“The ‘limitation period’ for purposes of analyzing whether the newly added defendant received notice and should have had knowledge of the action is the Federal Rule of Civil Procedure 4(m) service period.”
How later courts described this case
- “The ‘limitation period’ for purposes of analyzing whether the newly added defendant received notice and should have had knowledge of the action is the Federal Rule of Civil Procedure 4(m) service period.”
- noting that the use of such materials has “but one limitation: the document must be of unquestioned authenticity”
- finding probable cause for the arrest and thus no “essential constitutional violation underlying 1983 claim”
- stating that pro se complaints must be “liberally construed”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ZARED KINAH JONES, )
)
Plaintiff, )
)
v. ) 1:19CV930
)
S.A. ALVAREZ, J.M. CHAVEZ, )
K.R. JOHNSON, F.T. WRIGHT, )
CITY OF GREENSBORO, WAYNE )
SCOTT, S.K. FLOWERS, )
SGT. S.K. WRIGHT, A.G. LEWIS, )
D.C. FLEMING, D.M. HARMON, )
J.T. HARRILL, and M.J. MOLSON, )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion to Dismiss
Plaintiff’s Amended Complaint filed by Defendants S.A. Alvarez,
J.M. Chavez, K.R. Johnson, F.T. Wright, Wayne Scott, S.K.
Flowers, and the City of Greensboro. (Doc. 22.) Also before the
court is a Motion to Dismiss Plaintiff’s Amended Complaint filed
by Defendants A.G. Lewis, D.C. Fleming, D.M. Harmon, J.T.
Harrell and M.J. Molson. (Doc. 37.) On September 18, 2020,
Plaintiff, proceeding pro se, filed a Motion for Extension of
Time to Respond, (Doc. 44), seeking additional time to respond
to Defendants’ Motion to Dismiss, (Doc. 37). This final Motion
to Dismiss was filed in February, 2020, (id.), more than six
months prior to Plaintiff’s most recent Motion for Extension of
Time. Thus, Plaintiff’s Motion for Extension of Time is
untimely. Moreover, Plaintiff has already responded to
Defendants’ Motion to Dismiss by filing a Response. (Doc. 43).
For these reasons, this motion will be denied.
I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
A. Statement of the Facts
On a motion to dismiss, a court must “accept as true all of
the factual allegations contained in the complaint . . . .” Ray
v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). The facts, taken in
the light most favorable to Plaintiff and as alleged in the
Amended Complaint are as follows.
Plaintiff alleges that he and three companions arrived in
downtown Greensboro around 10:30 p.m. on September 9, 2016.1
(Amended Compl. (“Am. Compl.” (Doc. 16) at 7.)2 At various times
1 Although Plaintiff alleges in the Amended Complaint the
dates of “9/10/2016-09/11-2016” as the relevant dates, (Am.
Compl. (Doc. 16) at 6), Plaintiff concedes in his response that
the relevant time period is from 10:30 p.m. on September 9, 2016
through 4:00 a.m. on September 10, 2016, (Doc. 39 at 10). This
court finds that the relevant activity occurred on September 9
and 10, 2016.
2 All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
after arrival, Plaintiff alleges three unconstitutional
interactions with law enforcement.
The first interaction occurred on South Elm Street in
downtown Greensboro. (Am. Compl. (Doc. 16) at 7.) Plaintiff
alleges that he was surrounded by Officers Alvarez, Chavez,
Johnson, F.T. Wright, Flowers, S.K. Wright3, Lewis, Fleming,
Harmon, Harrill, and Molson of the Street Team Bike Squad. (Id.)
Plaintiff further alleges that these officers unlawfully
restrained his movement and he was detained and unlawfully
interrogated. (Id.) Plaintiff contends he was required to answer
questions. (Id.) After a prolonged period of time, Plaintiff
alleges he was then granted permission to leave. (Id.) Plaintiff
generally refers to violations of his 14th and 5th Amendment
rights. (See id. at 5.) However, this first law enforcement
interaction is more appropriately construed as a claim of
3 Plaintiff alleges claims against a defendant identified as
“S.K. Wright.” However, as Defendants point out, there has never
been service upon an individual identified as “S.K. Wright.”
(See Doc. 23 at 3 n.1; Doc. 29; Doc. 38 at 2.) Those claims will
be dismissed without prejudice for failure to effect service of
process as required by Fed. R. Civ. P. 4(m).
unconstitutional detention in violation of the Fourth Amendment
prohibition against unreasonable seizure.4
After being allowed to leave, Plaintiff alleges the second
unconstitutional interaction occurred when these same officers
conducted “unwarranted surveillance” by following Plaintiff for
several blocks on North Elm Street, up until he arrived at his
destination on West McGee Street. (Id.)
The third interaction occurred after Plaintiff arrived at
his destination on North Elm Street, the “Boiler Room”
establishment. Plaintiff alleges he was assaulted by two unknown
assailants at the Boiler Room. (Id.) Plaintiff alleges two
separate unconstitutional actions by law enforcement during this
interaction at the Boiler Room.
First, Plaintiff contends he sought assistance from the
officers and was then improperly detained. Plaintiff alleges
that he approached Alvarez and asked for help; at which point he
was told to “Go Away You Dont [sic] Belong Down Here.” (Id.)
4 Although a court is required to construe pro se pleadings
liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), such
liberal construction does not “undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(citations omitted). Plaintiff’s claim of a Fifth Amendment
violation, or a separate due process violation under the
Fourteenth Amendment, are simply labels which have no basis in
fact as to this first interaction.
Plaintiff then approached Johnson and asked for help, though
Johnson initially refused assistance. However, Johnson then
“agreed to adhere to established policy and began an
investigation establishing [Plaintiff’s] role as a
victim/complaining witness.” (Id. at 10.) Johnson then allegedly
walked away with Plaintiff’s driver’s license and refused to
return it. Plaintiff contends he was detained by Johnson’s act
of retaining Plaintiff’s driver’s license. (Id.) Plaintiff also
alleges Johnson detained him by show of authority. (Id.)
Second, Plaintiff contends he was unconstitutionally
arrested at the Boiler Room by Flowers and Alvarez. Plaintiff
alleges that Flowers approached the door of the Boiler Room,
where a civilian “concoct[ed] or other wise [sic] manufactur[ed]
false evidence.” (Id.) Flowers then ordered Plaintiff to leave.
(Id.) Plaintiff appears to contend that he could not leave as
directed because Johnson still had Plaintiff’s license. (Id.)
Plaintiff alleges that Flowers then committed assault and
battery “by touching and handling [Plaintiff’s] body while
placing [him] under arrest with out [sic] Valid [sic] warrant or
probable cause.” (Id. at 11.) Plaintiff alleges that Alvarez
then obtained a “false warrant” by falsely alleging that
Plaintiff had remained after having been notified not to enter
or remain upon the premises. (Id.) Plaintiff alleges “Officers
Alvarez, D.M. Harmon, F.T. Wright, and J.M. Chavez conspired to
and did fabricate false charges,” (id.), and Alvarez and Flowers
conspired to unlawfully arrest Plaintiff. (Id.)5
This court construes Plaintiff’s claim as to this third
interaction to allege unconstitutional detention with respect to
Johnson, followed by an unconstitutional detention and arrest by
other officers - all in violation of the Fourth Amendment.
