                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6200


DON W. SMITH; DONNA L. SMITH,

                  Plaintiffs - Appellants,

             v.

MICHAEL R. MCCARTHY, in his individual capacity and in his
capacity as a Nelson County Deputy Sheriff; MALCOLM E.
BRIDGWATER, in his individual capacity and in his capacity
as a Nelson County Deputy Sheriff; JOHN M. DIXON, II, in his
individual capacity and in his capacity as a past Nelson
County Deputy Sheriff; GARY L. BRANTLEY, in his individual
capacity and in his past capacity as Nelson County Sheriff;
PHILLIP D. PAYNE, IV, in his individual capacity and in his
capacity as Nelson County Commonwealth’s Attorney; JOSEPH L.
RADER, in his individual capacity as a Virginia State Police
Lieutenant; SHANNON Y. DION, in her capacity as a Virginia
Assistant Attorney General; ROBERT F. MCDONNELL, in his
individual capacity and in his capacity as the Attorney
General of the Commonwealth of Virginia; TIMOTHY M. KAINE,
in his individual capacity and in his capacity as Governor
of the Commonwealth of Virginia; COMMONWEALTH OF VIRGINIA,
by and through her duly established Department of State
Police; UNKNOWN DEFENDANTS, in their individual capacities
and in their capacities as employees of the Virginia State
Police, the Attorney General and/or the Governor; VIRGINIA
DEPARTMENT OF STATE POLICE,

                  Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:08-cv-00036-nkm-bwc)


Submitted:    September 30, 2009            Decided:   October 28, 2009
Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bruce Karl Tyler, Afton, Virginia, for Appellants.    William C.
Mims, Attorney General, Maureen Riley Matsen, Deputy Attorney
General,   C.  Nicole   Gilliam,   Assistant Attorney   General,
Richmond, Virginia; James M. Bowling, IV, ST. JOHN, BOWLING,
LAWRENCE & QUAGLIANA, LLP, Charlottesville, Virginia; Rosalie
Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, P.C.,
Staunton, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Don W. Smith and Donna L. Smith (“the Smiths”) appeal

the   district     court’s      dismissal      of   their    civil       rights    action

filed     pursuant    to   42    U.S.C.   §§ 1981,     1983,       and    1985    (2006),

seeking monetary damages 1 for alleged constitutional violations

which arose on February 16, 2006, and thereafter.                          In addition

to naming “unknown defendants,” the Smiths named eleven specific

Defendants. 2        On appeal, they claim:            (1) the district court

applied     the   incorrect      standard      of   review    in    considering       the

Defendants’       motions       to   dismiss    and   dismissing          the     Smiths’



      1
       They sought $500,000 in compensatory damages, $30,000,000
in punitive damages, and attorney’s fees and costs.
      2
       Specifically, the Smiths filed suit against Michael R.
McCarthy, in his individual capacity and in his capacity as a
Nelson County Deputy Sheriff; Malcome E. Bridgwater, in his
individual capacity and in his capacity as a Nelson County
Deputy Sheriff; John M. Dixon, II, in his individual capacity
and in his past capacity as a Nelson County Deputy Sheriff; Gary
L. Brantley, in his individual capacity and in his past capacity
as a Nelson County      Sheriff; Phillip D. Payne, IV, in his
individual capacity and in his capacity as Nelson County
Commonwealth’s Attorney; Joseph L. Rader, in his individual
capacity as Virginia State Police Lieutenant; Shannon Y. Dion,
in her capacity as a Virginia Assistant Attorney General; Robert
F. McDonnell, in his individual capacity and in his capacity as
the Attorney General of the Commonwealth of Virginia; Timothy M.
Kaine, in his individual capacity and in his capacity as
Governor of the Commonwealth of Virginia; the Commonwealth of
Virginia, by and through her duly established Department of
State Police; unknown defendants, in their individual capacities
and in their capacities as employees of the Virginia State
Police, the Attorney General, and/or the Governor; and the
Virginia Department of State Police.


