Smith v. Pollino

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:19-CV-00639-KDB-DCK

CHRISTOPHER P. SMITH,

Plaintiff,

v. ORDER

JOSEPH POLLINO, ET AL, ,

Defendant.

It is often said that all politics is local. This case presents the question of whether local

politics, specifically an intensely local political dispute, is cause for a federal lawsuit. Plaintiff

Christopher Smith was a mayoral candidate in the November 2019 general election for the Village

of Marvin, North Carolina (the “Village” or “Marvin”). He alleges that Defendants – who are the

Village, the Village’s Mayor Joseph Pollino and other Marvin politicians – violated federal and

state law by their conduct in response to Smith’s decision to support a write in candidate for the

Village Council who the individual Defendants opposed.

If true, Smith’s allegations show that Pollino and the other individual Defendants acted

unprofessionally, profanely and perhaps in violation of state law. However, the critical threshold

issue before this Court on Defendants’ motions to dismiss the Amended Complaint, (Doc. Nos.

37, 39 and 41), is whether Smith has plausibly alleged a violation of 42 U.S.C. § 1983, the only

basis on which this Court could exercise subject matter jurisdiction over the parties’ dispute. After

considering these motions and the parties’ extensive written arguments, the Court finds that Smith

has not sufficiently pled a claim under Section 1983 and, accordingly, will GRANT the motions

to dismiss Plaintiff’s lone federal claim. Also, the Court will dismiss Smith’s supplemental state

claims without prejudice so that those claims may be refiled in state court if Smith chooses to do

so.1

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a

claim upon which relief can be granted” tests whether the complaint is legally and factually

sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th

Cir. 2010), aff'd, 566 U.S. 30 (2012). A court need not accept a complaint's “legal conclusions,

elements of a cause of action, and bare assertions devoid of further factual enhancement.” Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). The court,

however, “accepts all well-pled facts as true and construes these facts in the light most favorable

to the plaintiff in weighing the legal sufficiency of the complaint.” Id. Construing the facts in this

manner, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Id. Thus, a motion to dismiss under Rule 12(b)(6) determines

only whether a claim is stated; “it does not resolve contests surrounding the facts, the merits of a

claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.

1992).

A motion to dismiss based on Federal Rule of Civil Procedure 12(b)(1) addresses whether

the court has subject-matter jurisdiction to hear the dispute, see Fed. R. Civ. P. 12(b)(1), and

Plaintiff bears the burden of proving that subject matter jurisdiction exists. Evans v. B. F. Perkins

Co., 166 F.3d 642, 647 (4th Cir. 1999). “[F]ederal courts are courts of limited jurisdiction,

1 The Court expresses no opinion on the merits of Plaintiff’s state claims nor whether those claims

should be refiled in state court.

constrained to exercise only the authority conferred by Article III of the Constitution and

affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.

1998) (quotation omitted); see Gunn v. Minton, 568 U.S. 251, 256 (2013); Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). There is no presumption that a federal court has

subject-matter jurisdiction. See Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir.

1999).

Plaintiff alleges that the Court has subject matter jurisdiction based on Federal

question jurisdiction, 28 U.S.C. § 1331. Federal question jurisdiction arises only from “those cases

in which a well-pleaded complaint establishes either that federal law creates the cause of action or

that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of

federal law.” Franchise Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,

463 U.S. 1, 27–28 (1983). In this action, only one of Plaintiff’s claims purports to set forth a federal

question – the claim under 42 U.S.C. § 1983. If the Court finds that Plaintiff’s federal claim cannot

proceed then the court may decline to exercise supplemental jurisdiction over his remaining

state-law claims. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

n.7 (1988); ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 394 (4th Cir. 2012).

II. FACTS AND PROCEDURAL HISTORY

Plaintiff was a mayoral candidate in the Village’s November 2019 general election (the

“Election”). (Amended Complaint, Doc. No. 34, at ¶ 63). The Defendants are the Village;

Marvin’s mayor Pollino; Michael Lavelle and Jon Jones, members of the Village Planning Board;

and Robert Marcolese and Jamie Lein, who were the two successful Village Council candidates in

the Election.

Smith decided to run for mayor in late 2018 and met with Pollino to discuss his decision

and to solicit Pollino’s feedback. (Id. at ¶¶ 63, 65). In that meeting, Pollino told Smith that he

would not seek re-election. (Id. at ¶ 66). There were three positions with Village government on

the ballot in the Election: mayor, and two open seats on Village Council. (Id. at ¶ 64). For most

of the year leading to the November 2019 general election, Marcolese and Lein were the only

two candidates for the open Council seats and Smith met with them on several occasions. (Id. at

¶ 71).

Part of Smith’s discussions with Marcolese and Lein involved their complaints against

now former Village Councilmember Mary Shkut, who at that time was a controversial member

of the Village council. (Id. at ¶ 72). In May 2018, Shkut had been appointed, in a split vote, to

fill the seat and term of a departing Councilmember. (Id. at ¶¶ 25-28). The vote occurred during

the absence of another Councilmember who would have voted against her, which would have

led to denying her the appointment. (Id.) Shkut’s appointment under these circumstances led

Pollino and the members of the Council who opposed her to refuse to recognize her appointment

and pursue a lengthy effort to denounce the appointment in the Council and later to file litigation

to invalidate the appointment. (Id. at ¶¶ 32-58). Smith characterizes these legislative and legal

challenges to the validity of Shkut’s appointment as the Village’s “disapproval of Mary Shkut.”

