forming the basis of the complaint

arose from an incident on February 16, 2006, wherein Deputies

McCarthy and Bridgwater of the Nelson County Sheriff’s

Department went to the Smiths’ property to serve a capias on

Donna Smith’s son, David Reier, for his arrest. The deputies,

who were following up on reports that Reier had been seen in the

area driving a green Dodge pickup truck, found a green Dodge

pickup truck parked next to the house. While McCarthy and

Bridgwater were present, Donna and Don Smith returned to the

property in separate vehicles.

Deputy McCarthy questioned Donna Smith about the

whereabouts of her son and then attempted to look into the back

4
of Donna Smith’s van. The complaint alleged that when McCarthy

attempted to look into the van, Donna Smith “maneuvered her body

so as to place the same between McCarthy and the van’s door with

her back to McCarthy and her arms spread-eagled across the side

of the van in a protective position.” A physical altercation

ensued.

During the struggle, Don Smith attempted to physically

intervene, citing concern for his wife’s heart condition.

Immediately following the altercation, both Donna and Don Smith

were arrested for obstruction of justice. Soon thereafter,

Deputy Dixon and Sheriff Brantley arrived on the scene. The

complaint alleged that after the arrest, Bridgwater, McCarthy,

Dixon, and Brantley spoke together out of the earshot of the

Smiths and at times appeared to speak on cell phones.

At their trial on the obstruction of justice charges,

the Smiths alleged that McCarthy and Bridgwater provided false

testimony; they also suggested that dispatch records related to

the incident were suspect. Although Don Smith was acquitted,

Donna Smith was convicted of obstruction of justice — a

conviction which she did not appeal.

Following the trial on the obstruction of justice

charges, the Smiths’ lawyer, Bruce K. Tyler, reported to

Defendant Payne, Nelson County Commonwealth’s Attorney, the

alleged fraud on the tribunal of the cover-up-conspiracy and the

5
commission of perjury by Defendants McCarthy and Bridgwater. By

letter dated July 23, 2007, Payne and Rader, of the Virginia

State Police, communicated to Tyler their determination that no

perjury or conspiracy had occurred. Tyler then referred the

matter to Defendants Kaine and McDonnell, to no ultimate avail.

Tyler received a letter dated January 14, 2008, from Defendant

Dion stating that because Payne and the Virginia State Police

determined that “no prosecution should be initiated,” the Office

of the Attorney General was “without authority to act.” The

Smiths’ complaint alleged violations of their rights based upon

the foregoing events. 3

The Defendants filed motions to dismiss the complaint

on the basis of, inter alia, qualified, absolute, and Eleventh

Amendment immunity and the statute of limitations. Following

oral argument on the motions to dismiss, the district court

granted all Defendants’ motions as to liability in their

official capacities based on Eleventh Amendment immunity;

dismissed Defendant Payne from the suit in his individual

capacity, finding him to be absolutely immune; dismissed

3
Having cited to the trial transcript in the complaint, the
Smiths’ counsel also filed a notice of hearing in which he
attached a copy of the transcript of the obstruction of justice
misdemeanor trial. Counsel indicated that during oral argument
he intended to rely upon the transcript in responding to
Defendants’ motions to dismiss.

6
Defendants McCarthy, Bridgwater, Dixon, and Brantley from the

suit in their individual capacities, finding them to have

qualified immunity and finding no constitutional violations;

dismissed Defendants Rader, Dion, McDonnell, and Kaine from the

suit in their individual capacities, finding them to have

qualified immunity and/or no personal involvement; and granted

the motions to dismiss Defendants Department of State Police and

Commonwealth of Virginia on grounds of Eleventh Amendment

immunity. The trial court also found that any claims relating

to the events of February 16, 2006, including, but not limited

to, excessive force, violation of the Smiths’ due process

rights, illegal entry upon the Smiths’ property, and illegal

search and seizure, were barred by the applicable two-year

statute of limitation. The Smiths timely appealed. 4

As a preliminary matter, this court reviews the

district court’s grant of a motion to dismiss pursuant to either

Fed. R. Civ. P. 12(b)(1) or Fed. R. Civ. P. 12(b)(6) under a de

novo standard of review. Duckworth v. State Admin. Bd. of

Election Laws, 332 F.3d 769, 772 (4th Cir. 2003) (Rule 12(b)(6)

motions); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.