                                          3
complaint;       (2)   the   district       court      erred   in   dismissing          their

claims against Defendants McCarthy and Bridgwater as barred by

the applicable two-year statute of limitations; (3) the district

court erred in its dismissal of Defendants McCarthy, Bridgwater,

Dixon,     and    Brantley     based       on     qualified       immunity;       (4)    the

district court erred in dismissing Defendant Payne on the basis

of   absolute      immunity;    (5)     the       district     court      erred    in     its

dismissal of Defendants Rader, Dion, McDonnell, and Kaine based

on qualified immunity; and (6) that all Defendants should be

prohibited from basing any defense on Donna Smith’s obstruction

of justice conviction.              For the reasons set forth below, we

affirm.

            The    allegations      forming         the   basis     of    the    complaint

arose from an incident on February 16, 2006, wherein Deputies

McCarthy     and       Bridgwater      of        the    Nelson      County       Sheriff’s

Department went to the Smiths’ property to serve a capias on

Donna Smith’s son, David Reier, for his arrest.                           The deputies,

who were following up on reports that Reier had been seen in the

area driving a green Dodge pickup truck, found a green Dodge

pickup    truck    parked    next     to    the     house.        While    McCarthy      and

Bridgwater were present, Donna and Don Smith returned to the

property in separate vehicles.

            Deputy       McCarthy     questioned          Donna     Smith       about    the

whereabouts of her son and then attempted to look into the back

                                             4
of Donna Smith’s van.             The complaint alleged that when McCarthy

attempted to look into the van, Donna Smith “maneuvered her body

so as to place the same between McCarthy and the van’s door with

her back to McCarthy and her arms spread-eagled across the side

of the van in a protective position.”                      A physical altercation

ensued.

            During the struggle, Don Smith attempted to physically

intervene,        citing    concern    for       his     wife’s   heart     condition.

Immediately following the altercation, both Donna and Don Smith

were    arrested     for    obstruction      of    justice.       Soon     thereafter,

Deputy Dixon and Sheriff Brantley arrived on the scene.                                The

complaint alleged that after the arrest, Bridgwater, McCarthy,

Dixon, and Brantley spoke together out of the earshot of the

Smiths and at times appeared to speak on cell phones.

            At their trial on the obstruction of justice charges,

the Smiths alleged that McCarthy and Bridgwater provided false

testimony; they also suggested that dispatch records related to

the incident were suspect.              Although Don Smith was acquitted,

Donna     Smith     was    convicted    of       obstruction      of   justice     —    a

conviction which she did not appeal.

            Following       the     trial    on    the    obstruction      of   justice

charges,     the     Smiths’      lawyer,       Bruce    K.   Tyler,      reported      to

Defendant    Payne,        Nelson    County       Commonwealth’s       Attorney,       the

alleged fraud on the tribunal of the cover-up-conspiracy and the

                                            5
commission of perjury by Defendants McCarthy and Bridgwater.                           By

letter dated July 23, 2007, Payne and Rader, of the Virginia

State Police, communicated to Tyler their determination that no

perjury or conspiracy had occurred.                          Tyler then referred the

matter to Defendants Kaine and McDonnell, to no ultimate avail.

Tyler received a letter dated January 14, 2008, from Defendant

Dion stating that because Payne and the Virginia State Police

determined that “no prosecution should be initiated,” the Office

of the Attorney General was “without authority to act.”                                The

Smiths’ complaint alleged violations of their rights based upon

the foregoing events. 3

               The Defendants filed motions to dismiss the complaint

on the basis of, inter alia, qualified, absolute, and Eleventh

Amendment immunity and the statute of limitations.                               Following

oral       argument    on   the    motions       to    dismiss,     the   district   court

granted       all     Defendants’         motions       as   to     liability   in   their

official       capacities         based     on        Eleventh      Amendment    immunity;

dismissed       Defendant         Payne    from       the    suit    in   his   individual

capacity,       finding      him     to     be        absolutely      immune;    dismissed


       3
       Having cited to the trial transcript in the complaint, the
Smiths’ counsel also filed a notice of hearing in which he
attached a copy of the transcript of the obstruction of justice
misdemeanor trial.   Counsel indicated that during oral argument
he intended to rely upon the transcript in responding to
Defendants’ motions to dismiss.



