Harris v. City of Virginia Beach , 11 F. App'x 212 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TYRAN HARRIS, 
Plaintiff-Appellant,
v.
CITY OF VIRGINIA BEACH, VIRGINIA;
JAMES K. SPORE; ALFRED M.  No. 00-1704
JACOCKS; CHARLES R. WALL; D. W.
DEAN; MARK R. TIEDEMANN; W. W.
BAKER, Virginia Beach Police
Officers,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-00-50)
Argued: April 6, 2001
Decided: May 22, 2001
Before WILKINSON, Chief Judge, and NIEMEYER and
MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Michael Denis Kmetz, JONES, SHELTON & MALONE,
Norfolk, Virginia, for Appellant. Mark Douglas Stiles, CITY
2 HARRIS v. CITY OF VIRGINIA BEACH
ATTORNEY’S OFFICE, Virginia Beach, Virginia, for Appellees.
ON BRIEF: Theresa B. Berry, BERRY, ERMLICH, LOMAX &
MEIXEL, Virginia Beach, Virginia, for Appellant. Leslie L. Lilley,
Kimberly R. Van Essendelft, CITY ATTORNEY’S OFFICE, Vir-
ginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case requires us to determine whether the district court erred
in dismissing the claims stemming from Tyran Harris’ arrest for driv-
ing under the influence ("DUI"). Finding no error, we affirm.
I.
At approximately 12:01 a.m. on October 23, 1999, Virginia Beach
Police Officer D.W. Dean stopped the car operated by plaintiff Tyran
Harris. The parties’ accounts of the ensuing events differed substan-
tially. Harris claimed that Dean stopped him without probable cause
because Harris is African-American. Harris alleged that on the night
in question, he maintained constant proper control of his vehicle. Har-
ris denied having admitted to Dean that he had consumed alcohol ear-
lier in the evening. Further, Harris asserted that there was no beer or
other alcohol in his car.
Harris contended that he passed every field sobriety test that Dean
required him to perform. Nevertheless, Dean arrested Harris for DUI.
Harris alleged that Dean used unreasonable force when he subse-
quently handcuffed Harris and forced him into the squad car. Further,
Harris maintained that Dean did not loosen the handcuffs when Harris
asked him to do so, and Dean made threatening remarks. Harris stated
that he refused to take a breath alcohol test until he met with a magis-
HARRIS v. CITY OF VIRGINIA BEACH 3
trate judge. After the magistrate judge explained the Virginia Implied
Consent law to him, Harris submitted to the test. The first two times,
the machine registered 0.00%. The third time it registered 0.01%.
Dean then conferred with Officer Brian Decker about whether to
bring Harris to the hospital to conduct a drug test. Ultimately, Dean
and Decker decided to test Harris. Harris did not test positive for
drugs.
For his part, Officer Dean claimed to have followed Harris for
about one-half mile before stopping him. Dean claimed that he did not
know the identity or race of the driver. Dean contended that he
stopped the vehicle because Harris was driving erratically. After he
stopped Harris, Dean noticed that Harris’ eyes were bloodshot, glassy,
and watery, and that Harris was slurring his speech. Dean also
claimed to have detected an odor of alcohol about Harris, and
observed two open 22-ounce beer bottles in the vehicle. One of the
bottles was empty. The second bottle was partially full and was situ-
ated within reach of the driver. According to Dean, Harris admitted
to drinking one beer in the previous hour and to having consumed the
two beers in his vehicle earlier that evening. Based on the above
information, Dean suspected Harris of DUI. Dean subsequently con-
ducted field tests to determine Harris’ sobriety. Dean claimed that
Harris failed these tests. Dean also asserted that he never employed
physical force on Harris.
Dean alleged that when Harris passed the breath alcohol test, Dean
thought that the test was insufficient to explain Harris’ odd behavior.
