# Kennedy v. Rowe

> District Court, E.D. North Carolina · October 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10252898

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** October 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CV-264-D

JAMEY KENNEDY )
) Plaintiff,
v. ORDER
- WILLIE ROWE, et al., .
Defendants.

On May 18, 2023, Jamey Kennedy (“Kennedy” or “plaintiff’) filed a complaint in this court
against (1) Maria Fuentes (“Fuentes”), individually and in her official capacity as a Wake County
Deputy Sheriff; (2) Wake County; and (3) Willie Rowe (“Rowe”), individually and in his official
capacity as Sheriff of Wake County (collectively, “defendants”). See [D.E. 1]. Kennedy alleges two
violations of the Fourth Amendment of the United States Constitution under 42 U.S.C. § 1983
(against all three defendants); a violation of Article 1, Section 19 of the North Carolina Constitution
(against Fuentes only); false imprisonment (against Fuentes only); trespass to chattel (against Fuentes
only); and a violation of Monell v. Department of Social Services, 436 U.S. 658 (1978) (against
Wake County only). See id. Kennedy seeks compensatory and punitive damages. See id. On
August 7, 2023, Wake County filed an answer [D.E. 9] and moved to dismiss the complaint for
failure to state a claim upon which relief can be granted [D.E. 10]. See Fed. R. Civ. P. 12(b)(6). On
August 17, 2023, Kennedy responded in opposition [D.E. 12]. As explained below, the court grants
Wake County’s motion to dismiss and dismisses Kennedy’s claims against Wake County.

I,
The Wake County Sheriff's Office (“Sheriff's Office”) is the primary law enforcement
agency for Wake County. See Compl. [D.E. 1] 46. Willie Rowe is the elected Sheriff, and Maria
Fuentes is a Deputy Sheriff. See Compl. ff 7-10. In November 2022, Fuentes received an
anonymous drug complaint concerning Jamey Kennedy and Joseph Misuraca (““Misuraca”). See
Compl. ff 11, 13-14. Based on a police report, Fuentes assumed Kennedy and Misuraca resided at
5020 Silvers Road, Raleigh, North Carolina. See id. During the week of December 26, 2022,
Fuentes surveilled the residence but observed no activity other than two unknown drivers at the
residence. See Compl. ff 14-15.
On January 3, 2023, Fuentes and other deputies returned to the residence, and Fuentes
knocked on the door. See Compl. ff 16-18. Jane Kennedy, Kennedy’s mother, answered the door,
propped the door open, and confirmed Kennedy was home. See id. at JJ 18-19. Officers then
entered the residence without a warrant, and it is disputed whether Jane Kennedy consented to the
entry. See id. at 21. Once inside, Fuentes entered Kennedy’s bedroom, where Fuentes smelled
marijuana and found paraphernalia. See id. at {J 22-26. Fuentes and the other deputies then
searched the entire residence. See id. at f] 27, 29. During the search, deputies found and
confiscated a .38 pistol from a locked safe in Kennedy’s bedroom. See id. at {] 27-30. During the
search, deputies also damaged Kennedy’s bedroom furniture. See id. at { 28.
While the deputies were searching the residence, Misuraca arrived at the residence in a
vehicle. See id. at 132. Fuentes saw Misuraca stuffing an unknown item between the seat and door
of the vehicle. See id. Upon approaching the vehicle and observing a small plastic bag on the
vehicle’s floorboard, Fuentes searched the vehicle without a warrant. See id. Fuentes found
cocaine. See id, Following this search, deputies arrested Misuraca and charged him with several

crimes, including possession of a firearm by a felon for the .38 pistol found in Kennedy’s bedroom.
See id. at ¢ 36. Kennedy alleges that the deputies eventually obtained a search warrant to search
Kennedy’s residence, but the search warrant did not include the safe in Kennedy’s bedroom or the
vehicle. See id. at f] 29, 34-37. The Sheriff’ □ Office remains in possession of the pistol seized from
Kennedy’s bedroom. See id. at § 38. Kennedy was not a felon on January 3, 2023, or otherwise
legally prohibited from possessing the pistol. See id. at J 31.
II.
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); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S.
30 (2012); 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 (quotation omitted); see Twombly, 550 U.S. at
570; Giarratano, 521 F.3d at 302. 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, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155
(2015). A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,
unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal,
556 U.S. at 678-79. Rather, a plaintiff’ factual allegations must “nudge[] [her] claims,” Twombly,
550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at
678-79. .

