SCOTT v. THE CITY OF DURHAM

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TONY SCOTT, JR. and TONY )

SCOTT, SR. (an individual parent )

and legal guardian of Tony Scott, Jr.), )

)

Plaintiffs, )

)

v. ) 1:20-CV-558

)

THE CITY OF DURHAM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge

Tony Scott Jr. and his father Tony Scott Sr. have sued the City of Durham, the

Durham Police Department, and Durham police officers Michael McGlasson and Cornell

Richards for injuries stemming from the search, use of force, and arrest of Mr. Scott Jr.

on January 23, 2019. All claims against the Police Department will be dismissed, as it is

not a legal entity subject to suit. The motions for judgment on the pleadings will be

granted as to all claims against Mr. McGlasson and Mr. Richards in their official

capacities, which are duplicative of the claims against the City of Durham, and granted as

to the § 1981 claim to extent it asserts a cause of action for violation of the plaintiffs’

rights to enter into and enforce contracts. The motions will otherwise be denied.

I. Standard

The same standard applies to a motion for judgment on the pleadings as to a

motion to dismiss for failure to state a claim. See, e.g., Burbach Broad. Co. of Del. v.

Elkins Radio Corp., 278 F.3d 401, 405–06 (4th Cir. 2002). The plaintiffs’ pleadings

“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The Court thus accepts the plaintiffs’ allegations as

true for purposes of resolving the pending motions.

For the most part, the Court will reference the plaintiffs’ claims by the count

numbers and titles used in the amended complaint, Doc. 20, and will address the issues in

the order presented in the defendants’ briefs. Docs. 30, 33.

II. Claims Against the Durham Police Department.

“[T]he capacity of a governmental body to be sued in federal court is governed by

the law of the state in which the federal court is located.” Fisher v. Winston-Salem Police

Dep’t, 28 F. Supp. 3d 526, 534 (M.D.N.C. 2014); see Fed. R. Civ. P. 17(b)(3). “Under

North Carolina law, a police department is not an independent legal entity with the

capacity to sue and be sued.” Townsend v. City of Fayetteville, No. 5:13-CV-195-FL,

2013 WL 2240996, at *1 (E.D.N.C. May 21, 2013); accord, e.g., Cates v. Sandoval, No.

1:20CV200, 2020 WL 5665537, at *7 (M.D.N.C. Sept. 23, 2020); see also Wright v.

Town of Zebulon, 202 N.C. App 540, 543, 688 S.E.2d 786, 789 (2010) (noting that “[i]n

North Carolina there is no statute authorizing suit against a police department.”).

It is well established that the Durham Police Department does not have the

capacity to be sued. The plaintiffs’ claims are appropriately brought against the legal

entity operating the police department, the City of Durham. See N.C. Gen. Stat. § 160A-

11 (2019). All claims against the Durham Police Department will be dismissed.

III. Claims Against the City of Durham and Officer McGlasson.

A. Count Six: Fourth Amendment Search and Seizure

The defendants contend this claim is duplicative of Count One. While there is

some overlap and both concern Fourth Amendment violations, the claims are not

completely duplicative. The motion as to this claim will be denied.

B. Count Ten: Negligent Infliction of Emotional Address

The defendants point out that the plaintiffs have also asserted an intentional

infliction of emotional distress claim, see Doc. 20 at 29 (Count Nine), and contend that

the NIED claim in Count Ten should be dismissed because the intentional conduct

alleged does not support a negligence claim. But the plaintiffs are allowed to plead

negligent conduct in the alternative to intentional conduct, and the facts alleged, putting

aside the repetitive and conclusory rhetorical flourishes, support a plausible inference of

negligence at this early stage. The motion for judgement on the pleadings for this claim

will be denied.

C. Official Capacity Claims Against the Officers

The City contends that to the extent the plaintiffs assert the same claims against

Mr. McGlasson and Mr. Richards in their official capacities as they assert against the

City of Durham, those claims should be dismissed as duplicative. The plaintiffs make no

substantive argument in opposition. Doc. 31 at 11.

The motion will be granted as to the official capacity claims against these officers.

