UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7532
DOUGLAS R. VAUGHN,
Plaintiff - Appellant,
v.
DEPUTY PEREA; DEPUTY DENTON,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:19-cv-00564-LMB-TCB)
Submitted: September 30, 2021 Decided: December 13, 2021
Before THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded by unpublished per curiam
opinion.
Douglas R. Vaughn, Appellant Pro Se. Alexander Francuzenko, COOK CRAIG &
FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas R. Vaughn appeals the district court’s order dismissing Vaughn’s
42 U.S.C. § 1983 complaint against Defendant Deputy Justin Denton and a subsequent
order denying reconsideration and sua sponte dismissing Vaughn’s complaint without
prejudice for failing to properly serve Defendant Deputy Ronald Perea. 1 As to Denton, we
affirm in part and reverse in part. As to Perea, we vacate and remand.
I
These are the facts alleged in Vaughn’s pro se complaint, which we must credit as
true. See Houck v. Substitute Tr. Servs., 791 F.3d 473, 484 (4th Cir. 2015). On the evening
of October 17, 2019, Denton and Perea served Vaughn a warrant at his mother’s home.
After the officers roused Vaughn, who had been asleep and was groggy because of
medication, Vaughn prepared to leave. As he was readying himself, Vaughn informed the
officers that (1) he had been served that same warrant on October 12, 2019, and (2) he had
back and shoulder injuries. Vaughn then turned his back to the officers to speak to his
mother. At this point, Vaughn was given a warning to put his arms behind his back, and
then immediately “attacked from behind.” Vaughn’s complaint goes onto allege that he
was “screaming that they are hurting me and they still continued to rip my arm behind my
back.” He also notes that “I don’t know which officer attacked me, but at one point I think
they were both on me.” Vaughn accuses Denton and Perea of two actions violating his
1
In his notice of appeal and informal brief, Vaughn stated that Deputy Ronald
Perea’s name was misspelled throughout this action as Deputy “Pidea.”
2
constitutional rights: the repeated execution of a warrant and excessive force. The district
court dismissed the action against Denton for failure to state a claim, and against Perea for
failure of service. 2 We consider these dismissals in turn.
II
The district court granted Denton’s motion to dismiss, reasoning that: (1) the service
of a facially valid warrant creates a presumption of legality, which Vaughn’s complaint
could not overcome; and (2) because Vaughn initially failed to name Denton as a
perpetrator of the excessive force allegedly used against Vaughn, and because his later
pleadings contradicted the complaint, Vaughn failed to state a claim against Denton. As
to Vaughn’s defective warrant claim, we affirm the district court’s dismissal on its
reasoning.
But the district court erred in dismissing Vaughn’s excessive force claim against
Denton. We review the court’s dismissal for failure to state a claim de novo. Mylan Lab’ys,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he pleading standard . . . does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “The
2
Because Vaughn filed his letter for reconsideration within 28 days after the district
court’s dismissal order, the motion is properly construed as a Fed. R. Civ. P. 59(e) motion,
and the district court’s underlying order is therefore properly before this court. In re
Burnley, 988 F.2d 1, 2-3 (4th Cir. 1993).
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plausibility standard is not akin to a ‘probability requirement’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
at 556). When adjudging the legal plausibility of a complaint, we take all factual
allegations in the complaint as true. Twombly, 550 U.S. at 555. “A document filed pro se
is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers[.]’” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citations omitted) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
We conclude that Vaughn’s complaint states a plausible excessive force claim
against Denton. The district court focused on language from Vaughn’s complaint that he
“think[s]” both officers were on top of him at one point; this, the district court concluded,
demonstrated that he was merely speculating that both officers were involved. But some
amount of uncertainty is commonplace in civil complaints and is not the same as rank
speculation. Where a litigant has cause to believe, but lacks concrete evidence of, a
particular element of their claim, they often plead it “on information and belief.” See 5
Fed. Prac. & Proc. (Wright & Miller) § 1224 (4th ed. 2021) (observing that pleading on
information and belief enables a lawsuit when a plaintiff “is without direct personal
knowledge regarding one or more of the allegations necessary to his claim and therefore
must plead on a less certain footing”). What is this if not a lawyerly way of saying “I
think”? See Estelle, 429 U.S. at 106 (requiring that pro se complaints be “held to less
stringent standards than formal pleadings drafted by lawyers”).