When evaluating a motion to dismiss, a court considers the pleadings and any materials
“attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822
F.3d 159, 165-66 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court
also may consider a document submitted by a moving party if it is “integral to the complaint[,] and
there is no dispute about the document’s authenticity” without converting the motion into one for
summary judgment. Goines, 822 F.3d at 166. “[I]n the event of conflict between the bare
allegations of the complaint and any exhibit attached .. . , the exhibit prevails.” Id. (quotation
omitted); see Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
Additionally, a court may take judicial notice of public records. See, e.g., Fed. R. Evid. 201;
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem’
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Il.
When a municipal entity is sued under section 1983—directly or through an official-capacity
suit—the plaintiff must plausibly allege that a “policy or custom” attributable to the municipal entity
caused the violation of the plaintiff's federally protected rights. See, e.g., Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 410 (1997); Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473
U.S. 159, 166 (1985); Monell, 436 U.S. at 690-94; King v. Rubenstein, 825 F.3d 206, 223 (4th Cir.
2016); Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 469-70 (4th Cir. 2013); Robinson
v. Best, No. 4:21-CV-44, 2023 WL 5616172, at *12-13 (E.D.N.C. Aug. 30, 2023); Adams v. New
Hanover Cnty. Det. Ctr., No. 5:16-CT-3020, 2017 WL 7513347, at *3 (E.D.N.C. June 30, 2017)
(unpublished), aff'd sub nom. Adams v. New Hanover Caty. Det. Facility, 703 F. App’x 202 (4th
Cir. 2017) (per curiam) (unpublished). A violation results from a municipal entity’s “policy or

custom” if the violation resulted from “a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers,” or a governmental “custom.” Monell,
436 U.S. at 690-91; see City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988). A county may
be held liable under section 1983 only “for acts for which the county has final policymaking
authority.” Worrell v. Bedsole, 110 F.3d 62, 1997 WL 153830, at *5 (4th Cir. 1997) (unpublished
table decision); see Praprotnik, 485 U.S. at 124—25.
Whether a county has final policymaking authority on a specific issue is a question of state
law. See Praprotnik, 485 U.S. at 123; Worrell, 1997 WL 153830, at *5. A court focuses on how
state law allocates power and responsibility to determine this issue. See, e.g., McMillian v. Monroe
County, 520 U.S. 781, 786 (1997); Knight v. Vernon, 214 F.3d 544, 552 (4th Cir. 2000); Parker v.
Bladen County, 583 F. Supp. 2d 736, 739 (E.D.N.C. 2008).
The North Carolina Constitution established the “office of the sheriff.” Young v. Bailey, 368
N.C. 665, 669, 781 S.E.2d 277, 280 (2016). “[S]heriffs have substantial independence from county
government.” Parker, 583 F. Supp. 2d at 739. County governments do not hire sheriffs or their .
deputies. See, e.g., id.; Little v. Smith, 114 F. Supp. 2d 437, 446 (W.D.N.C. 2000). Sheriffs are
elected, and county governments do not supervise sheriffs or deputy sheriffs. Young, 368 N.C. at
669-70, 781 S.E.2d at 280. Thus, under North Carolina law, any allegations concerning personnel,
training, supervision, or other law enforcement policies in the sheriff’ s office fall within the sheriffs
policymaking authority and are not attributable to the county. Id., 781 S.E.2d at 280; see Knight,
214 F.3d at 552-53; Worrell, 1997 WL 153830, at *5; Fuller v. Dixon, No. 7:21-CV-40, 2022 WL
3328877, at *4 (E.D.N.C. Aug. 11, 2022) (unpublished); McCollum v. Robeson County, No.
5:15-CV-451, 2016 WL 3067723, at *1—2 (E.D.N.C. May 27, 2016) (unpublished); Parker, 583 F.
Supp. 2d at 739-40; Little, 114 F. Supp. 2d at 446.