The claims against those defendants in their individual capacities are not dismissed and

will proceed.

D. Count Four: Abuse of Process

The elements of an abuse of process claim under North Carolina law are “the

existence of an ulterior purpose” and, “an act in the use of the process not proper in the

regular prosecution of the proceeding.” Barnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d

223, 227–28 (1955). The defendants challenge the sufficiency of the allegations of the

second element, contending that the plaintiffs have not alleged any events occurring after

process was issued. But the plaintiffs have alleged a long unexplained passage of time

before dismissal of the charges despite video evidence of innocence, leading to a

plausible inference that the defendants took wrongful action to keep the charges active.

While Twombly and Iqbal do not allow a case to go forward with only conclusory

allegations and require that a complaint “plausibly suggest an entitlement to relief,”

Iqbal, 556 U.S. at 681, those cases do not say a plaintiff must prove every element of a

cause of action in their pleading. See FDIC v. Baldini, 983 F. Supp. 2d 772, 785 (S.D.W.

Va. 2013). Indeed, Twombly explicitly states that a complaint “does not need detailed

factual allegations.” 550 U.S. at 555. The “plausibility” standard of Iqbal/Twombly is

thus less demanding than the standard that the plaintiffs will face at summary judgment

and trial, and it is not generally necessary to allege facts sufficient to prove each element

of a claim if the overall claim is plausible. See, e.g., Miller v. 3M Co., No. 5:12-CV-

00620-BR, 2013 WL 1338694, at *2 (E.D.N.C. Apr. 1, 2013) (“a plaintiff is not required

to prove his case in the complaint”); see also Robertson v. Sea Pines Real Est., 679 F.3d

278, 291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or

forecast evidence sufficient to prove an element of the claim.”) (cleaned up).

This is especially true where the facts are not all within the plaintiffs’ knowledge,

as here. Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010) (“[A] plaintiff's

pleading burden should be commensurate with the amount of information available to

them.”). Courts do not expect, nor does Federal Rule of Civil Procedure 8 require,

plaintiffs to plead information they could not access without discovery. Runnion ex rel.

Runnion v. Girl Scouts of Greater Chicago & Nw. Ind. 786 F.3d 510, 529 (7th Cir. 2015);

see also Twombly, 550 U.S. at 556 (noting that asking for plausible grounds “does not

impose a probability requirement at the pleading stage” and simply calls for enough facts

to raise a reasonable expectation that discovery will reveal the necessary evidence);

Vaughn v. Transdev Servs., Inc., 179 F. Supp. 3d 559, 564 (E.D.N.C. 2016)

The motion for judgment on the pleadings as to this claim will be denied.

E. Count Three: § 1981

The plaintiffs appear to assert two bases for liability under § 1981: interference

with the right to make a contract, see Doc. 20 at ¶ 103, and discriminatory treatment

based on Mr. Scott Jr.’s race. Id. 20 at ¶¶ 104, 107. The plaintiffs make no argument in

response to the City’s motion for judgment on the pleadings for the § 1981 claim to the

extent it is based on contract rights. See Doc. 30 at 13 (City’s argument); Doc. 31 at 12–

15 (plaintiffs’ argument). They do respond to Mr. Richards’s similar argument, Doc. 33

at 20–22 (Richards’s argument); Doc. 37 at 14–17 (plaintiffs’ response), but their

position makes no sense.

To the extent Claim Three asserts a § 1981 cause of action for violation of the

plaintiffs’ rights to enter into and enforce contracts, the claim will be dismissed.

But the allegations are sufficient to state a claim for race-based disparate treatment

against the defendants, and this aspect of the § 1981 claim may go forward. The

arguments about but-for causation are better evaluated on a developed factual record.

F. Claim 12: Punitive Damages

The City and Mr. McGlasson assert that the City and the officers in their official

capacities are immune from federal and state claims seeking punitive damages. Doc. 30

at 15–16. The plaintiffs offer no substantive argument in opposition. Doc. 31 at 15–16.

