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False arrest claim stemming from DUI stop dismissed.

Byline: Virginia Lawyers Weekly

The plaintiff failed to allege facts from which it could be reasonably inferred that his arrest for driving while intoxicated was unsupported by probable cause, especially given that the preliminary breath test performed on the scene revealed a blood alcohol content above the legal limit.


On June 4, 2018, Steven Clem sued Scott Jenkins, Mason Mays, Brent Coffey, Charles Burgoon, James Fox, Culpeper County, the Commonwealth of Virginia and four unknown defendants, asserting various claims under federal and state law stemming from a traffic stop, DUI charge and the civil refusal summons.

On June 27, 2018, the state court granted Culpeper County's demurrer. The action was then removed to this court on the basis of federal question jurisdiction. Jenkins, Mays, Coffey, Fox and the Commonwealth of Virginia have since moved to dismiss the complaint under Rule 12(b)(6). In his written response to the defendants' motions, Clem acknowledged that the complaint presently contains insufficient factual allegations to state a claim against Fox, Coffey or the commonwealth, and he requested that the claims against these defendants be dismissed without prejudice. Clem likewise acknowledged that his current complaint fails to state claims for battery, civil conspiracy and gross negligence against Mays and Jenkins, and he requested that these claims be dismissed without prejudice.


The court will first address Clem's claims under 42 U.S.C. 1983. In count five, the plaintiff claims that he was arrested without probable cause by Burgoon and Mays in violation of his rights under the Fourth Amendment, and that Burgoon and Mays "acted at the behest of Jenkins" in arresting him. Clem also claims that he was "maliciously prosecuted by Jenkins, Mays and Burgoon," and that these defendants "act[ed] in concert with Coffey, John Does 1-4, and Fox" in obtaining "both criminal and civil process" against him.

As indicated above, Clem acknowledged in response to the defendants' motions that the current complaint does not contain sufficient factual allegations to state a claim against Coffey or Fox. Although the plaintiff opposed the defendants' motions with respect to the claims against Jenkins and Mays, the court concludes that the complaint fails to state a claim against any of the individual defendants.

Upon review of the record and applicable case law, the court concludes that the facts alleged in Clem's complaint do not plausibly suggest that Mays or Burgoon lacked probable cause to arrest Clem for driving under the influence. Clem acknowledges in the complaint that he had consumed two glasses of wine prior to driving; that Burgoon believed, albeit mistakenly, that Clem had erratically driven off the roadway; that Burgoon detected the odor of alcohol emanating from Clem's vehicle; that Burgoon conferred with Mays upon the trooper's arrival and that Mays reported detecting the odor of alcohol emanating from Clem's person.

Additionally, and perhaps most importantly, the complaint indicates that the preliminary breath test performed on the scene revealed a blood alcohol content above the legal limit. While Clem alleges that his recent wine consumption and use of smokeless tobacco "rendered the portable breath test invalid," such a conclusory statement is insufficient to "raise a right to relief above the speculative level." The same is true for Clem's assertion that Burgoon and Mays unlawfully "acted at the behest of Jenkins in arresting him."

The court is constrained to conclude that the complaint lacks sufficient factual content from which the court could reasonably infer that Clem's arrest for driving while intoxicated was unsupported by probable cause. Accordingly, Clem's claim of false arrest under 1983 is subject to dismissal under Rule 12(b)(6), as is his claim that that he was maliciously prosecuted for driving while intoxicated.

Based on Clem's representations that there are substantial additional facts that could be alleged in support of his original claims, the liberal policy favoring amendment and the fact that the current complaint was drafted to comply with state, rather than federal, pleading standards, the court will dismiss count five without prejudice and permit Clem to file an amended complaint.

In light of the court's disposition of the federal claims asserted in count five, the court declines to exercise supplemental jurisdiction over the plaintiff's state law claims at this time and will dismiss those claims without prejudice. However, if the plaintiff elects to file an amended complaint under 1983, he may reassert any supplemental claims under state law that he believes are supported by the factual allegations.

Motion to dismiss granted.

Clem v. Jenkins, Case No. 18-cv-00049, Jan. 11, 2019. WDVA at Charlottesville (Conrad). VLW 019-3-020. 13 pp.

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Title Annotation:Clem v. Jenkins, U.S. District Court for the Western District of Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 5, 2019
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