M. HANNAH LAUCK, District Judge.
This matter comes before the Court on Defendant Wendy S. Hughes's Motion to Dismiss for Failure to State a Claim
"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 5 A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[] only `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 Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those that "show" a claim that is "plausible on its face." Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 570; Fed. R. Civ. P. 8(a)(2)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations omitted).
District courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va. 1999). A pro se plaintiff must nevertheless allege facts sufficient to state a cause of action. Id. (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims that the [litigant] failed to clearly raise on the face of [the] complaint." Newkirk v. Circuit Court of the City of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).
On September 2, 2008, the Circuit Court of the County of Chesterfield, Virginia (the "Chesterfield Circuit Court") convicted Saunders following a guilty plea to two counts of "consensual sodomy with juveniles" under § 18.2-361 (A).
On August 4, 2009, the Chesterfield Circuit Court found Saunders guilty of violating the conditions of his probation. See Saunders, 753 S.E.2d at 605. The Chesterfield Circuit Court revoked Saunders's previously-suspended sentences, and re-imposed a total sentence of ten years' incarceration, with all ten years suspended on the conditions of: (1) good behavior; (2) supervised probation until released by the Court or the Probation Officer; and, (3) the payment of "original court costs, current court costs, . . . and any interest that may accrue until the balance is paid in full." (August 4, 2009 Show Cause Revocation O. 1-2.) Four months later, on November 4, 2009, the Chesterfield Circuit Court again found Saunders guilty of violating the conditions of his probation. The court revoked the previously-suspended sentences, re-imposed a total sentence of ten years' incarceration, and suspended seven years on the conditions of: (1) good behavior; (2) mental health treatment; (3) sex offender treatment; (4) making "no threats to any other person"; (5) supervised probation, commencing upon Saunders's release from incarceration and continuing until released by the Court or the Probation Officer; and, (6) the payment of "original court costs, current court costs, . . . and any interest that may accrue until the balance is paid in full." On August 22, 2012, the Chesterfield Circuit Court found Saunders guilty of violating the conditions of his probation a third time, imposing another active three-year period of incarceration with four years' incarceration suspended on the conditions of: (1) good behavior; (2) supervised probation for fifteen years until released by the Court, (3) the payment of "original court costs, current court costs, . . . and any interest that may accrue until the balance is paid in full." (August 22, 2012 Show Cause O. 1-2.)
Saunders appealed the August 22, 2012 probation revocation to the Virginia Court of Appeals. See Saunders, 753 S.E.2d at 605. Among other challenges, Saunders attacked his underlying 2008 convictions based on Lawrence,
The Supreme Court of Virginia later reaffirmed this holding in Toghill v. Commonwealth, 768 S.E.2d 674 (Va. 2015). In Toghill, the Supreme Court of Virginia reaffirmed the constitutionality of Section 18.2-361(A) as applied to Toghill because Toghill, like MacDonald, had been convicted based on conduct involving a minor. Toghill, 768 S.E.2d at 679. The Supreme Court of Virginia expressly declined to follow the Fourth Circuit's holding in MacDonald/Moose, noting that it provided only persuasive authority. Id. at 677. The Toghill court noted that the "`normal rule' is that `partial, rather than facial invalidation [of a statute] is the required course . . . [because courts] try not to nullify more of a legislature's work than is necessary.'" Toghill, 768 S.E.2d at 680 (quoting Ayotte v. Planned Parenthood, 546 U.S. 320, 329 (2004)). Partial invalidation does less to frustrate the "intent of the elected representatives of the people." Id. The Virginia Supreme Court noted with approval some aspects of the dissenting opinion in MacDonald/Moose. See Toghill, 768 S.E.2d at 679 n.4 (citing MacDonald/Moose, 710 F.3d at 169 (Diaz, J., dissenting)); see also id. at 683-84 (Mims, J. concurring) (citing MacDonald/Moose, 710 F.3d at 167 (Diaz, J., dissenting)).