The cases support the defendants’ contention. See, e.g., City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271, (1981) (holding that municipalities are “immune from

punitive damages under 42 U.S.C. § 1983”); Harrison v. Chalmers, 551 F. Supp. 2d 432,

437 (M.D.N.C. 2008) (holding punitive damages are not available against persons sued

for § 1983 violations in their official capacities); Jackson v. Hous. Auth. of City of High

Point, 316 N.C. 259, 262, 341 S.E.2d 523, 525 (1986) (holding municipal corporations

are immune from punitive damages absent statutory exception).

To the extent the plaintiffs seek punitive damages from the City or from Mr.

McGlasson and Mr. Richards in their official capacities, those claims will be dismissed.

The plaintiffs’ claims for punitive damages against Mr. McGlasson and Mr. Richards in

their individual capacities will proceed.

G. Count Five: Monell Liability of the City of Durham

The City contends that all the federal claims against it must be dismissed for

insufficient allegations of an official custom or policy. Doc. 30 at 16–24. “[A] local

government may not be sued under § 1983 for an injury inflicted solely by its employees

or agents. Instead, it is when execution of a government’s policy or custom . . . inflicts

the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978).

To the extent the plaintiffs are asserting a failure by the City to train and supervise

their employees and agents, the Court agrees that the complaint is insufficient. All the

allegations are conclusory and do not assert any specific facts. Nor do the facts alleged

give rise to a plausible inference of such failures. As the City accurately says, the

complaint must demonstrate “more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. Threadbare assertions are not enough. To the

extent the plaintiffs assert § 1981 or § 1983 claims against the City based on a failure to

train or supervise police officers, those claims will be dismissed.1

But the plaintiffs’ other allegations about a policy or custom are supported by a

basic level of factual allegations, and as mentioned earlier, the plaintiffs need not prove

their case in the complaint. While perhaps a close question as to some of the alleged

policies or customs, Doc. 20 at ¶¶ 132–133, 135, the defendants’ arguments, which are

not specifically directed to the remaining categories of policies and violations identified

by the plaintiffs, are better addressed in the context of a developed factual record. If and

when summary judgment motions are filed or the case is tried, the plaintiffs’ evidence—

1 In a suit brought against a state actor, § 1983 is the exclusive federal remedy for a violation

of the rights guaranteed in § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989).

Just as with a § 1983 claim, there is no respondeat superior liability for § 1981 violations. Id.

and legal argument—will need to be more specific as to the custom or policy underlying

each alleged constitutional violation.

IV. Claims Against Officer Richards

A. Wrongful Arrest

Mr. Richards contends that the plaintiffs have not alleged facts giving rise to a

plausible claim that his actions violated Mr. Scott Jr.’s Fourth Amendment rights. The

motion will be denied, as the amended complaint and the answers provide the basic level

of factual allegations required to support this claim.

The plaintiffs have alleged that Mr. Richards spoke only with Mr. McGlasson

before seeking the arrest warrant, and that he did not speak with other witnesses. Doc. 20

at ¶ 38. While the plaintiffs alleged that Mr. Richards did not look at the store video

before seeking the arrest warrant, Mr. Richards and the other defendants say in their

answer that he did look at the video, see Doc. 21 at ¶ 39 (denying allegation at Doc. 20 at

¶ 39, that Mr. Richards did not view the video), and the plaintiffs have alleged that the

video affirmatively shows that Mr. McGlasson assaulted Mr. Scott Jr., not the other way

around. Doc. 20 at ¶ 37.

There are, as Mr. Richards points out, a several facts alleged that do not support

the plaintiffs’ claim against him. But a review of the cases addressing these failure-to-

investigate claims shows that they are typically evaluated at summary judgment or at

trial, when the factual record is more fully developed, not based on the complaint and the

answer. See, e.g., Savage v. Cnty. of Stafford, Va., 754 F. Supp. 2d 809 (E.D. Va. 2010),

aff’d sub nom. Savage v. Sturdivant, 488 F. App’x 766 (4th Cir. 2012); Torchinsky v.

Siwinski, 942 F.2d 257 (4th Cir. 1991); Wadkins v. Arnold, 214 F.3d 535 (4th Cir. 2000);

Clipper v. Takoma Park, Md., 876 F.2d 17 (4th Cir. 1989).