Plaintiff asserts these constitutional claims pursuant to 42
U.S.C. § 1983. (Am. Compl. (Doc. 16) at 4-5.)
B. Procedural History
Plaintiff, Zared Kinah Jones, proceeding pro se, brings
this action pursuant to 42 U.S.C. § 1983. Plaintiff filed his
original complaint on September 10, 2019. (Doc. 2.) Plaintiff
filed an Amended Complaint, (Doc. 16), on December 9, 2019, and
named as Defendants the following: the City of Greensboro (“the
City”); Wayne Scott, as the Chief of Police; and Greensboro
5 Plaintiff alleges in several instances that actions were
directed toward Plaintiff and his “companions.” (See Compl.
(Doc. 16) at 11.) Plaintiff’s allegations with respect to
actions taken toward his “companions” may be somehow relevant to
explain the interactions, but Plaintiff has no standing to
assert claims on behalf of his “companions” and the allegations
of the Amended Complaint are too vague to support a finding as
to whether law enforcement’s actions directed at the
“companions” were proper or improper.
Police officers S.A. Alvarez, J.M. Chavez, K.R. Johnson6, F.T.
Wright, S.K. Flowers, A.G. Lewis, D.C. Fleming, D.M. Harmon,
J.T. Harrill, and M.J. Molson. Defendants Alvarez, Chavez, City
of Greensboro, Flowers, Johnson, Scott, and Wright filed a
motion to dismiss. (Doc. 22.) Defendants Fleming, Harmon,
Harrill, Lewis, and Molson also filed a motion to dismiss. (Doc.
37.) Plaintiff has filed a number of additional documents,
including a response, (Doc. 39); an affidavit, (Doc. 40); a
second response, (Doc. 43); and a third response with
accompanying brief, (Docs. 45, 46).
II. STANDARD OF REVIEW
Defendants move to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (Doc. 22 at 1; Doc. 37 at 1.) “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In other words, the plaintiff must plead facts that “allow[] the
court to draw the reasonable inference that the defendant is
6 Plaintiff identifies an officer as “Jhonson” in the
Amended Complaint. (See, e.g., Doc. 16 at 4, 6, 7.) It appears
the correct spelling of that individual’s name is “Corporal
Korey R. Johnson.” (See Doc. 7 at 4.) This court will use the
spelling of “Johnson” instead of “Jhonson.”
liable” and must demonstrate “more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556–57).
When ruling on a motion to dismiss, this court must accept
the complaint’s factual allegations as true. Iqbal, 556 U.S. at
678. Despite this deferential standard, a court will not accept
mere legal conclusions as true, and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, [will] not suffice.” Id.
Pro se plaintiffs are subject to a relaxed pleading
standard. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(stating that pro se complaints must be “liberally construed”);
see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However,
these plaintiffs must still plead facts that fairly put the
defendant on notice of the nature of the claims and “contain
more than labels and conclusions.” Giarratano v. Johnson, 521
F.3d 298, 304 & n.5 (4th Cir. 2008) (quoting Twombly, 550 U.S.
at 555).
Defendants Alvarez, Chavez, Johnson, Wright, Scott,
Flowers, and the City of Greensboro filed their motion seeking
dismissal of all claims. (Doc. 22.) Defendants Lewis, Fleming,
Harmon, Harrill, and Molson filed a separate motion to dismiss,
(Doc. 37), which incorporates and joins in the arguments raised
by the other Defendants. (See Doc. 38 at 4.) Defendants Lewis,
Fleming, Harmon, and Harrill also raise a separate statute of
limitations argument. (See id.) This court will first address
the arguments that are applicable to all Defendants. The court
will then turn to the separate statute of limitations issue.
III. ANALYSIS
A. Plaintiff’s General Claims
1. Municipal Liability
To prevail on a § 1983 claim, Plaintiff must show that he
was deprived of a federal statutory or constitutional right and
that deprivation “was committed under color of state law.” Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, (1999).
Assuming Plaintiff establishes a prima facie case, municipal
liability will attach only if the deprivation is also caused by
“an official policy or custom.” Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999).
Because section 1983 was not designed to impose
municipal liability under the doctrine of respondeat
superior, the “official policy” requirement was
“intended to distinguish acts of the municipality from
acts of employees of the municipality, and thereby
make clear that municipal liability is limited to
action for which the municipality is actually
responsible.” Pembaur v. City of Cincinnati, 475 U.S.
469, 479, 106 S. Ct. 1292, 89 L.Ed.2d 452 (1986).
Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d 518, 523
(4th Cir. 2000). As another district court in this circuit
persuasively explains:
a municipality is not liable simply because a
plaintiff “is able to identify conduct attributable to
the municipality.” Riddick, 238 F.3d at 524. Rather,
“[t]he plaintiff must also demonstrate that, through
its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged.” [Bd. of
Cnty. Comm’rs of Bryan Cnty. v.] Brown, 520 U.S.
[297,] 404 [1997].
Hill v. Robeson Cnty., 733 F. Supp. 2d 676, 684 (E.D.N.C. 2010).
Specifically, Plaintiff must show that the “municipal decision
reflects deliberate indifference to the risk that a violation of
a particular constitutional or statutory right will follow the
decision.” Brown, 520 U.S. at 411. Plaintiff alleges a series of
acts in his Amended Complaint that implicate individual law
enforcement officers. However, his allegations that the
“Officers named have all been trained and had knowledge of the
law,” (Am. Compl. (Doc. 16) at 7), or that the City “[f]ailed to
insure proper supervision and discipline of Defendant Officers
in their duties,” (id. at 11), are insufficient to plausibly
allege an official policy or custom. These are “‘naked
assertion[s]’ devoid of ‘further factual enhancement,’” and
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Iqbal, 556 U.S. at
678. The City of Greensboro’s motion to dismiss will be granted.
2. Supervisory Liability
Similarly, Plaintiff has failed to state a supervisory
liability claim against Defendant Scott as Chief of Police.
Scott was not present when the complained-of activity occurred.
Instead, Plaintiff alleges Scott “failed in his obligations to
control the officers under his authority” and “failed to
discipline Officers in accordance with Directives.” (Am. Compl.
(Doc. 16) at 11.) These allegations are insufficient to
plausibly allege liability as to Scott.
“[S]upervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their
subordinates . . . premised upon . . . ‘a recognition that
supervisory indifference or tacit authorization of subordinates’
misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.’” Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citations omitted).
To establish supervisory liability under § 1983, a plaintiff
must show:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge
was so inadequate as to show “deliberate indifference
to or tacit authorization of the alleged offensive
practices,”; and (3) that there was an “affirmative
causal link” between the supervisor’s inaction and the
particular constitutional injury suffered by the
plaintiff.
Id. at 799 (citations omitted); see also Wilkins v. Montgomery,
751 F.3d 214, 226 (4th Cir. 2014). To establish the first
element of actual or constructive knowledge, “a plaintiff must
show the following: (1) the supervisor’s knowledge of (2)
conduct engaged in by a subordinate (3) where the conduct poses
a pervasive and unreasonable risk of constitutional injury to
the plaintiff.” Shaw, 13 F.3d at 799.