                                                 6
Defendants McCarthy, Bridgwater, Dixon, and Brantley from the

suit       in   their      individual       capacities,          finding      them    to   have

qualified       immunity         and    finding     no    constitutional         violations;

dismissed Defendants Rader, Dion, McDonnell, and Kaine from the

suit       in   their      individual       capacities,          finding      them    to   have

qualified immunity and/or no personal involvement; and granted

the motions to dismiss Defendants Department of State Police and

Commonwealth          of       Virginia    on     grounds       of    Eleventh       Amendment

immunity.          The trial court also found that any claims relating

to the events of February 16, 2006, including, but not limited

to,    excessive          force,       violation    of        the    Smiths’    due    process

rights, illegal entry upon the Smiths’ property, and illegal

search       and     seizure,      were    barred        by    the    applicable      two-year

statute of limitation.                 The Smiths timely appealed. 4

                As    a    preliminary       matter,          this    court    reviews       the

district court’s grant of a motion to dismiss pursuant to either

Fed. R. Civ. P. 12(b)(1) or Fed. R. Civ. P. 12(b)(6) under a de

novo       standard       of   review.      Duckworth          v.    State   Admin.    Bd.    of

Election Laws, 332 F.3d 769, 772 (4th Cir. 2003) (Rule 12(b)(6)

motions); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.

       4
       The Smiths have not appealed that portion of the trial
court’s Order dismissing the 42 U.S.C. § 1981 and § 1985 claims
and dismissing the claims of monetary relief against Defendant
Payne in his official capacity based on Eleventh Amendment
immunity.



                                                7
1999)   (Rule       12(b)(1)       motions).        When    this     court    reviews   a

district court’s Rule 12(b)(6) dismissal, it focuses only on the

legal sufficiency of the complaint.                  Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008).                  “[W]hen ruling on a defendant’s

motion to dismiss, a [trial] judge must accept as true all of

the factual allegations contained in the complaint.”                           Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).                         However,

to survive a Rule 12(b)(6) motion, “[f]actual allegations must

be   enough    to    raise     a   right   to    relief      above    the    speculative

level,” with the complaint having “enough facts to state a claim

to relief that is plausible on its face.”                       Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007).                        “[T]he tenet that a

court must accept as true all of the allegations contained in a

complaint       is     inapplicable            to    legal          conclusions”      and

“[t]hreadbare recitals of the elements of a cause of action,

supported     by     mere    conclusory        statements,”         are   insufficient.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly,

550 U.S. at 555).            A complaint may survive a motion to dismiss

only if it “states a plausible claim for relief” that “permit[s]

the court to infer more than the mere possibility of misconduct”

based upon “its judicial experience and common sense.”                             Id. at

1950 (citing Twombly, 550 U.S. at 556).

              Appellants’ first claim of error is that the district

court   applied      the     wrong    standard      in     ruling    upon    Defendants’

                                           8
motions to dismiss.           They claim the district court failed to

assume the truth of the Smiths’ complaint and to construe the

complaint      in    the   light     most      favorable     to     them.        They

specifically allege error in the district court’s reliance on

the transcript of the obstruction of justice trial in rendering

its decision.

             In considering motions to dismiss under Rule 12(b)(6),

the   court    may    properly      consider     exhibits      attached     to    the

complaint.     Fayetteville Investors v. Commercial Builders, Inc.,

936 F.2d 1462, 1465 (4th Cir. 1991).               Here, as noted above, the

Smiths cited to the trial transcript in their complaint, and

their counsel filed a copy of the transcript with the trial

court, citing his intention to rely upon it in argument on the

motions   to    dismiss.       As   such,      they   cannot      now   justifiably

complain about the trial court’s consideration of the transcript

in rendering its decision or on its reliance on the facts as

determined in that proceeding.                We have reviewed carefully the

record and find no merit to the Smiths’ claim that the district

court applied the incorrect standard in considering either the

trial transcript or the motions to dismiss or in dismissing the

Smiths’ complaint.

