Gwazdavskas v. Tharp

PAUL RONALD GWAZDAVSKAS, Plaintiff, v. BRANDON THARP, et al., Defendants.

Civil Action No. 7:19-cv-00426

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

June 16, 2020

By: Elizabeth K. Dillon United States District Judge

MEMORANDUM OPINION

Plaintiff Paul Ronald Gwazdavskas, proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983. His claims arise from a September 12, 2018 traffic stop, during which he was uncooperative and subsequently fled. His fleeing led to what he describes as a "low-speed chase," followed by his arrest. In his amended complaint, he names two defendants: Officer Brandon Tharp of the Louisa County Sheriff's Office, who initiated the traffic stop, and Schienschang, a deputy with the Orange County Sheriff's Office, who assisted in pursuing plaintiff and arresting him.

Pending before the court is defendants' motion to dismiss (Dkt. No. 33). Plaintiff has filed a response in opposition (Dkt. No. 35), defendants have filed a reply (Dkt. No. 38), and the motion is ripe for disposition.¹ For the reasons set forth herein, the court will grant defendants' motion to dismiss the remaining claims and dismiss this case without prejudice.

I. BACKGROUND

In his amended complaint, plaintiff alleges that, during a September 12, 2018 traffic stop, when he was stopped by defendant Tharp, plaintiff "gave written and verbal notice that [he] was standing on [his] right to remain silent," but Tharp "continued to question him over and over." (Am. Compl. 2, Dkt. No. 21.)² He further alleges that Officer Tharp refused to provide a business card identifying himself and refused to allow plaintiff to call 911 or talk to a supervisor. Tharp also did not give plaintiff a ticket or show a warrant. Instead, Tharp demanded that plaintiff exit his truck. Because plaintiff was "in duress" and feared death or harm, he refused to exit the vehicle and refused to engage, other than informing Tharp that Tharp was trespassing. (Id. at 4.) At that point, Tharp "threatened harm" and then "attempted to break out a window" of plaintiff's truck with his baton. (Id.) Plaintiff states that he was "in fear of life and injury," and so he fled the scene. (Id.)

This led to a vehicle pursuit (described by plaintiff as a "low speed chase") by Tharp, who was joined by Schienschang, apparently in a separate vehicle, and other unnamed officers. Schienschang's vehicle collided with plaintiff's truck several times, causing damage to both vehicles, although plaintiff's complaint does not indicate how the collision occurred or if Schienschang purposefully collided with his truck. Once plaintiff was stopped, Schienschangstruck and shattered the truck's window and ordered plaintiff out. Plaintiff states that after he complied with the order to exit and kneel on the ground, "excessive force by assault by Officers" occurred, resulting in plaintiff suffering from a strained back, scraped legs, and a hernia to his side. (See Am. Compl. 4.) No additional details are provided as to the "excessive force" used. The complaint also asserts that the two defendants swore out ten "false charges" against plaintiff before a magistrate judge the following day. (Id.)

According to publicly available court documents,³ plaintiff was charged with a number of offenses in Louisa County Circuit Court and Orange County Circuit Court as a result of the September 12, 2018 events.⁴ A few charges were nolle prossed. Ultimately, in Louisa County, he pled guilty to two offenses and was sentenced for both on June 17, 2019. First, in case CR19000005-01, he pled guilty to a felony charge of eluding police or disregarding a signal to stop, in violation of Virginia Code § 46.2-817(B). Among other penalties, he was sentenced to twelve months in jail, with no time suspended. Second, in case CR19000030-03, he pled guilty to the offense of driving without a license, in violation of Virginia Code § 46.2-300, and was sentenced to a $500 fine and $263 in costs.

In Orange County, he proceeded to a jury trial on two separate charges. He was found not guilty of assault on a law enforcement officer but was found guilty of destruction of property valued at more than $1000, in violation of Virginia Code § 18.2-137, for which he was sentenced to 14 days.