The Amended Complaint is devoid of any allegations that
might plausibly establish Police Chief Scott’s actual or
constructive knowledge that any of these officers were engaged
in conduct that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like Plaintiff. Instead of
allegations within the Amended Complaint, Plaintiff has
submitted several alleged articles and essays with his brief.
(Docs. 39-1 through 39-6.) However, a plaintiff may not amend
his complaint through responsive briefing. Hurst v. District of
Columbia, 681 F. App’x 186, 194 (4th Cir. 2017).
Even assuming these articles could somehow be incorporated
in the Amended Complaint, these articles are insufficient to
establish knowledge of wrongdoing by either Scott or the City of
Greensboro as to constitutional injury. For example, Exhibit A,
(Doc. 39-1), and Exhibit E, (Doc. 39-5), describe allegations
relating to homeless individuals and concerns over proposed city
ordinances, none of which is relevant here. Even if relevant,
none of that information plausibly establishes a pattern or
practice in 2016, when the events described in the Amended
Complaint took place.
Similarly, the Exhibit B, (Doc. 39-2), is an unverified and
unidentified article describing alleged police abuse from 1969
to 2018. It is insufficient to plausibly establish the knowledge
of wrongdoing necessary to sustain either a supervisory claim
against Scott or a claim against the City of Greensboro.
In short, none of the submissions, even if they could be
considered by this court as within the scope of the complaint,
plausibly support a claim of supervisory liability as to Scott
or liability as to the City of Greensboro.
The claims against Scott and the City of Greensboro will be
dismissed.
3. Conspiracy Claims
Plaintiff alleges that “[t]he conspiring to deprive [him]
of [his] rights violated Plaintiff Zared Jones’ rights and
constituted conspiracy to deprive [him] of [his] rights a
violation under (34 U.S.C. § 12601),” (Am. Compl. (Doc. 16) at
5), and that various officers “conspired” to fabricate false
charges and unlawfully arrest him, (id. at 11).
34 U.S.C. § 12601 . . . prohibits certain agencies
from “[e]ngaging in an unlawful pattern or practice
. . . that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or
laws of the United States.” 34 U.S.C. § 12601(a).
However, the statute does not create a private cause
of action. See id. Instead, the statute only provides
that the Attorney General “may in a civil action
obtain appropriate equitable and declaratory relief to
eliminate the pattern or practice.” 34 U.S.C.
§ 12601(b).
Graham v. Sec’y of the Army, No. 5:17-CV-502-FL, 2018 WL
4623646, at *3 (E.D.N.C. Sept. 26, 2018). Plaintiff’s conclusory
allegation that Defendants’ actions were a violation of 34
U.S.C. § 12601 fails to state a claim.
With respect to Plaintiff’s allegations of conspiracy, the
Fourth Circuit first applied the intracorporate conspiracy
doctrine to civil rights claims in Buschi v. Kirven, 775 F.2d
1240, 1251-53 (4th Cir. 1985). The intracorporate conspiracy
doctrine recognizes that a corporation cannot conspire with
itself, and the acts of the agent are the acts of the
corporation. Id. at 1251.
All of the remaining defendants are employees of the
Greensboro Police Department, (Am. Compl. (Doc. 16) at 6), and
all of the actions alleged occurred within the scope of their
employment as law enforcement officers, (see generally Am.
Compl. (Doc. 16).) Plaintiff has not alleged that the actions
were outside the scope of their employment as might meet an
exception to the doctrine. See Dowdy v. Pamunkey Reg’l Jail
Auth., Civil Action No. 3:14-cv-003-JAG, 2014 WL 2002227, at *10
(E.D. Va. May 15, 2014) (“The Amended Complaint . . . alleges
only shortcomings and omissions in those employees’ performance
of their duties — not that they involved themselves in
extracurricular, unauthorized activities.”). In applying the
intracorporate conspiracy doctrine involving law enforcement
officers, another district court in this circuit persuasively
explains:
plaintiff’s claim fails under the intracorporate
conspiracy doctrine because Officers Ojeda and Jones
are agents of a single entity, namely the Leesburg
Police Department, and thus cannot legally conspire
with one another. See Buschi v. Kirven, 775 F.2d 1240,
1252–53 (4th Cir. 1985); see also Locus v.
Fayetteville State University, 870 F.2d 655 (Table),
1989 WL 21442 (4th Cir. March 8, 1989) (unpublished
disposition).
Veney v. Ojeda, 321 F. Supp. 2d 733, 748 (E.D. Va. 2004). This
court finds Plaintiff has failed to state a claim of conspiracy
to violate his constitutional rights under § 1983.
B. First Interaction with Law Enforcement
1. Statute of Limitations
Defendants argue that the applicable statute of limitations
has run as to the first interaction between Plaintiff and
Defendants, which occurred in downtown Greensboro around 10:30
p.m. on September 9, 2016. (Am. Compl. (Doc. 16) at 7.) While
Defendants make a relatively strong argument that may be borne
out following discovery, after drawing all reasonable inferences
in favor of Plaintiff, this court finds factual issues preclude
dismissal on the basis of the statute of limitations. The facts
do not support a finding as to the date and time of the first
interaction between Plaintiff and Defendants at this stage of
the proceedings.
This court disagrees with Defendants’ assertion that “[t]he
Amended Complaint specifically alleges that the events in
Paragraph 1 took place ‘around 10:30 pm.’” (Doc. 23 at 12.)
Instead, the Complaint alleges Plaintiff “arrived on [S]outh Elm
Street . . . in downtown [G]reensboro around 10:30 pm with three
companions.” (Am. Compl. (Doc. 16) at 7.) For purposes of this
motion, this court finds Plaintiff arrived in downtown
Greensboro at 10:30 p.m. – however, the Amended Complaint does
not provide sufficient facts to determine whether the initial
encounter between Plaintiff and Defendants took place on
September 9 or September 10.
Defendants point out that the original complaint states
that the date and time the events took place was “09/10/2016
around 12:30 AM.” (Doc. 2 at 5.) While there may be a dispute
over the actual time of the relevant events, this court finds an
issue of fact exists as to whether the first alleged seizure
took place on September 9 or September 10, 2016. Defendants’
motion to dismiss the claims arising from the first encounter
based upon the applicable statute of limitations is predicated
upon a factual finding that the initial interaction took place
on September 9, 2016. That may ultimately prove to be true, but
this court cannot find, at this point in the proceedings,
whether the initial interaction took place on September 9 or 10.
The motion will be denied.
2. Bystander Liability
Plaintiff also asserts a claim alleging that Defendants
“failed to intervene and protect [him] from constitutional
violations by fellow officers.” (Am. Compl. (Doc. 16) at 11.)
This court construes the Amended Complaint to allege a § 1983
bystander liability claim.
The Fourth Circuit has adopted the following standard in
determining whether bystanding officers are required to act:
an officer may be liable under § 1983, on a theory of
bystander liability, if he: (1) knows that a fellow
officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent
the harm; and (3) chooses not to act.
Randall v. Prince George’s Cnty., 302 F.3d 188, 204 (4th Cir.
2002) (footnote omitted).