            The Smiths next claim reversible error by the district

court in dismissing their claims against Defendants McCarthy and

Bridgwater     as    barred   by    the   applicable       two-year     statute   of

                                          9
limitations. 5           They claim that because the complaint alleges a

conspiracy          to    convict    them,      any    events     occurring     after    the

actual alleged malicious wounding of Donna Smith on February 16,

2006, are not barred by the statute of limitations because all

such illegal acts were in furtherance of the conspiracy.                             Thus,

they       argue,    the    two-year         limitations      period    began    when    the

objective of the conspiracy was attained, which, they reason,

would be on August 2, 2006, the date Donna Smith was convicted. 6

               The       accrual    of   a    cause    of    action    under    § 1983   for

statute of limitations purposes is based on federal law.                             Nasim

v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)

(en banc); see also Wallace v. Kato, 549 U.S. 384, 388 (2007).

This       court    has    held     that     the     cause   of   action   under    § 1983

accrues “when the plaintiff possesses sufficient facts about the

harm done to him that reasonable inquiry will reveal his cause

of action.”          Nasim, 64 F.3d at 955.

               Here, the specific claims dismissed by the district

court as barred by the statute of limitations were those “claims

regarding the events of February 16, 2006 – excessive force,

violations of Plaintiffs’ due process rights, illegal entry upon



       5
      Virginia’s personal injury statute of limitations is two
years. Va. Code Ann. § 8.01-243(A).
       6
           The Complaint was filed on August 1, 2008.



                                                10
Plaintiffs’ property, illegal search and seizure, etc.”                         The

district court did not include the Smiths’ conspiracy claims in

its   dismissal    on   statute   of   limitations         grounds,    but    rather

those claims relating solely to the events of February 16, 2006.

Thus, to the extent the Smiths sought to raise claims in their

August 1, 2008, complaint expressly relating to the events of

February 16, 2006, the district court correctly dismissed such

claims as barred by the statute of limitations. 7

            The Smiths next contend that the district court erred

in finding that the actions of Defendants McCarthy, Bridgwater,

Dixon, and Brantley were protected by qualified immunity.                      They

claim on appeal that McCarthy had no right to “be vested with

qualified immunity for committing an extremely serious felony

that could have killed or seriously injured Donna Smith who had

a heart condition” and that Bridgwater had a constitutional duty

to arrest McCarthy and “to refrain from aiding in the arrest of

[the Smiths].”       Moreover, they contend that Dixon and Brantley

likewise failed in their duty to free the Smiths and that, in so

failing, the officers joined in the conspiracy to convict the

Smiths.      The     Smiths   further       claim    that     these     Defendants

continued    their      illegal   conspiracy        when    they      fixed    their

      7
       Moreover, to the extent the Smiths claim false arrest,
such claim is likewise barred by the statute of limitations.
See Wallace, 549 U.S. at 388.



                                       11
testimony prior to trial, knew that records had been altered,

and/or knew that Bridgwater and McCarthy were going to perjure

themselves      at     the    trial,    all   in    an   effort       to    fabricate      the

criminalization of Donna Smith. 8

               Qualified       immunity       protects       government            officials

performing      discretionary          functions     from    “liability           for    civil

damages    insofar       as    their     conduct      does      not    violate      clearly

established       statutory       or    constitutional          rights       of    which     a

reasonable person would have known.”                     Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).              The court must determine “whether the

plaintiff        has     alleged        the        deprivation         of     an        actual

constitutional right at all, and if so, . . . whether that right

was clearly established at the time of the alleged violation.”

Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Pearson v.