Consequently, Dean thought a blood test was in order to check for
drugs or a combination of drugs and alcohol. Dean consulted with
another police officer, Brian Decker, to see if such a test was justified.
Decker agreed that it was after observing that Harris appeared groggy
with bloodshot, glassy, and watery eyes, and Harris’ speech was slow
and at times incoherent. Around 3:00 a.m., Harris took a blood test.
While the results of the test were negative, the examination revealed
that Harris had an elevated temperature (100.3 degrees) and heart rate
(126 beats per minute).
Harris sued Dean, other Virginia Beach police officers and offi-
cials, and the City of Virginia Beach for violating his constitutional
4 HARRIS v. CITY OF VIRGINIA BEACH
rights. The district court dismissed all of Harris’ claims. Harris
appeals.
II.
A.
Harris’ first claim was against defendants Spore, Wall, Jacocks,
Baker, and Tiedemann. Spore is the City Manager of Virginia Beach.
Wall is the former Chief of Police for Virginia Beach. Jacocks is the
acting Chief of Police. Baker is a captain and Tiedemann is a sergeant
with the Virginia Beach Police Department. The district court noted
that in claims brought under 42 U.S.C. § 1983, supervisory "[l]iability
will only lie where it is affirmatively shown that the official charged
acted personally in the deprivation of the plaintiffs’ rights." See Vin-
nedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). Furthermore, the
court noted that a plaintiff’s § 1983 action against a particular defen-
dant must be dismissed if the plaintiff’s reason for naming the defen-
dant is based solely upon the theory of respondeat superior. See
Vinnedge, 550 F.2d at 928. The district court held that because Harris
did not allege that any of these five defendants were personally
involved in the alleged deprivation of Harris’ civil rights, it would
dismiss this claim.
B.
Harris’ second claim was against the defendants for conspiring to
deprive him of his constitutional rights in violation of 42 U.S.C.
§ 1985(3). The district court noted that a plaintiff "alleging unlawful
intent in conspiracy claims under § 1985(3) or § 1983 [must] plead
specific facts in a nonconclusory fashion to survive a motion to dis-
miss." See Gooden v. Howard County, Maryland, 954 F.2d 960, 969-
70 (4th Cir. 1992). The district court held that Harris did not allege
specific facts showing an agreement between two or more of the
defendants which resulted in a deprivation of his civil rights. The
court also held that, under Gooden, the fact that Harris is African-
American and the police officers are white is not sufficiently specific
to state a claim for conspiracy under 42 U.S.C. § 1985(3). The district
court finally noted that Harris failed to allege any facts that would
indicate that the decision by Officers Dean and Decker to submit Har-
HARRIS v. CITY OF VIRGINIA BEACH 5
ris to a blood test constituted a conspiracy to deprive him of his civil
rights. The court accordingly dismissed Harris’ conspiracy claim.
C.
Harris’ third claim was for an equal protection violation based
upon the alleged practice of racial profiling by Virginia Beach police
officers. Harris argued that he had identified violations of the civil
rights of both himself and four other African-Americans which dem-
onstrated a pattern, practice, or custom of racial profiling. Harris
presented affidavits from four other African-Americans who alleged
that they were stopped in Virginia Beach without probable cause.
Harris also argued that Officer Dean’s arrest records indicated that
26.58% of his 1999 DUI arrests were of African-Americans, yet
African-Americans over the driving age in Dean’s patrol area
accounted for only 9.16% of the area’s population.
The district court held that Harris had not presented sufficient evi-
dence to support his racial profiling claim. First, the court noted that
Harris had failed to present any evidence to dispute Dean’s assertion
that he did not know the identity or race of the driver prior to stopping
Harris’ vehicle. Furthermore, the court noted that a police memoran-
dum issued on December 7, 1998 indicated that the official policy of
the Virginia Beach Police Department prohibits racial profiling.