This court has found that Plaintiff’s claim as to an
unconstitutional detention in his initial confrontation with law
enforcement should not be dismissed on statute of limitations
grounds, and Defendants Alvarez, Chavez, Johnson, F.T. Wright,
Flowers, Lewis, Fleming, Harmon, Harrill, and Molson do not
challenge the substantive claim on the merits. These officers
are all part of the alleged unconstitutional detention as
described by Plaintiff. (Am. Compl. (Doc. 16) at 7 (“officers .
. . [s]urrounded my companions and I. By doing so they did by
show of authority block my free passage . . . . Officers . . .
did by show of authority surrounded me and demanded personal and
[p]rivate answers/information.”).) It is premature to attempt to
determine, as a factual matter, which officers may have
conducted the detention, which officers may have been merely
bystanders, whether reasonable suspicion existed, or whether any
detention was in fact unconstitutional. Plaintiff has alleged
facts, presently unchallenged, that the officers violated his
constitutional rights by detaining Plaintiff, that all officers
had a reasonable opportunity to prevent the harm, and that any
bystanding officers did not act. The motion to dismiss the
bystander claim will therefore be denied as to a claim of an
unlawful detention.
C. Second Interaction with Law Enforcement
Defendants argue Plaintiff’s allegations of “unwarranted
surveillance” do not state a constitutional claim. Defendants
argue any surveillance did not amount to a seizure, see
California v. Hodari D., 499 U.S. 621 (1991), and there was no
search because “police may see what may be seen ‘from a public
vantage point where they have a right to be,’” see Florida v.
Riley, 488 U.S. 445, 449 (1989) (quoting California v. Ciraolo,
476 U.S. 207, 213 (1986)). (Doc. 23 at 15-16.) This court
agrees.
The Fourth Amendment only prohibits unreasonable searches
and seizures. Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977). “What a person knowingly exposes to the public . . . is
not a subject of Fourth Amendment protection.” Katz v. United
States, 389 U.S. 347, 351 (1967). “[N]o Fourth Amendment search
occurs if a police officer makes observations while in a public
place or open field, even if the objects he observes lie within
an area protected by the Fourth Amendment. Reeves v. Churchich,
484 F.3d 1244, 1254 (10th Cir. 2007).
Plaintiff’s claim of “unwarranted surveillance” fails to
allege the violation of any constitutional right. Because none
of Plaintiff’s rights were implicated by law enforcement
officers following and watching him on a public street, this
claim will be dismissed.
D. Third Interaction with Law Enforcement
1. Qualified Immunity for Johnson’s Seizure of the
License
Defendants argue Johnson is entitled to qualified immunity
as to the third interaction with law enforcement. Plaintiff
complained about an assault, and Johnson agreed to investigate.
As part of that investigation, Johnson took Plaintiff’s driver’s
license. This court finds Plaintiff has failed to allege an
unconstitutional action by Johnson, but in the alternative, this
court agrees Defendant Johnson is entitled to qualified
immunity.
Plaintiff alleges he was unconstitutionally seized when
Johnson took the license and refused to return it. However, this
interaction began as a consensual police encounter: Plaintiff
sought Johnson’s assistance with reporting an assault. (See Am.
Compl. (Doc. 16) at 10 (“I approached Defendant Cpl. S.K.
Johnson. I pleaded for help after my assault. . . . After
denying several requests for help Defendant agreed to adhere to
established policy and began an investigation.”).) As part of
the interaction, Johnson requested Plaintiff’s license. (Id.)
Plaintiff alleges that he requested return of the license,
thereby revoking his consent. However, Plaintiff’s conclusory
allegation that the driver’s license was “no longer needed
making the seizure unnecessary,” (id.), is an unsupported
conclusion, for which no deference is required. Plaintiff
requested police assistance; absent some allegation of fact, he
cannot turn the act of assistance into an unconstitutional
detention.
Even assuming that Johnson did improperly detain Plaintiff,
qualified immunity protects government officials “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). In deciding whether a government official
is entitled to qualified immunity, this court must determine
both whether (1) there was a violation of a person’s
constitutional right and (2) whether the right was “clearly
established,” such that a reasonable officer would know his
conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 202 (2001).
The doctrine of qualified immunity “gives government officials
breathing room to make reasonable but mistaken judgments,” and
“protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731,
743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
In Saucier, the Supreme Court required that courts first
analyze the threshold question of whether a constitutional right
had been violated before turning to the question of whether the
right was “clearly established.” Saucier, 533 U.S. at 201. Since
then, the Supreme Court has loosened the strict sequential
analysis of Saucier, allowing courts to exercise discretion in
which analysis to take up first. Pearson v. Callahan, 555 U.S.
223, 236 (2009). However, even as it receded from Saucier, the
Pearson Court recognized the benefits of first determining
whether a constitutional violation occurred before turning to
whether the right was clearly established, since it “often may
be difficult to decide whether a right is clearly established
without deciding precisely what the existing constitutional
right happens to be.” Pearson, 555 U.S. at 236 (internal
quotation marks omitted).
This court finds the allegations are insufficient to
establish that a constitutional violation occurred. Plaintiff
acknowledges that Johnson “requested [his] Drivers License to
retrieve necessary information.” (Am. Compl. (Doc. 16) at 10.)
Plaintiff offers no facts as to how long Johnson held his
driver’s license, what he was doing with the license, or facts
supporting the allegation that Johnson held the license for an
unconstitutionally long period of time. Plaintiff must plead
facts that fairly put Defendant on notice of the nature of the
claims and “contain more than labels and conclusions.”
Giarratano, 521 F.3d at 304 & n.5 (quoting Twombly, 550 U.S. at
555). Although Plaintiff claims, in a conclusory fashion, that
Johnson’s retention of the driver’s license was “no longer
needed making the seizure unnecessary,” Plaintiff offers no
facts to support this conclusion. Plaintiff fails to explain how
or why the interaction should have ended simply because he may
have desired such a result, nor does Plaintiff allege any
specific duration of time that might explain why the detention
was unconstitutional. This court finds Plaintiff has failed to
plausibly allege an unconstitutional detention as opposed to a
voluntary interaction. “[T]he law ordinarily permits police to
seek the voluntary cooperation of members of the public in the
investigation of a crime.” Illinois v. Lidster, 540 U.S. 419,
425 (2004). Because Plaintiff has failed to plausibly allege a
constitutional violation, qualified immunity applies as to any
detention of Plaintiff resulting from Johnson’s continued
possession of the driver’s license.
Even assuming Plaintiff plausibly alleges a detention, the
officer is still entitled to qualified immunity in the second
prong of analysis. In determining whether a right was “clearly
established,” the “contours of the right must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). The Fourth Amendment applies “whenever a police
officer accosts an individual and restrains his freedom to walk
away.” Terry v. Ohio, 392 U.S. 1, 16 (1968). The Fourth
Amendment prohibition against unreasonable seizures includes
“brief investigatory stops.” United States v. Kehoe, 893 F.3d
232, 237 (4th Cir. 2018), cert. denied, ____ U.S. ____, 139
S. Ct. 842 (2019). However, the facts alleged by Plaintiff do
not fit into the traditional reasonable suspicion analysis, as
the alleged interaction between Johnson and Plaintiff began when
Plaintiff “approached Defendant Cpl. S.K. Johnson” and “pleaded
for help”. (Am. Compl. (Doc. 16) at 10.) Plaintiff contends that
the resulting seizure, (id.) (“ordering me to move and remain in
one spot against my will, without a warrant or probable cause”),
was unconstitutional.