The Complaint before the Court challenges the garnishment of Saunders's wages to pay outstanding court costs and fees. Saunders alleges that on or about May 19, 2016, he received a "Notice of Lien and Demand for Payment of Court Liabilities, Under Section 58.1-1804 of the Code of Virginia," (the "Notice and Demand"). (Compl. 4, ECF No. 3.) The Notice and Demand required Saunders's employer to withhold money from Saunders's check "for Payment of court liabilities." (Not. and Demand 1, ECF No. 1-3.) In all, Saunders owed $616.62 to "Goochland Combined Court" for case number 075GT1300283700, and $10,237.09 to "Chesterfield Circuit Court" for case numbers 041CR07B0231801, 041CR07C0231801, 041CR07E0231801, and 041CR07F0231801. (Not. and Demand 2, ECF No. 1-3.)
After receiving the Notice and Demand, Saunders contacted both Hughes and Burns and "explained . . . that each and every one of the previously-referenced and attached Orders of the Chesterfield County Circuit Court were predicated upon former Va. Code 18.2-361(A), which had been facially invalidated by the Fourth Circuit Court of Appeals." (Compl. 6.) Saunders requested that Hughes and Burns "cease and desist the collection of his salary and pay," (Compl. 6), because the Notice and Demand "is the enforcement of a statute that the Court has held to be facially unconstitutional," (Compl. 8). Saunders further explained:
(Compl. 8.)
According to Saunders, Hughes informed him that "unless and until the Chesterfield Court Orders were nullified, . . . the . . . collections of Saunders['s] salary and pay would continue" until all court costs were paid in full. (Compl. 7.) Burns similarly told Saunders that because "the costs and fines for Chesterfield Count have not been vacated, the lien is valid and will be enforced." (Compl. 9.) Saunders alleges that, beginning on May 31, 2016, "approximately $279.00 per pay-check . . . will be withheld from Saunders and will be forwarded to the Clerk of the Chesterfield County Circuit Court," because "[i]t is a long-standing and deeply-embedded policy of the Virginia Department of Taxation and the Chesterfield Circuit Court Clerk's office to obey and abide by . . . Orders of any Virginia Court, irrespective of constitutionality, unless and until the same are declared null and void by [a] Court of competent jurisdiction." (Compl. 9-10.)
Saunders alleges that enforcement of the Notice and Demand violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution,
(Compl. 13-14.)
On September 2, 2016, the Court granted Saunders's Motion for Leave to Proceed in forma pauperis and directed the Clerk to file Saunders's complaint. On October 3, 2016, Hughes filed the Hughes Motion to Dismiss, arguing that Saunders's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). On October 11, 2016, Burns filed the Burns Motion to Dismiss, also arguing that Saunders's claims are barred by Heck, and arguing in the alternative that Saunders's claims are barred by res judicata and collateral estoppel and that Burns in an improper defendant. Saunders responded to both motions, and Hughes and Burns both replied. On June 9, 2017, Saunders filed the Motion for Status Conference stating that he "would like for the parties to confer before this Court in order to either argue their pleadings on the merits or discuss any potential settlement agreement." (Mot. Status Conference 1, ECF No. 20.) Neither Hughes nor Burns responded to Saunders's Motion for Status Conference.
The Court must dismiss this action because Saunders's claims are not cognizable under 42 U.S.C. § 1983.
Both Hughes and Burns argue that Heck bars Saunders's § 1983 action because he was "still on probation at the time he filed the Complaint," and was therefore "in custody" for purposes of applying the so-called Heck bar. (Burns Mem. Supp. Mot. Dismiss 7-8, ECF No. 16 (citing Saunders v. Jones, 2014 WL 2155342); see also Hughes Mem. Supp. Mot. Dismiss 2, ECF No. 10 ("[S]ince the plaintiff is still on probation, his § 1983 claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).").) Saunders argues in response that Burns's and Hughes's "assertion[s] that Saunders is still on probation [are] factually inaccurate and baseless." (PL's Resp. Burns Mot. Dismiss 1, ECF No. 18; PL's Resp. Hughes Mot. Dismiss 1, ECF No. 12.) The Court, however, need not resolve the factual dispute because, even if Saunders is no longer on probation, his Complaint is barred by Heck.