Callahan, 555 U.S. ___, 129 S. Ct. 808, 815-16 (2009).                                  For a

right     to    be     clearly     established,          “its     contours         must     be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.”                      Hope v. Pelzer, 536

U.S. 730, 739 (2002) (internal quotation marks omitted).




     8
       The Smiths include Defendant Payne in this allegation,
asserting on appeal that he was “advising the sheriff defendants
what to do [to cover up the malicious wounding and propagate the
conviction of Donna Smith for obstruction of justice].”



                                              12
               We find the district court did not engage in improper

fact-finding, or otherwise err, in determining that the officers

were entitled to qualified immunity because the Smiths failed to

allege     a   meeting       of    the   minds,   a   necessary    element   of   a

conspiracy,      and     because     the     allegations   of   conspiracy   were

conclusory.          The allegations in the Smiths’ complaint describe

that,     at   the    time   of    arrest,    these   Defendants   “conferred     at

times as an entire group and at times in smaller groups out of

earshot of plaintiffs and appeared at times to be talking on

cell phones.”          These facts, taken as true, do not establish a

meeting of the minds among the officers to violate the rights of

the Smiths.          As the district court properly held, this claim is

wholly     conclusory        and   devoid    of   sufficient    allegation   of    a

meeting of the minds.               The other similarly conclusory claims,

including the failure of the other officers to arrest McCarthy, 9

likewise fail to establish a conspiracy. 10


     9
       To the extent this claim is raised for the first time on
appeal, we decline to review it. Muth v. United States, 1 F.3d
246, 250 (4th Cir. 1993).
     10
        With regard to the Smiths’ claim that Bridgwater and
McCarthy presented perjured testimony at their trial, the
district court correctly held that such claim is subject to
dismissal because the Supreme Court has specifically held that
police officers are immune from an action arising under § 1983
for alleged perjury.   See Briscoe v. LaHue, 460 U.S. 325, 342-
43, 345 (1983).     Likewise, their claim that the Defendants
failed to provide them with allegedly “exculpatory” evidence
before trial (even assuming, arguendo, that the evidence to
(Continued)
                                             13
             As the district court held, the Smiths’ claim that the

officers’ testimony was “fixed and coordinated” prior to trial

related to the issue of whether the officers had cause to be on

the Smiths’ property on February 16, 2006.                     As the search of the

property is analyzed from an objective perspective, and as the

law enforcement officers clearly had the objective right to go

on the Smiths’ property to inquire about the green Dodge pickup

truck      and   the   possibility     that       Reier    was     present    on     the

premises, no constitutional deprivation was viably asserted by

the Smiths.        See Brigham City, Utah v. Stuart, 547 U.S. 398,

404-05     (2006);     see   also   United   States       v.    Bradshaw,    490   F.2d

1097, 1100 (4th Cir. 1974).

             Accordingly, the court did not err in finding that the

Smiths failed to assert any violation of a clearly established

constitutional right, such that Defendants McCarthy, Bridgwater,

Dixon, and Brantley would not be entitled to qualified immunity.

The   district     court’s     dismissal     of    these       Defendants    based   on

qualified immunity is affirmed. 11




which the Smiths refer is properly categorized as “exculpatory”)
was properly dismissed by the district court.       See Jean v.
Collins, 221 F.3d 656, 663 (4th Cir. 2000).
      11
        Similarly, the district court did not err in dismissing
the Smiths’ claims against any of the officials in their
official capacities, as they are afforded immunity by the
(Continued)
                                        14
              The Smiths’ next claim of error is in the district

court’s dismissal of Defendant Payne on the basis of absolute

immunity.      They assert that Payne was not protected by absolute

immunity because he “extrajudicially” conspired and advised the

police officers to arrest the Smiths on fabricated charges, to

alter the dispatch records, and to present false testimony at

the Smiths’ criminal trial, and because he allegedly withheld

exculpatory evidence.