2. Qualified Immunity for Johnson’s Alleged
Detention of Plaintiff
Plaintiff’s claim of an unconstitutional detention, as
alleged, implicates the authority of law enforcement to detain
an individual complaining of criminal activity rather than one
suspected of criminal activity. (See e.g., Am. Compl. (Doc. 16)
at 7 (“with tears in my eyes I [d]esperately [p]leaded for help
as I was just assaulted and brutalized”).) Assuming Plaintiff’s
interaction with law enforcement did in fact move from a
voluntary act to a detention by Johnson, it was “less intrusive
than a traditional arrest.” Brown v. Texas, 443 U.S. 47, 50
(1979).
Consideration of the constitutionality of such
seizures involves a weighing of the gravity of the
public concerns served by the seizure, the degree to
which the seizure advances the public interest, and
the severity of the interference with individual
liberty.
Id. at 50-51 (internal citations omitted). Applying these
factors to determine the reasonableness of Johnson’s alleged
detention, this court finds Plaintiff’s allegations establish
the reasonableness of Johnson’s actions. See e.g., Lidster, 540
U.S. at 427. Plaintiff’s interaction with Johnson did not
involve an arbitrary invasion by an officer in the field;
Plaintiff sought intervention by law enforcement.
With respect to the first factor, the relevant public
concern was substantial. Plaintiff claimed to have been the
victim of a brutal assault in the Boiler Room. As to the second
factor, Johnson’s detention of Plaintiff advanced the public
interest. The detention permitted Johnson to investigate the
allegations by first identifying Plaintiff. (Am. Compl. (Doc.
16) at 10) (“Defendant requested [his] Drivers License to
retrieve necessary information.”).) As to the third factor,
accepting Plaintiff’s allegations as true that he was detained
and commanded to remain in a specified spot, Plaintiff fails to
plausibly allege Johnson’s actions amounted to anything other
than a minimal interference with his liberty.
This court therefore finds, first, that Plaintiff has
failed to plausibly allege he was involuntarily detained by
Johnson. Even assuming Johnson detained Defendant by retaining
his driver’s license and requiring Defendant to remain in a
particular spot, that detention has not been plausibly alleged
by Plaintiff to be unconstitutional. Second, even assuming that
an unconstitutional detention took place, this court finds there
is no clearly established right that would make it clear to a
law enforcement officer how long Johnson could detain Plaintiff
or retain his driver’s license while the investigation Plaintiff
requested was ongoing.
This court finds Johnson is entitled to qualified immunity,
and this claim as to Johnson will be dismissed.
E. Third Interaction with Law Enforcement
1. Unconstitutional Arrest
Defendants argue that Plaintiff’s unconstitutional arrest
claim is subject to dismissal. Plaintiff appears to allege that
an arrest occurred by Flowers “touching and handling
[Plaintiff’s] body while placing [him] under arrest, without
Valid warrant, or probable cause, or notifying [him] of Miranda
rights.”7 (Am. Compl. (Doc. 16) at 11.) Plaintiff alleges a false
warrant was issued, which claimed that Plaintiff remained on the
premises of the Boiler Room after being told not to by a person
in charge of the premises. (Id.)
7 This court agrees with Defendants that Plaintiff has not
stated a claim for failure to provide Miranda rights. (Doc. 23
at 22 (“When an allegedly coercive interrogation occurs but the
fruits of that interrogation are never admitted in court, there
is no Fifth Amendment violation, and therefore, no viable § 1983
claim. Burrell v. Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005)
(citing Chavez v. Martinez, 538 U.S. 760 (2003)).”).
Relying upon the actual warrants,8 (Doc. 12-1 at 2-3),
Defendants argue Plaintiff was in fact arrested for two
offenses. One of those offenses is the aforementioned trespass,
alleged by Plaintiff to have been false. A second offense was
also charged in the warrant, a violation of N.C. Gen. Stat.
14-444: appearing intoxicated in a public place and acting in a
disruptive manner (hereinafter referred to as “public
intoxication”). The second offense is not addressed by Plaintiff
in the Amended Complaint. (See Doc. 23 at 20-22; Doc. 12-1 at
2-3.)
This court finds, first, that it may consider the warrant
as filed by Defendants without converting the motion to dismiss
to a motion for summary judgment. A court dealing with a motion
to dismiss may only consider “public records, documents central
to plaintiff’s claim, and documents sufficiently referred to in
the complaint”; even with those types of materials, a court may
only consider them “so long as the authenticity of these
8 Defendants originally filed a copy of the warrants with
their original brief. (Doc. 12-1.) Though Defendants did not
file them again as exhibits, Defendants reference and discuss
the warrants in their subsequent brief with this court. (Doc. 23
at 4.) Plaintiffs have not raised any objection to the
authenticity or accuracy of the documents, and this court will
therefore utilize the warrants as originally filed in its
analysis.
documents is not disputed.” Stewart v. Johnson, 125 F. Supp. 3d
554, 558 (M.D.N.C. 2015) (quoting Witthohn v. Fed. Ins. Co., 164
F. App’x 395, 396 (4th Cir. 2006) (per curiam)); see also Gasner
v. Cnty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995)
(noting that the use of such materials has “but one limitation:
the document must be of unquestioned authenticity”). Plaintiff
does not question the authenticity of the warrant as submitted.
This court will therefore consider the warrant without
converting the motion to one for summary judgment.
Defendants contend that since Plaintiff has not challenged
or made any allegation of irregularity as to the public
intoxication offense specifically, (see generally Am. Compl.
(Doc. 16)), this court can find that offense sufficient to
require dismissal of Plaintiff’s unconstitutional arrest claim.
In response, Plaintiff argues that he “did state in 12 of claims
that the warrant sworn out by Defendant S.A. Alvarez was false,
which means Plaintiff is alleging that all charges held within
the Warrant where [sic] false which included Intoxication and
Disruptive in public and trespassing charges.” (Doc. 39 at 14-
15.)
This court disagrees with Plaintiff. After careful review,
this court finds Plaintiff has not alleged in the Amended
Complaint any facts which specifically address the public
intoxication offense. Because a plaintiff may not amend his
complaint through responsive briefing, Hurst, 681 F. App’x at
194, this court declines to find Plaintiff has alleged the
public intoxication offense was “false.” Nevertheless, for the
reasons explained hereafter, this court is constrained to find
the allegations of the Amended Complaint are sufficient to
require that Defendants’ motion be denied as to this issue.
While discovery and the presentation of evidence may prove
matters entirely different from Plaintiff’s allegations, the
face of the warrant and the dispute over the information that
contributed to it preclude dismissal at this stage.
The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. “An arrest is a
seizure of the person.” Wilson v. Kittoe, 337 F.3d 392, 398 (4th
Cir. 2003) (quoting Rogers v. Pendleton, 249 F.3d 279, 290 (4th
Cir. 2001)). “‘[T]he general rule [is] that Fourth Amendment
seizures are “reasonable” only if based on probable cause’ to
believe that the individual has committed a crime.” Bailey v.