4
The Smiths have not appealed that portion of the trial
court’s Order dismissing the 42 U.S.C. § 1981 and § 1985 claims
and dismissing the claims of monetary relief against Defendant
Payne in his official capacity based on Eleventh Amendment
immunity.

7
1999) (Rule 12(b)(1) motions). When this court reviews a

district court’s Rule 12(b)(6) dismissal, it focuses only on the

legal sufficiency of the complaint. Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008). “[W]hen ruling on a defendant’s

motion to dismiss, a [trial] judge must accept as true all of

the factual allegations contained in the complaint.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). However,

to survive a Rule 12(b)(6) motion, “[f]actual allegations must

be enough to raise a right to relief above the speculative

level,” with the complaint having “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007). “[T]he tenet that a

court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions” and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are insufficient.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

550 U.S. at 555). A complaint may survive a motion to dismiss

only if it “states a plausible claim for relief” that “permit[s]

the court to infer more than the mere possibility of misconduct”

based upon “its judicial experience and common sense.” Id. at

1950 (citing Twombly, 550 U.S. at 556).

Appellants’ first claim of error is that the district

court applied the wrong standard in ruling upon Defendants’

8
motions to dismiss. They claim the district court failed to

assume the truth of the Smiths’ complaint and to construe the

complaint in the light most favorable to them. They

specifically allege error in the district court’s reliance on

the transcript of the obstruction of justice trial in rendering

its decision.

In considering motions to dismiss under Rule 12(b)(6),

the court may properly consider exhibits attached to the

complaint. Fayetteville Investors v. Commercial Builders, Inc.,

936 F.2d 1462, 1465 (4th Cir. 1991). Here, as noted above, the

Smiths cited to the trial transcript in their complaint, and

their counsel filed a copy of the transcript with the trial

court, citing his intention to rely upon it in argument on the

motions to dismiss. As such, they cannot now justifiably

complain about the trial court’s consideration of the transcript

in rendering its decision or on its reliance on the facts as

determined in that proceeding. We have reviewed carefully the

record and find no merit to the Smiths’ claim that the district

court applied the incorrect standard in considering either the

trial transcript or the motions to dismiss or in dismissing the

Smiths’ complaint.

The Smiths next claim reversible error by the district

court in dismissing their claims against Defendants McCarthy and

Bridgwater as barred by the applicable two-year statute of

9
limitations. 5 They claim that because the complaint alleges a

conspiracy to convict them, any events occurring after the

actual alleged malicious wounding of Donna Smith on February 16,

2006, are not barred by the statute of limitations because all

such illegal acts were in furtherance of the conspiracy. Thus,

they argue, the two-year limitations period began when the

objective of the conspiracy was attained, which, they reason,

would be on August 2, 2006, the date Donna Smith was convicted. 6

The accrual of a cause of action under § 1983 for

statute of limitations purposes is based on federal law. Nasim

v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)

(en banc); see also Wallace v. Kato, 549 U.S. 384, 388 (2007).

This court has held that the cause of action under § 1983

accrues “when the plaintiff possesses sufficient facts about the

harm done to him that reasonable inquiry will reveal his cause

of action.” Nasim, 64 F.3d at 955.

Here, the specific claims dismissed by the district

court as barred by the statute of limitations were those “claims

regarding the events of February 16, 2006 – excessive force,

violations of Plaintiffs’ due process rights, illegal entry upon

5
Virginia’s personal injury statute of limitations is two
years. Va. Code Ann. § 8.01-243(A).
6
The Complaint was filed on August 1, 2008.

10
Plaintiffs’ property, illegal search and seizure, etc.” The

district court did not include the Smiths’ conspiracy claims in

its dismissal on statute of limitations grounds, but rather

those claims relating solely to the events of February 16, 2006.

