# SCOTT v. THE CITY OF DURHAM

> District Court, M.D. North Carolina · August 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10253850

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253850

## How later opinions describe it (automated extraction)

- discussing well-established duty of a police officer to disclose exculpatory evidence to prosecutor making an independent assessment of probable cause
- holding punitive damages are not available against persons sued for § 1983 violations in their official capacities
- holding punitive damages are not available against persons sued for § 1983 violations in their official capacities
- holding municipal corporations are immune from punitive damages absent statutory exception

## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253850. Public record. Not legal advice.