United States, 568 U.S. 186, 192 (2013) (quoting Dunaway v. New
York, 442 U.S. 200, 213 (1979)). Warrantless arrests are
“reasonable under the Fourth Amendment where there is probable
cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
With respect to § 1983 claims based on arrests without
probable cause, “[w]here . . . an arrest is based on probable
cause, it cannot result in a constitutional violation. And in
the absence of a constitutional violation, qualified immunity
applies and the court need not address whether the
constitutional right in question was clearly established.”
Cranford v. Kluttz, 278 F. Supp. 3d 848, 873 (M.D.N.C. 2017)
(quoting Swick v. Wilde, No. 1:10-cv-303, 2012 WL 3780350, at *9
(M.D.N.C. Aug. 31, 2012)); see also Durham v. Horner, 690 F.3d
183, 190 (4th Cir. 2012) (finding probable cause for the arrest
and thus no “essential constitutional violation underlying 1983
claim”); Sowers v. City of Charlotte, No. 3:14-cv-523-RJC-DCK,
2015 WL 8491498, at *4 (W.D.N.C. Dec. 9, 2015) (“Because the
officers had probable cause, Plaintiff’s arrest was valid, and
there was no violation of his constitutional rights. There is
accordingly no basis for a finding of any liability on the part
of the defendant officers under federal or state law.”).
The critical inquiry is whether the facts establish
probable cause for the arrest. “Probable cause to justify an
arrest means facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed . . . an offense.” Cahaly
v. Larosa, 796 F.3d 399, 407 (4th Cir. 2015) (quoting Michigan
v. DeFillippo, 443 U.S. 31, 37 (1979) (internal quotation marks
omitted)). Probable cause requires an evaluation of the “facts
and circumstances within the officer’s knowledge” and permits
the drawing of reasonable inferences from those facts and
circumstances. United States v. Humphries, 372 F.3d 653, 657–58
(4th Cir. 2004).
Warrants for arrest must also be supported by probable
cause. U.S. Const. amend. IV. Of course, “obtaining an arrest
warrant does not provide per se evidence” that the warrant was
proper or that the officer was objectively reasonable in
believing it so. Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th
Cir. 1991).
A party challenging the veracity of a warrant
application must show that the officer(s) deliberately
or with a “reckless disregard for the truth” made
material false statements in the warrant application,
or omitted from that application “material facts with
the intent to make, or with reckless disregard of
whether they thereby made, the [application]
misleading.”
Humbert v. Mayor & City Council of Baltimore City, 866 F.3d 546,
556 (4th Cir. 2017) (quoting Franks v. Delaware, 438 U.S. 154,
171 (1978), and United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990)). A plaintiff may demonstrate reckless disregard by
submitting evidence of an “officer acting ‘with a high degree of
awareness of [a statement’s] probable falsity,’ meaning that
‘when viewing all the evidence, the affiant must have
entertained serious doubts as to the truth of his statements or
had obvious reasons to doubt the accuracy of the information he
reported.’” Id. (quoting Miller v. Prince George’s Cnty., 475
F.3d 621, 627 (4th Cir. 2007)). Nevertheless, “[r]easonable law
enforcement officers are not required to exhaust every
potentially exculpatory lead or resolve every doubt about a
suspect’s guilt before probable cause is established.” Wadkins
v. Arnold, 214 F.3d 535, 541 (4th Cir. 2000) (citation omitted).
Moreover, a plaintiff must demonstrate that the false
statement or omission is material, ‘that is, necessary to the
[neutral and disinterested magistrate’s] finding of probable
cause.’” Humbert, 866 F.3d at 556 (quoting Miller, 475 F.3d at
628). When determining whether the false statement is material,
this court is required to “excise the offending inaccuracies and
insert the facts recklessly omitted, and then determine whether
or not the corrected warrant affidavit would establish probable
cause.” Miller, 475 F.3d at 628 (internal quotations marks and
citation omitted).
In North Carolina, under N.C. Gen. Stat. § 15A-304(d), “[a]
judicial official may issue a warrant for arrest only when he is
supplied with sufficient information, supported by oath or
affirmation, to make an independent judgment that there is
probable cause to believe that a crime has been committed and
that the person to be arrested committed it.”
Defendants argue that because the arrest and detention of
Plaintiff was a single incident and at least one of the offenses
has not been alleged to lack probable cause, Plaintiff’s Fourth
Amendment claim must fail. (See Doc. 23 at 21.) This court
agrees with Defendants that the existence of probable cause as
to the public intoxication offense likely vitiates a claim of an
unconstitutional arrest for the reasons explained in Linn v.
Garcia, 531 F.2d 855, 862 (8th Cir. 1976), and Mills v. Hassan,
Civil Action No. GLR-18-562, 2019 WL 7049567 (D. Md. Dec. 23,
2019). (See Doc. 23 at 21.) However, as explained above, the
central issue is not whether Plaintiff was guilty or not guilty,
but whether probable cause existed. In conducting that analysis,
if, as here, a plaintiff alleges the inclusion of false
information as to probable cause, it is necessary to excise that
false information and determine whether the remaining
information is sufficient to establish probable cause. See
Miller, 475 F.3d at 627.
It is not clear upon what information the officers and the
Magistrate may have relied in determining probable cause for the
public intoxication offense from the face of the warrant. More
specifically, it is not clear from the warrant how any false
statements, as alleged in the Amended Complaint as to the
trespassing offense, might have affected the finding of probable
cause by the Magistrate as to the public intoxication offense.
Therefore, factual issues exist requiring that these issues be
resolved at summary judgment or trial rather than this stage of
the proceedings.
Plaintiff details the alleged falsity of the information
describing the trespassing offense. (Am. Compl. (Doc. 16) at
10.) The warrant itself does not explain the facts clearly
enough for this court to determine what facts constituted
probable cause as to which offense, in light of Plaintiff’s
allegations as to those false statements alleged.
N.C. Gen. Stat. § 14-444 makes it unlawful for any person
in a public place to be intoxicated and disruptive, with
disruptive specifically defined as “otherwise preventing or
interfering with access to or passage across a sidewalk . . .”
N.C. Gen. Stat. § 14-444(a)(2). “Intoxicated” is defined as “the
condition of a person whose mental or physical functioning is
presently substantially impaired as a result of the use of
alcohol.” N.C. Gen. Stat. § 14-443(2). “[M]ere public
intoxication standing alone [is] no longer to be considered
unlawful and further, that for there to be a chargeable offense,
the intoxicated person must be disruptive in one or more of the
ways described in G.S. 14-444(a), subsection (1) through (5).”
State v. Cooke, 49 N.C. App. 384, 390, 271 S.E.2d 561, 565
(1980).
Although the warrant makes clear that Plaintiff was
disruptive in that he “did interfere with passage across a
sidewalk,” it is not clear from the warrant what relationship,
if any, exists between the facts known to the officers and later
provided to the Magistrate as to the trespassing offense and the
public intoxication offense. It is not clear whether those facts
are separate and independent of each other. For example, it is
not clear whether the sidewalk upon which Plaintiff interfered
with passage was part of the Boiler Room property. Nor can the
court determine from the facts alleged and presented whether the
officers and the Magistrate relied upon Plaintiff’s conduct in
refusing to leave the Boiler Room in support of a finding of
probable cause to believe Plaintiff was intoxicated.