Thus, to the extent the Smiths sought to raise claims in their

August 1, 2008, complaint expressly relating to the events of

February 16, 2006, the district court correctly dismissed such

claims as barred by the statute of limitations. 7

The Smiths next contend that the district court erred

in finding that the actions of Defendants McCarthy, Bridgwater,

Dixon, and Brantley were protected by qualified immunity. They

claim on appeal that McCarthy had no right to “be vested with

qualified immunity for committing an extremely serious felony

that could have killed or seriously injured Donna Smith who had

a heart condition” and that Bridgwater had a constitutional duty

to arrest McCarthy and “to refrain from aiding in the arrest of

[the Smiths].” Moreover, they contend that Dixon and Brantley

likewise failed in their duty to free the Smiths and that, in so

failing, the officers joined in the conspiracy to convict the

Smiths. The Smiths further claim that these Defendants

continued their illegal conspiracy when they fixed their

7
Moreover, to the extent the Smiths claim false arrest,
such claim is likewise barred by the statute of limitations.
See Wallace, 549 U.S. at 388.

11
testimony prior to trial, knew that records had been altered,

and/or knew that Bridgwater and McCarthy were going to perjure

themselves at the trial, all in an effort to fabricate the

criminalization of Donna Smith. 8

Qualified immunity protects government officials

performing discretionary functions from “liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The court must determine “whether the

plaintiff has alleged the deprivation of an actual

constitutional right at all, and if so, . . . whether that right

was clearly established at the time of the alleged violation.”

Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Pearson v.

Callahan, 555 U.S. ___, 129 S. Ct. 808, 815-16 (2009). For a

right to be clearly established, “its contours must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Hope v. Pelzer, 536

U.S. 730, 739 (2002) (internal quotation marks omitted).

8
The Smiths include Defendant Payne in this allegation,
asserting on appeal that he was “advising the sheriff defendants
what to do [to cover up the malicious wounding and propagate the
conviction of Donna Smith for obstruction of justice].”

12
 We find the district court did not engage in improper

fact-finding, or otherwise err, in determining that the officers

were entitled to qualified immunity because the Smiths failed to

allege a meeting of the minds, a necessary element of a

conspiracy, and because the allegations of conspiracy were

conclusory. The allegations in the Smiths’ complaint describe

that, at the time of arrest, these Defendants “conferred at

times as an entire group and at times in smaller groups out of

earshot of plaintiffs and appeared at times to be talking on

cell phones.” These facts, taken as true, do not establish a

meeting of the minds among the officers to violate the rights of

the Smiths. As the district court properly held, this claim is

wholly conclusory and devoid of sufficient allegation of a

meeting of the minds. The other similarly conclusory claims,

including the failure of the other officers to arrest McCarthy, 9

likewise fail to establish a conspiracy. 10

9
To the extent this claim is raised for the first time on
appeal, we decline to review it. Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993).
10
With regard to the Smiths’ claim that Bridgwater and
McCarthy presented perjured testimony at their trial, the
district court correctly held that such claim is subject to
dismissal because the Supreme Court has specifically held that
police officers are immune from an action arising under § 1983
for alleged perjury. See Briscoe v. LaHue, 460 U.S. 325, 342-
43, 345 (1983). Likewise, their claim that the Defendants
failed to provide them with allegedly “exculpatory” evidence
before trial (even assuming, arguendo, that the evidence to
(Continued)
13
 As the district court held, the Smiths’ claim that the

officers’ testimony was “fixed and coordinated” prior to trial

related to the issue of whether the officers had cause to be on

the Smiths’ property on February 16, 2006. As the search of the

property is analyzed from an objective perspective, and as the

law enforcement officers clearly had the objective right to go

on the Smiths’ property to inquire about the green Dodge pickup

truck and the possibility that Reier was present on the

premises, no constitutional deprivation was viably asserted by

the Smiths. See Brigham City, Utah v. Stuart, 547 U.S. 398,

404-05 (2006); see also United States v. Bradshaw, 490 F.2d

1097, 1100 (4th Cir. 1974).

Accordingly, the court did not err in finding that the

Smiths failed to assert any violation of a clearly established

constitutional right, such that Defendants McCarthy, Bridgwater,

Dixon, and Brantley would not be entitled to qualified immunity.