Next, the court held that Harris’ statistical evidence did not estab-
lish any element of his claim. The court noted that statistical evidence
is generally not sufficient to show that similarly situated persons of
different races were treated unequally. See United States v. Arm-
strong, 517 U.S. 456, 470 (1996); United States v. Olvis, 97 F.3d 739,
745 (4th Cir. 1996). The district court held that Harris’ statistical evi-
dence provided no basis for comparing the treatment of similarly situ-
ated white individuals. Also, the court stated that Virginia Beach is
part of a metropolitan area, and residents of neighboring cities regu-
larly travel through Virginia Beach. Therefore, the court held that
Harris’ comparison to the African-American population of Dean’s
patrol area in Virginia Beach was not persuasive.
Finally, the district court held that the four affidavits submitted by
other African-Americans did not create an issue of fact concerning the
6 HARRIS v. CITY OF VIRGINIA BEACH
question of whether the City of Virginia Beach engaged in racial pro-
filing. The court noted that three of the four affiants did not provide
the names of the police officers who allegedly stopped them without
probable cause. And while the fourth affiant provided the names of
the two police officers who stopped him, neither of those officers
were named as defendants in this case.
The district court accordingly granted defendants’ motion for sum-
mary judgment on this claim.
D.
Harris’ fourth claim charged that Officer Dean used excessive force
in arresting him. The district court noted that claims alleging the use
of excessive force in the course of an arrest should be analyzed under
the Fourth Amendment and its reasonableness standard. See Graham
v. Connor, 490 U.S. 386 (1989). The court stated that in reviewing
whether the use of handcuffs is reasonable, the plaintiff must allege
more than a de minimis injury. See Cooper v. City of Virginia Beach,
Virginia, 817 F. Supp. 1310, 1314 (E.D. Va. 1993); see also Carter
v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999) (noting that plain-
tiff’s claim that her handcuffs were too tight was so insubstantial as
to fail to support her Fourth Amendment claim). The district court
held that Harris’ allegations that his handcuffs were too tight and that
Dean used abusive language were insufficient to support an excessive
force claim. The court determined that since Harris had neither
alleged nor offered proof of any serious injury resulting from Dean’s
conduct, it would grant Dean’s motion for summary judgment.
E.
Harris’ final claim was that Officer Dean violated his constitutional
rights by arresting him without probable cause. The court recognized
that most of Dean’s statements in support of his actions were disputed
by Harris. The court noted, however, that there was uncontradicted
evidence in the record to support the conclusion that Dean acted rea-
sonably under the circumstances. First, Harris presented no evidence
to dispute Dean’s assertion that Dean did not know the identity or
race of the driver prior to stopping the vehicle. There was nothing to
dispute the time of the stop, the darkness, and the fact that Dean spot-
HARRIS v. CITY OF VIRGINIA BEACH 7
ted Harris’ vehicle while driving behind it. Second, Officer Decker
concurred in Dean’s assessment that Harris appeared to be under the
influence of drugs and ought to be tested. Third, although Harris did
not test positive for the specific drugs tested, the hospital evaluation
indicated that three hours after the arrest, Harris had an elevated tem-
perature (100.3 degrees) and heart rate (126 beats per minute). The
court held that this evidence supported Dean’s assessment that Harris’
physical condition was altered from what would be considered nor-
mal. This in turn supported Dean’s claim that at the time of the field
sobriety tests, Harris’ behavior was impaired and not normal.
The district court held that Harris had not presented any evidence
to support his claim that Dean arrested him for some reason other than
that Harris was impaired in some manner. The court held that in view
of the importance of not using hindsight to second-guess an officer’s
decision, it could not say that Dean acted unreasonably. Accordingly,
the district court granted Dean’s motion for summary judgment on
this claim.
III.
Having had the benefit of oral argument and the parties’ briefs, we
conclude that the district court correctly dismissed Harris’ claims.
Accordingly, we affirm on the reasoning of the district court’s careful
opinion in this case.
AFFIRMED