At this stage of the proceedings, this court is required to
accept the complaint’s factual allegations as true, Iqbal, 556
U.S. at 678, and “the complaint, including all reasonable
inferences therefrom, [is] liberally construed in the
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004) (citation omitted). Thus, although Plaintiff has not at
this stage specifically challenged the truth or accuracy of the
public intoxication offense by allegations in the Amended
Complaint, Plaintiff has alleged that certain facts contained in
the warrant and attributed to the officers were false. Because
Plaintiff has alleged the use of false statements in relation to
obtaining the warrant, the record at this stage is insufficient
to establish the facts supporting probable cause as to either
offense - as those facts which might support a finding of
probable cause by the officers and the Magistrate are not before
the court. As a result, this court cannot determine, as a matter
of law, whether probable cause existed for the public
intoxication offense that is entirely separate from the
allegedly false statements. See Miller, 475 F.3d at 627.
This court therefore finds that the motion to dismiss will
be denied as to Plaintiff’s claim of an unconstitutional arrest,
but only as to Alvarez and Flowers. Plaintiff alleges
specifically that Flowers touched and handled him “while placing
[Plaintiff] under arrest, without valid warrant or probable
cause.” (Am. Compl. (Doc. 16) at 11.) Plaintiff further alleges
Flowers “transferred custody . . . to Alvarez” and that Alvarez
“falsely swore and . . . alleg[ing] under oath” as to the
trespassing charge. (Id.) Plaintiff’s allegations as to the
remaining officers, including Johnson, are neither clear nor
supported by facts sufficient to plausibly allege their
participation in an unconstitutional arrest. Any claims as to
those officers as to an unconstitutional arrest will be
dismissed.
2. Bystander Liability
With respect to the alleged unconstitutional arrest, this
court has found Plaintiff has stated a claim as to Alvarez and
Flowers, the officers participating in the arrest itself.
As to the remaining Defendants, Plaintiff fails to allege facts
from which it may be plausibly inferred that other officers (1)
had specific knowledge of any other officers’ alleged
unconstitutional conduct and (2) could have had a reasonable
opportunity to prevent the same. See Everette v. White, No.
4:14-CV-34-FL, 2015 WL 847194, at *6 (E.D.N.C. Jan. 16, 2015).
As to this claim, Plaintiff has failed to allege facts which
establish a claim under a theory of bystander liability as to
Plaintiff’s arrest. The motion to dismiss will be granted as to
this theory.
F. Motion to Dismiss Amended Complaint Defendants
Defendants Lewis, Fleming, Harmon, Harrill, and Molson were
not named in the original complaint filed on September 10, 2019.
(Doc. 2.) Instead, these Defendants (hereinafter “Am. Compl.
Defendants”) were not named until the filing of the Amended
Complaint. (Am. Compl. (Doc. 16).) The Am. Compl. Defendants
contend that they did not have notice of the original complaint
and the allegations as to the Am. Compl. Defendants do not
relate back to the filing of the original Complaint. (See Doc.
38 at 5-9.)
The statute of limitations for claims brought pursuant to
§ 1983 in North Carolina is three years. Nat’l Advert. Co. v.
City of Raleigh, 947 F.2d 1158, 1161-62 (4th Cir. 1991).
Plaintiff’s claims arose on September 9 or 10, 2016; the statute
of limitations therefore ran on September 9 or 10, 2019.
Plaintiff filed his original complaint in this court on
September 10, 2019. (Doc. 2.) Plaintiff filed the Amended
Complaint in this court in December 2019, adding the additional
Am. Compl. Defendants. (Am. Compl. (Doc. 16).) Because December
2019 falls outside the applicable statute of limitations, this
court must determine whether the claims against the Am. Compl.
Defendants relates back to the filing of the original complaint
on September 10, 2019.
The actual date of the filing of the Amended Complaint in a
form sufficient to provide public notice is complex. When a
document is actually entered on the public record in CM/ECF, the
document is file-stamped, while a receipt is also generated as
to the filing. That receipt is accessible by clicking on the
silver dot next to the document number. The hand stamp on the
Amended Complaint reflects that Plaintiff delivered it to the
Clerk on December 9, 2019, around 4:00 p.m. or perhaps slightly
later. (See Am. Compl. (Doc. 16) at 1.) That date is the
official file date. However, the Clerk did not enter the Amended
Complaint on the public docket until 12/12/2019 at 1:04 p.m.
(See Receipt (Doc. 16).) Under these circumstances, although the
Amended Complaint is deemed filed on December 9, 2019, none of
the parties received actual notice of the Amended Complaint
until on or after December 12, 2019, more than 90 days from the
date of the original complaint. Plaintiff, in response to the
Am. Compl. Defendants’ motion, has not provided any evidence or
information to suggest he provided actual notice of the Amended
Complaint to anyone prior to December 12, 2019. (See Docs. 40,
43.) Service of the Am. Compl. Defendants was not effected until
January 13, 2020, and February 6, 2020. (Docs. 25-28, 30.)
Fed. R. Civ. P. 15 describes the circumstances under which
an amendment may relate back to the original pleading, in this
case the complaint:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment
to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable
statute of limitations allows relation back;
(B) the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out - or attempted to be set out - in
the original pleading; or
(C) the amendment changes the party or the
naming of the party against whom a claim is asserted,
if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons
and complaint, the party to be brought in by
amendment:
(i) received such notice of the action
that it will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the
action would have been brought against it, but for a
mistake concerning the proper party’s identity.9
Fed. R. Civ. P. 15(c)(1)(A)-(C). Rule 15(c) “mandates relation
back once the Rule’s requirements are satisfied; it does not
leave the decision whether to grant relation back to the
district court’s equitable discretion. See Rule 15(c)(1) (‘An
amendment . . . relates back . . . when’ the three listed
requirements are met (emphasis added)).” Krupski v. Costa
Crociere S. p. A., 560 U.S. 538, 553 (2010). The Fourth Circuit
9 This court has included Rule 15(c)(1)(C)(ii) to recite the
applicable rule in full, but there is no argument or basis to
conclude that Plaintiff made a mistake concerning the proper
party’s identity within the meaning of Rule 15(c)(1)(C)(ii). The
focus of this analysis is upon Rule 15(c)(1)(C)(i).
has confirmed that the language in Rule 15(c) allows the
addition of a party to a complaint as an appropriate “change”
under the Rule. Goodman v. Praxair, Inc., 494 F.3d 458, 469 (4th
Cir. 2007). The Fourth Circuit has explained Rule 15(c) as to
adding a defendant:
When an amendment seeks to add a defendant, the
focus turns to the notice to that individual or
entity. Specifically, as to Rule 15(c)(1)(C)(ii), the
Supreme Court has clarified, “The question . . . is
not whether [the amending party] knew or should have
known the identity of . . . the proper defendant, but
whether [the potential defendant] knew or should have
known that it would have been named as a defendant but
for an error.” Krupski v. Costa Crociere, 560 U.S.
538, 548, 130 S. Ct. 2485, 177 L.Ed.2d 48 (2010).
Wilkins v. Montgomery, 751 F.3d 214, 224 (4th Cir. 2014).