The district court’s dismissal of these Defendants based on

qualified immunity is affirmed. 11

which the Smiths refer is properly categorized as “exculpatory”)
was properly dismissed by the district court. See Jean v.
Collins, 221 F.3d 656, 663 (4th Cir. 2000).
11
Similarly, the district court did not err in dismissing
the Smiths’ claims against any of the officials in their
official capacities, as they are afforded immunity by the
(Continued)
14
 The Smiths’ next claim of error is in the district

court’s dismissal of Defendant Payne on the basis of absolute

immunity. They assert that Payne was not protected by absolute

immunity because he “extrajudicially” conspired and advised the

police officers to arrest the Smiths on fabricated charges, to

alter the dispatch records, and to present false testimony at

the Smiths’ criminal trial, and because he allegedly withheld

exculpatory evidence.

In Imbler v. Pachtman, the Supreme Court held that “in

initiating a prosecution and in presenting the State’s case, the

prosecutor is immune from a civil suit for damages under

§ 1983.” 424 U.S. 409, 431 (1976). This court has held that a

state prosecuting attorney is absolutely immune from liability

for damages for conspiring with police officers to present false

testimony and for withholding exculpatory evidence prior to

trial, as those actions are “intimately associated with the

judicial process.” Carter v. Burch, 34 F.3d 257, 262-63 (4th

Cir. 1994). Thus, as to his alleged actions in conspiring with

police officers to present false testimony and for withholding

exculpatory evidence prior to trial, Defendant Payne was

entitled to absolute immunity. Id. at 263.

Eleventh Amendment. See Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989).

15
 With regard to their assertions relating to Defendant

Payne’s advising the officers to arrest them on fabricated

charges, the Smiths correctly argue that such an action by Payne

would be entitled only to qualified, not absolute, immunity.

See Burns v. Reed, 500 U.S. 478, 492-96 (1991). However, as the

district court found, there is no specific allegation in the

complaint that Payne knew about, gave advice regarding, or

otherwise participated in the arrest and search. Moreover, even

if the Smiths’ assertions with regard to Defendant Payne’s

actions relative to their search and arrest on February 16,

2006, were properly pled and not wholly conclusory, such claims

would be barred by the applicable two-year statute of

limitations. Hence, the district court properly dismissed the

Smiths’ claims against Defendant Payne.

In their next two arguments, the Smiths contend that

the district court erred in dismissing their case against

Defendants Rader, Dion, McDonnell, and Kaine (the “State

Defendants”) based on qualified immunity. The claims against

the State Defendants are based on the Smiths’ attorney’s request

to Governor Kaine and then-Attorney General McDonnell to

investigate whether the deputies testified untruthfully and his

further request for the referral of the matter to a special

prosecutor, together with Assistant Attorney General Dion’s

16
statement to the Smiths’ attorney that the Attorney General’s

Office was without authority to act on his request.

In this case, because the Smiths had no right 12 to a

criminal investigation or criminal prosecution of another, see

Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988), the

district court properly determined that they failed to allege

the violation of a clearly established statutory or

constitutional right. See Harlow, 457 U.S. at 818. Thus, the

district court correctly held that the individual State

Defendants were entitled to qualified immunity. Moreover, based

on absolute prosecutorial immunity, former Attorney General

McDonnell and Assistant Attorney General Dion cannot be sued in

any event for their decision not to prosecute the officers. See

Imbler, 424 U.S. at 431. 13, 14

12
Nor do private citizens have standing to request the
prosecution of another. Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973).
13
As noted above as to Defendants McCarthy, Bridgwater,
Dixon, and Brantley, there was no error in the district court’s
dismissal of the Smiths’ claims against the State Defendants in
their official capacities, as they also are afforded immunity by
the Eleventh Amendment. See Will, 491 U.S. at 71.
14
While not set forth in a separate argument in their
brief, the Smiths also argue that the district court erred in
dismissing their claims against the Commonwealth of Virginia and
the Virginia State Police. This claim has no merit. See Will,
491 U.S. at 64, 71; see also Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 280-81 (1977).

17
 The Smiths’ final claim is that the Defendants should

be precluded from basing any defense on Donna Smith’s

obstruction of justice conviction. As this issue was not raised

before the district court, we decline to consider it on appeal.

See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

Accordingly, we affirm the district court’s dismissal

of the Smiths’ complaint. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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