In Heck, the Supreme Court of the United States addressed the "concerns for finality and consistency" that are raised when a prisoner uses § 1983, rather than habeas corpus, to attack the "validity of outstanding criminal judgments." 512 U.S. at 485-86. Heck held that
512 U.S. at 487. In order for a plaintiff to succeed in a § 1983 claim, the plaintiff must "prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus," id, what has become known as the "favorable termination requirement," see Nelson v. Campbell, 541 U.S. 637, 646-47 (2004).
Although Heck involved a § 1983 action brought by an individual who was incarcerated at the time, see Heck, 512 U.S. at 478, the Heck Court included in a footnote that "the principle [barring the challenge of an outstanding criminal conviction through a civil tort action] is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated," id. at 490 n.10. This footnote, and subsequent Supreme Court cases, created differing interpretations among the circuit courts. See Wilson v. Johnson, 535 F.3d 262, 266-67 (4th Cir. 2008) (discussing circuit split over whether an individual no longer in custody may bring a claim under § 1983 without meeting the favorable termination requirement). Although "the Supreme Court has yet to conclusively decide if a former inmate can file a § 1983 claim," Wilson, 535 F.3d at 267, the Fourth Circuit has conclusively decided the issue. "A would-be plaintiff who is no longer in custody may bring a § 1983 claim undermining the validity of a prior conviction only if he [or she] lacked access to federal habeas corpus while in custody." Griffin v. Baltimore Police Dep't, 804 F.3d 692, 697 (4th Cir. 2015).
Therefore, regardless of whether Saunders is on probation and therefore "in custody" within the meaning of Heck, he may not bring a § 1983 claim "undermining the validity of [his] conviction [unless] he lacked access to federal habeas corpus while in custody." See id. Saunders's Complaint includes no allegations that would bring it within "the Heck bar's narrow exception" of a "petitioner [who] could not have `practicably sought habeas relief while in custody.'" Griffin, 804 F.3d at 696-97. Moreover, it is unlikely that Saunders could qualify for this exception because he previously filed a petition for habeas relief. See Saunders v. Clarke, No. 3:11cv170 (E.D. Va. filed Mar. 18, 2011). As such, if a judgment in Saunders's favor "would necessarily imply the invalidity of his conviction," Heck, 512 U.S. at 487, the Court must dismiss the Complaint.
Saunders fashions his Complaint as an attack on the garnishment of his wages. His Prayer for Relief, however, makes clear that a judgment in Saunders's favor "would necessarily imply the invalidity of his conviction." Heck, 512 U.S. at 487. Because Saunders does not "demonstrate that [his] conviction or sentence has already been invalidated,"
Saunders seeks declarations that the court orders under which he was convicted in the Chesterfield Circuit Court and the Notice and Demand, "insofar as it relies upon [those] orders," are "null and void." (Compl. 13.) He further asks the Court to declare that Burns's and Hughes's actions in enforcing the Notice and Demand are unconstitutional and enjoining Burns and Hughes from enforcing the Notice and Demand further. (Compl. 13-14.) Were the Court to grant these requested remedies, it would "necessarily imply the invalidity of [Saunders's] conviction or sentence" because the Court would be declaring his convictions and sentences unconstitutional. See Heck, 512 U.S. at 487.
Therefore, Saunders's claims are barred by Heck and are not cognizable under § 1983.
Because Saunders's Complaint is barred by Heck v. Humphrey, 512 U.S. 477 (1994), the Court will grant the Hughes Motion to Dismiss and the Burns Motion to Dismiss. The Court will deny as moot Saunders's Motion for Status Conference. The Court will dismiss Saunders's Complaint without prejudice.
An appropriate Order shall issue.
In 2014, the Virginia General Assembly amended Section 18.2-361 (A) and removed the anti-sodomy provision. Toghill v. Virginia, 768 S.E.2d 674, 681 (Va. 2015). The General Assembly also "amended other statutes to ensure that sodomy with a minor would be a crime." Id. (citing 2014 Va. Acts ch. 794). "Currently, the Code of Virginia criminalizes sodomy involving adults and minors in numerous ways." Id.