In opposition to this conclusion, Kennedy cites two cases. First, Kennedy cites Wilcoxson
v. Buncombe County, where the United States District Court for the Western District of North
Carolina held that the sheriff was the ultimate policymaker concerning law enforcement matters for
Buncombe County, and thus the county could be held liable for the sheriff's conduct. See Wilcoxson

_ ¥. Buncombe County, 129 F. Supp. 3d 308, 317 (W.D.N.C. 2014). This ruling, however,
contradicts North Carolina law. See Knight, 214 F.3d at 552; Worrell, 1997 WL 153830, at *5;
Fuller, 2022 WL 3328877, at *4; Parker, 583 F. Supp. 2d at 739-40; Little, 114 F. Supp. 2d at 446;
Young, 368 N.C. at 669-70, 781 S.E.2d at 280.' Second, Kennedy cites McMillian v. Monroe
County, 520 U.S. at 783, where the Supreme Court considered a county's liability and a sheriff's
liability in Alabama. The analysis of Alabama law in McMillian, however, does not apply here.
Whether a county has final policymaking authority on a specific issue is a question of state law, and
North Carolina state law is clear. See Praprotnik, 485 U.S. at 123; Knight, 214 F.3d at 552; Worrell,
1997 WL 153830, at *5; Young, 368 N.C. at 669-70, 781 S.E.2d at 280. Thus, Wilcoxson and
McMillian provide no comfort to Kennedy.
Kennedy’s section 1983 claims arise out of the residence and vehicle search on January 3,
2023, in Wake County. See Compl. ff 16, 39-64, 81-88.? Kennedy incorrectly assumes that the
Board of County Commissioners for Wake County supervises the Sheriff and the Sheriff's Office.
See Compl. Jf 6—7, 39-64, 81-88; cf. Young, 368 N.C. at 669-70, 781 S.E.2d at 280. The court

' In 2014, the Wilcoxson court did not have the benefit of the Supreme Court of North
Carolina’s decision in Young, 368 N.C. at 669-70, 781 S.E.2d at 280. The Wilcoxson decision
conflicts with Young.
2 Kennedy brings claims under both section 1983 and Monell. Monell, however, is not a
cause of action. See Monell, 436 U.S. at 691. Rather, Monell stands for the proposition that
municipalities are persons under section 1983 and can be sued under section 1983. See id.

need not accept Kennedy’s incorrect legal conclusion. See Iqbal, 556 U.S. at 678-79; Twombly, 550
U.S. at 555. Wake County does not supervise or have final policymaking authority over the Sheriff
or the Sheriff’s Office. See, e.g., Young, 368 N.C. at 669-70, 781 S.E.2d at 280. Kennedy has
failed to plausibly allege “that the constitutional violation was undertaken to effectuate an official
policy or custom of the county;” therefore, Kennedy’s claims against Wake County fail. Evans v.
Onslow County, No. 5:16-CT-3267, 2017 WL 1900274, at *2 (E.D.N.C. May 8, 2017)
(unpublished); see Johnson v. Allen, 416 F. Supp. 3d 550, 557 (E.D.N.C. 2018). Thus, Kennedy has
failed to state a claim against Wake County, and the court dismisses Wake County as a defendant.
IV.
In sum, the court GRANTS defendant Wake County’s motion to dismiss [D.E. 10] and
DISMISSES WITH PREJUDICE Wake County as a defendant. Plaintiff may proceed with her
claims against the remaining defendants.
SO ORDERED. This !6 day of October, 2023.

United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10252898. Public record. Not legal advice.