              In Imbler v. Pachtman, the Supreme Court held that “in

initiating a prosecution and in presenting the State’s case, the

prosecutor     is   immune   from      a    civil    suit    for   damages       under

§ 1983.”      424 U.S. 409, 431 (1976).             This court has held that a

state prosecuting attorney is absolutely immune from liability

for damages for conspiring with police officers to present false

testimony     and   for   withholding       exculpatory      evidence     prior    to

trial,   as    those   actions   are       “intimately      associated    with     the

judicial process.”        Carter v. Burch, 34 F.3d 257, 262-63 (4th

Cir. 1994).      Thus, as to his alleged actions in conspiring with

police officers to present false testimony and for withholding

exculpatory      evidence    prior     to       trial,   Defendant       Payne     was

entitled to absolute immunity.             Id. at 263.



Eleventh Amendment. See Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989).



                                           15
                 With regard to their assertions relating to Defendant

Payne’s      advising       the       officers        to    arrest          them    on    fabricated

charges, the Smiths correctly argue that such an action by Payne

would be entitled only to qualified, not absolute, immunity.

See Burns v. Reed, 500 U.S. 478, 492-96 (1991).                                    However, as the

district court found, there is no specific allegation in the

complaint        that    Payne        knew     about,       gave       advice       regarding,      or

otherwise participated in the arrest and search.                                    Moreover, even

if    the    Smiths’      assertions           with     regard         to    Defendant       Payne’s

actions      relative       to    their       search       and    arrest       on    February      16,

2006, were properly pled and not wholly conclusory, such claims

would       be    barred         by     the     applicable          two-year             statute    of

limitations.         Hence, the district court properly dismissed the

Smiths’ claims against Defendant Payne.

                 In their next two arguments, the Smiths contend that

the    district         court     erred       in    dismissing          their        case    against

Defendants         Rader,        Dion,       McDonnell,          and        Kaine    (the     “State

Defendants”) based on qualified immunity.                                   The claims against

the State Defendants are based on the Smiths’ attorney’s request

to    Governor       Kaine        and        then-Attorney         General          McDonnell       to

investigate whether the deputies testified untruthfully and his

further request for the referral of the matter to a special

prosecutor,        together           with    Assistant          Attorney          General    Dion’s



                                                   16
statement to the Smiths’ attorney that the Attorney General’s

Office was without authority to act on his request.

            In this case, because the Smiths had no right 12 to a

criminal investigation or criminal prosecution of another, see

Sattler    v.    Johnson,   857   F.2d    224,     227   (4th    Cir.   1988),   the

district court properly determined that they failed to allege

the     violation     of    a     clearly        established       statutory      or

constitutional right.        See Harlow, 457 U.S. at 818.                Thus, the

district    court     correctly        held   that       the    individual     State

Defendants were entitled to qualified immunity.                   Moreover, based

on    absolute    prosecutorial        immunity,     former     Attorney     General

McDonnell and Assistant Attorney General Dion cannot be sued in

any event for their decision not to prosecute the officers.                      See

Imbler, 424 U.S. at 431. 13,      14




      12
        Nor do private citizens have standing to request the
prosecution of another. Linda R.S. v. Richard D., 410 U.S. 614,
619 (1973).
      13
        As noted above as to Defendants McCarthy, Bridgwater,
Dixon, and Brantley, there was no error in the district court’s
dismissal of the Smiths’ claims against the State Defendants in
their official capacities, as they also are afforded immunity by
the Eleventh Amendment. See Will, 491 U.S. at 71.
      14
        While not set forth in a separate argument in their
brief, the Smiths also argue that the district court erred in
dismissing their claims against the Commonwealth of Virginia and
the Virginia State Police. This claim has no merit. See Will,
491 U.S. at 64, 71; see also Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 280-81 (1977).



                                         17
            The Smiths’ final claim is that the Defendants should

be   precluded       from   basing   any    defense   on     Donna    Smith’s

obstruction of justice conviction.          As this issue was not raised

before the district court, we decline to consider it on appeal.

See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

            Accordingly, we affirm the district court’s dismissal

of   the   Smiths’    complaint.     We    dispense   with   oral    argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                     AFFIRMED




                                     18