Am. Compl. Defendants contend that they did not receive
notice of this action within the time provided by Fed. R. Civ.
P. 15(c).
Rule 15(c) requires notice within the time provided by Fed.
R. Civ. P. 4(m). Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir.
2010) (“The ‘limitation period’ for purposes of analyzing
whether the newly added defendant received notice and should
have had knowledge of the action is the Federal Rule of Civil
Procedure 4(m) service period.”). The time provided by Rule 4(m)
is within 90 days after the complaint is filed, unless the court
extends the time for good cause. Fed. R. Civ. P. 4(m) (amended
from 120 days to 90 days in 2015). The time for serving the
complaint was not extended, nor has Plaintiff demonstrated or
argued good cause exists to extend the time for service. Because
the original complaint was filed on September 10, 2019, notice
to the Am. Compl. Defendants had to occur on or before
December 10, 2019. As noted above, the Amended Complaint was not
filed publicly or served until December 12, 2019, more than 90
days from the date of the filing of the original complaint.
Am. Compl. Defendants did not receive formal, actual notice
by way of service of process until January 13, 2020 and
February 6, 2020. (Docs. 25-28, 30.) On the record before this
court, the earliest possible date this court could conceivably
find the Am. Compl. Defendants might have received some type of
notice within the meaning of Rule 15 is December 12, 2019, the
date the Amended Complaint was publicly filed. Plaintiff has not
come forward with any evidence or information to suggest he
mailed or otherwise disclosed the Amended Complaint prior to or
after hand-delivery to the Clerk for filing. On the record
before this court, Plaintiff presents no facts to permit a
finding that “within the period provided by Rule 4(m) . . . the
party to be brought in by amendment received such notice of the
action” or “knew or should have known the action would have been
brought against it.” Fed. R. Civ. P. 15(c)(1)(C)(i) and (ii).
There is authority which permits a court to presume notice
within the prescribed time period “when the nature of the claim
is apparent in the initial pleading and the added defendant has
. . . a sufficient identity of interest with the original
defendant . . . .” Western Contracting Corp. v. Bechtel Corp.,
885 F.2d 1196, 1201 (4th Cir. 1989). Am. Compl. Defendants do
not share counsel with the original defendants. See Boatwright
v. Good, No. 1:02CV209-C, 2003 WL 22231194, at *2 (W.D.N.C.
Aug. 6, 2003). Am. Compl. Defendants are not alleged to be
supervisors or to somehow share in an administrative hierarchy
or identity of interest with the previously named defendants.
See Stokes v. Harris, No. 10CV935, 2013 WL 1212788, at *7
(M.D.N.C. Mar. 25, 2013).
On this record, the court concludes that the Am. Compl.
Defendants “‘received no notice of the action’ . . . within the
[90-day] period set forth in Rule 4(m) and were thus ‘prejudiced
in defending the claim on the merits.’” Wilkins, 751 F.3d at 226
(quoting Fed. R. Civ. P. 15(c)(1)(C)(i)).
This court has considered whether, on its own motion, it
should toll the 90-day service period to avoid penalizing
Plaintiff for delay caused by the Clerk in entering Plaintiff’s
Amended Complaint in CM/ECF, and thereby on the public record,
as any delay by the Clerk is beyond the control of a pro se
plaintiff. See e.g. Robinson, 602 F.3d at 608. For two reasons,
this court declines to take this action.
First, Plaintiff’s delay in acting to file the Amended
Complaint is not explained, nor is there any reason to find from
this record that a public filing of the Amended Complaint on
December 9, 2019 - or even an extension of the 90-day period to
December 12, 2019 - would provide a basis upon which to find
notice to Am. Compl. Defendants within the time provided by Rule
4(m). It does not appear the delay by the Clerk affected the
analysis in any fashion, and at best, Plaintiff’s delay in
waiting until the last day to file timely is the primary cause
of the absence of any timely notice to the Am. Compl.
Defendants.
Second, Plaintiff is proceeding pro se, and “the Fourth
Circuit takes the position that its district courts must be
especially solicitous of civil rights plaintiffs. This
solicitude for a civil rights plaintiff with counsel must be
heightened when a civil rights plaintiff appears pro se.”
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (citing
Canty v. City of Richmond, 383 F. Supp. 1396, 1399 (E.D. Va.
1974)). However, “[t]he ‘special judicial solicitude’ with which
a district court should view such pro se complaints does not
transform the court into an advocate. Only those questions which
are squarely presented to a court may properly be addressed.”
Weller v. Dep’t of Soc. Servs. for City of Baltimore, 901 F.2d
387, 391 (4th Cir. 1990). Plaintiff has failed to fairly present
any facts or questions with respect to the timeliness of his
Amended Complaint as to the Am. Compl. Defendants, and this
court will not speculate as to these matters. This court is not
an advocate for a pro se plaintiff or any other party.
IV. CONCLUSION
For the reasons explained herein,
IT IS HEREBY ORDERED that the Motion to Dismiss Plaintiff’s
Amended Complaint filed by Defendants S.A. Alvarez, J.M. Chavez,
K.R. Johnson, F.T. Wright, Wayne Scott, S.K. Flowers, and the
City of Greensboro, (Doc. 22), is GRANTED IN PART AND DENIED IN
PART. The motion is GRANTED as to Defendants Wayne Scott and the
City of Greensboro, and all claims as to those two Defendants
will be dismissed.
The motion to dismiss is DENIED as to the initial claim of
unconstitutional detention by Defendants S.A. Alvarez, J.M.
Chavez, K.R. Johnson, F.T. Wright, and S.K. Flowers. The motion
to dismiss is DENIED as to the bystander liability claim
regarding the initial detention.
The motion to dismiss is DENIED as to Plaintiff’s claim of
unlawful arrest at the Boiler Room as to Defendants Flowers and
Alvarez.
The motion to dismiss is GRANTED as to all remaining
claims, including conspiracy and bystander liability. The motion
to dismiss is GRANTED as to Plaintiff’s claim of
unconstitutional detention by Defendant K.R. Johnson.
Three claims remain for resolution at summary judgment or
trial. The first is a claim under 42 U.S.C. § 1983 based upon
allegations of unconstitutional detention by Defendants S.A.
Alvarez, J.M. Chavez, K.R. Johnson, F.T. Wright, and S.K.
Flowers. The second is the related claim as to bystander
liability. The third is the claim under 42 U.S.C. § 1983 based
upon allegations of an unconstitutional arrest by Defendants
S.A. Alvarez and S.K. Flowers.
IT IS FURTHER ORDERED that the Motion to Dismiss
Plaintiff’s Amended Complaint brought by Defendants D.C.
Fleming, D.M. Harmon, J.T. Harrill, A.G. Lewis, and M.J. Molson,
(Doc. 37), is GRANTED and that all claims as to these Defendants
are dismissed with prejudice.
IT IS FURTHER ORDERED that the court finds any claims
against a defendant identified as “S.K. Wright” are dismissed
without prejudice for failure to effect service of process as
required by Fed. R. Civ. P. 4(m).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension
of Time to Respond, (Doc. 44), is DENIED.
This the 2nd day of March, 2021.
LA; Wakes
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United States District Ju
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