There are some facts alleged and admitted that support the plaintiffs’ Fourth

Amendment wrongful arrest claim against Mr. Richards, and the defendants’ arguments

are better evaluated on a more complete factual record. The motion will be denied.

B. Public Official Immunity

Mr. Richards contends that the state law claims against him should be dismissed

based on public official immunity. Doc. 33 at 13. But as he acknowledges, case law

indicates that malice can be inferred from a lack of probable cause, see White v. City of

Greensboro, 408 F. Supp. 3d 677, 705 (M.D.N.C. 2019), and if he watched a video that

showed Mr. Scott Jr. did not assault Mr. McGlasson but nonetheless thereafter obtained a

warrant by presenting to the Magistrate Judge only Mr. McGlasson’s patently false

assertions, malice might be a fair inference, nothing else appearing.

The motion will be denied without prejudice to a summary judgment motion.

C. Qualified Immunity

Mr. Richards contends that he is entitled to qualified immunity because it was not

clearly established at the time that reliance on information from another police officer

without further investigation was inappropriate. Doc. 33 at 19. But there are other

alleged facts and admissions in the answer, and this one fact is not viewed in a vacuum.

Mr. Richards says in his answer that he watched the video of events in the store before he

sought the warrant, and the plaintiffs allege that the video clearly shows that Mr.

McGlasson assaulted the minor plaintiff without justification.

At this point, the Court must assume the truth of the facts alleged by the plaintiffs,

and it has long been established that police officers cannot deliberately or recklessly

include false material statements or exclude materials facts in an application for a warrant

with the intent to mislead the magistrate. See, e.g., Franks v. Delaware, 438 U.S. 154,

165 (1978) (search warrant); Miller v. Prince George’s Cnty., Md., 475 F.3d 621, 627

(4th Cir. 2007) (arrest warrant); Rhodes v. Smithers, 939 F. Supp. 1256, 1273–74 (S.D.W.

Va. 1995) (discussing well-established duty of a police officer to disclose exculpatory

evidence to prosecutor making an independent assessment of probable cause), aff’d, 91

F.3d 132 (4th Cir. 1996). A video that conclusively shows the opposite of the account

given by a person claiming to be a victim is obviously material. See generally Savage,

754 F. Supp. 2d at 815–16.

The motion will be denied without prejudice to a summary judgment motion.

D. Count Three: § 1981

For reasons previously discussed, supra at § III.E., the § 1981 claim against Mr.

Richards will be dismissed to the extent it is based on a violation of the plaintiffs’ rights

to enter into and enforce contracts and will otherwise be denied.

E. Claim 12: Punitive Damages

Mr. Richards points out that punitive damages are not a cause of action and asks

that Claim 12, which is directed towards punitive damages, be dismissed. The claims

against Mr. Richards and Mr. McGlasson in their official capacity are otherwise being

dismissed, see supra at 3; this includes the claim for punitive damages. See supra at 6.

Otherwise, dismissal is unnecessary. While Mr. Richards is correct that a claim

for punitive damages is not a cause of action, it is a demand that must be alleged, and

dismissal might inaccurately indicate that the plaintiffs cannot seek punitive damages

against Mr. Richards in his individual capacity. The plaintiffs’ request for punitive

damages will proceed against Mr. Richards in his individual capacity and the motion is

denied to this extent.

It is ORDERED that the motions for judgment on the pleadings, Docs. 29 and 32,

are GRANTED inpart and DENIED inpart, as follows:

1. All claims against defendants Michael McGlasson and Cornell Richards in their

official capacities only are DISMISSED as duplicative of the claims against the

City of Durham;

2. All claims against the Durham Police Department are DISMISSED.

3. Claim Three is DISMISSED to the extent it asserts a § 1981 cause of action for

violation of the plaintiffs’ rights to enter into and enforce contracts, but to the

extent Claim Three asserts a § 1981 cause of action for race-based disparate

treatment that claim will proceed.

4. The motion is otherwise DENIED.

This the 27th day of August, 2021.

UNITED STATES DISTRICE JUDGE

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