The Court of Appeals of Virginia denied his petitions for appeal as to all judgments, both in Louisa County and Orange County. Gwazdauskas v. Commonwealth, No. 109619-2 (Va. Ct. App. Apr. 24, 2020) (Louisa); Gwazdauskas v. Commonwealth, No. 070419-2 (Va. Ct. App. Dec. 19, 2019) (Orange). He then filed petitions for appeal from both decisions, and his petitions remain pending before the Supreme Court of Virginia. Gwazdauskas v. Commonwealth, Nos. 191739, 200576 (Va.).⁵

II. DISCUSSION

A. Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the nonmoving party." Massey v. Ojaniit, 759 F.3d 343, 347 (4th Cir. 2014). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302. Pro se complaints are afforded a liberal construction. Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006).

Defendants contend that the amended complaint should be dismissed against both defendants. As to Tharp, they point out that "the facts alleged indicate there was a lawful traffic stop, in which the plaintiff violated statutory duties to produce documents, he was therefore detained beyond the initial traffic stop, failed to respond to Tharp's lawful orders, andsubsequently fled." As to Schienschang, they claim that the complaint fails to state a claim because plaintiff "describes nothing more than a chase resulting in his felony arrest." (Mem. Supp. Mot. Summ. J. 2, Dkt. No. 33.)

Plaintiff's response to the motion to dismiss is a twenty-page rambling statement, full of references to sovereign citizen-type arguments. (See supra note 2.) These include a statement of his overall belief system from which many of his other assertions flow: that he lives as a "private" person and "refuses to comply and consent with government agents that wish to trespass on his privacy." He goes on to complain about things that have happened while imprisoned, such as his "image" being "taken from him thousands of times" during incarceration against his will and his DNA being taken from him. He alleges he is "foreign" to the Commonwealth of Virginia and then contends he is entitled to sovereign immunity as a foreign entity, and makes other similar claims. Part of his document is titled as a Complaint, and he lists other counts of Trespassing (against Tharp) and malicious prosecution, but he has not sought leave to amend and has not filed an amended complaint.

Moreover, although plaintiff includes some additional factual allegations in his response, it is well-established that a party may not amend its pleadings through briefing. See S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184-85 (4th Cir. 2013). Accordingly, the court does not treat those allegations as part of the amended complaint. See id.

B. On the Current Record, the Court Cannot Conclusively Determine Whether Heck v. Humphrey Bars Any of Plaintiff's Claims.

Although defendant has not moved for dismissal on the basis that plaintiff's claims are subject to the bar set forth in Heck v. Humphrey, 512 U.S. 477 (1994), the court considers the issue. Heck precludes a § 1983 claim that would "necessarily imply the invalidity of [theplaintiff's] conviction or sentence," because "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486-87. Instead, "habeas corpus is the appropriate remedy" for a state prisoner to challenge his conviction. Id. at 482.

Heck thus held that if granting relief on a civil claim, such as a false arrest or malicious prosecution claim, would necessarily call into question the validity of the criminal judgment for which the plaintiff is confined, then the civil case cannot proceed unless the conviction 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, 28 U.S.C. § 2254." Id. at 486-87.

For Heck to apply and bar a plaintiff's § 1983 claim, then, two requirements always must be met: (1) a judgment in favor of the plaintiff must necessarily imply the invalidity of the plaintiff's conviction or sentence; and (2) the claim must be brought by a claimant who is either (a) currently in custody or (b) no longer in custody because the sentence has been served, but nevertheless could have practicably sought habeas relief while in custody. Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015) (citations and alterations omitted).

1. Heck may bar claims arising from the traffic stop through the subsequent chase.

The court first notes that plaintiff's conviction for felony eluding the police is clearly based on his fleeing the traffic stop. Thus, any ruling that any part of the initial traffic stop or Tharp's conduct violated the Fourth Amendment would necessarily call into question his conviction for that offense. Moreover, plaintiff has not shown that his conviction was reversed, expunged, set aside, or otherwise called into question, and court records indicate otherwise.

Nonetheless, based...