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Pleading on information and belief remains permissible, even following Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Wright & Miller § 1224. The practice “is a desirable and
essential expedient when matters that are necessary to complete the statement of a claim
are not within the knowledge of the plaintiff but he has sufficient data to justify interposing
an allegation on the subject.” Id. That is exactly the circumstance we have here. Vaughn
was the victim of the alleged assault, and therefore has adequate data based on his first-
hand experience to reasonably believe (i.e., to “think”) that both officers were atop him at
some point. This is more than adequate to “raise a right to relief” against Denton “above
the speculative level” and “nudge[] [Vaughn’s] claim across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
The district court also noted Vaughn’s purportedly contradictory statements in his
response to Denton’s motion to dismiss, in which Vaughn unambiguously says that Denton
pushed him. But even if a contradictory statement in a memorandum could impact the
sufficiency of the complaint, there is not necessarily a contradiction here. The complaint
alleges that one officer (whose identity Vaughn does not know) first “attacked” him from
behind. But the complaint then recounts how “they” “kept pulling my arms hurting me
more.” The district court apparently read “they” to refer to the single officer who first
attacked Vaughn. But Vaughn could also have been using “they” in its traditional plural
sense to refer to both officers. See They, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
(“those ones—used as third person pronoun serving as the plural of he, she, or it or referring
to a group of two or more individuals not all of the same sex”) (11th ed. 2020). Adopting,
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as we must, this more liberal construction of Vaughn’s pro se complaint, his subsequent
definitive statements that Denton assailed him are not contradictory.
In summary, we conclude that while Vaughn has not stated a claim related to the
officers’ repeated service of a warrant, he has stated a plausible claim for excessive force
against Denton.
III
The district court also sua sponte dismissed the action against “Deputy Pidea” under
Fed. R. Civ. P. 4(m), finding that Vaughn had failed to timely effect service. We review
such dismissal for abuse of discretion. Attkisson v. Holder, 919 F.3d 788, 809 (4th Cir.
2019).
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). Under the rule, a district court has two options when service is not
effected within 90 days of filing: (1) dismissal after notice to the plaintiff, or (2) an order
of service within a specified time. But the district court failed to satisfactorily apply either
alternative, and so abused its discretion by dismissing. See James v. Jacobson, 6 F.3d 233,
239 (4th Cir. 1993) (holding that a district court abuses its discretion when it acts
“arbitrarily, as if neither by rule nor discretion”).
The district court initially appeared to employ the second option available to it under
Rule 4(m), ordering on September 3rd, 2020, “that if service on defendant Pidea through
this Order is unsuccessful and the defendant is not otherwise served within 90 days of this
6
order being entered, defendant Pidea will be dismissed from the instant action without
prejudice.” But rather than permit Vaughn 90 days to effect service, the district court
dismissed the action just 25 days later on September 28th, following its first unsuccessful
service attempt on “Pidea.” In cutting plaintiff’s service deadline 65 days short without
explanation, the district court acted arbitrarily.
Of course, a court need not provide a plaintiff a designated window to effect service;
it may instead select the first option provided by Rule 4(m) and dismiss sua sponte “after
notice to the plaintiff.” But “a district court abuses its discretion when . . . it dismisses a
complaint sua sponte for lack of service without first giving notice to the plaintiff and
providing an opportunity for [him] to show good cause for the failure to effect timely
service.” Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012); see Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (stating standard of review). Here, the
court provided Vaughn no prior notice of the action’s imminent dismissal.
To summarize, we conclude that when the effort to serve “Deputy Pidea” proved
unsuccessful, the plain language of Rule 4(m) required the district court to either (1) wait
the full 90 days before dismissing the complaint or (2) provide notice to Vaughn and offer
him an opportunity to show good cause before sua sponte dismissing the complaint.
Thompson v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002) (per curiam). It did neither.
Thus, we vacate the dismissal as to “Pidea”/Perea and remand for further proceedings.
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* * *
In sum, we affirm in part, reverse in part, vacate in part, and remand. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED IN PART;
REVERSED IN PART;
VACATED IN PART;
AND REMANDED
8