(Id. at, e.g., ¶¶ 38, 47, 50).

Following his meetings with Marcolese and Lein, Smith decided to meet with Shkut.

(Id. at ¶ 82). Despite Marcolese and Lein’s negative view of Shkut and all the drama attendant

to her appointment, Smith came to believe that Shkut was an asset to the Village Council, and

Smith encouraged Shkut to consider a write-in campaign to retain her seat. (Id. at ¶ 84). In late

October 2019, Shkut registered a notice of candidacy with the Union County Board of Elections.

(Id. at ¶ 86). After Shkut entered the council race, Smith gave Shkut a letter of endorsement and

authorized Shkut to publish the letter to Shkut’s campaign website. (Id. at ¶ 87).

The political backlash against Smith from the Village politicians who opposed Shkut

was swift and passionate. The Sunday after Shkut published Smith’s endorsement (only two

days before the Tuesday election), Plaintiff received three phone calls. The first two calls were

from Kimberly Vandenberg, a Village Councilmember, and her husband Mike Vandenberg. (Id.

at ¶¶ 88-91). Both Vandenbergs, allegedly using foul and explicit language, criticized Smith’s

endorsement of Shkut and urged him to withdraw his support of her. (Id. at ¶¶ 88-91). Then,

Smith received a call from Pollino who demanded that Plaintiff rescind his support for Shkut

and said that if he didn’t do so then Pollino would conduct a write in campaign against Smith

for Mayor. (Id. at ¶¶ 94-95). Also, during the call, Pollino allegedly told Smith that he had

learned that, if Shkut were elected, several Village employees would quit their jobs; that his

decision to support Shkut put careers, livelihoods, and families at stake; and, finally, that if

Smith did not rescind his support for Shkut, Pollino would fabricate and disseminate a story to

residents in the Village that Smith had engaged in an extra-marital affair. (Id. at ¶¶ 96-99). Smith

alleges that he was shocked and intimidated by the call. (Id. at ¶ 101).

The next day, the Monday before the election, Smith began seeing signs encouraging

voters to vote for Pollino as a write-in candidate for mayor. (Id. at ¶ 104). Smith also received a

text message from Defendant Lavelle, with whom Smith served as volunteer members of the

Village Planning Board. (Id. at ¶ 106). In the text, Lavelle wrote that he “was extremely shocked

and disappointed that [Plaintiff] chose to endorse [Mary Shkut]” and asked if Plaintiff would be

at the Planning Board meeting so that they “could talk after.” Plaintiff replied that he would be

at the meeting and that “[he]’d like to catch up afterwards as well.” (Id.)

Smith alleges that Leavelle’s text was part of a “coordinated plan” to “confront” Smith.

(Id. at ¶ 114). After the planning meeting, Smith and Pollino, Lavelle, Lein, and Marcolese

walked outside to a parking lot. (Id. at ¶¶ 115-116). Smith alleges that the four men closely

surrounded and began screaming at him. (Id. at ¶¶ 117, 119-120). Lein shouted that Smith was

a liar, a “piece of shit,” and a man without morals. Marcolese shouted that Smith had betrayed

him and Lein. Pollino also shouted epithets at Smith. Smith alleges that at one point he attempted

to leave, but Lein stopped him, pointed his finger at him and began ranting frantically about

Lein’s recently deceased wife. Smith claims that this encounter left him extremely afraid. (Id. at

¶ 121). Lein and Marcolese ultimately walked away, but after Smith returned to his car Pollino

and Lavelle approached Smith to again tell him that he should withdraw his candidacy and

renounce his support for Shkut. (Id. at ¶¶ 122-25).

At 8:30 AM the next morning, election day, Smith drove to Marvin Elementary, a polling

location, to greet voters. (Id. at ¶ 136). When he arrived, he noticed Lein and Pollino in the

parking lot and allegedly became sick because of the events of the previous evening. (Id. at ¶

138). Smith then went home for a short time but came back to the polling site around 10:00 AM.

(Id. at ¶¶ 138-140). Upon Smith’s return, his run-ins with Defendants continued as he

campaigned on Election Day. Lavelle, at the polls to support Pollino, Lein, and Marcolese,

allegedly interfered with Smith as Smith attempted to greet voters, including by stepping

between Smith and voters as they approached. (Id. at ¶ 141). Plaintiff further claims that a

campaign handout that Smith created had been modified either by or at the urging of Defendants

to include a stapled-on flyer that bashed Shkut’s candidacy. (Id. at ¶¶ 142-45). Finally, Plaintiff

alleges that as he stood in the school parking waiting to greet voters, Defendant Jones, the Chair

of the Village Planning Board and a supporter of Pollino, Marcolese, and Lein, drove his truck

in Plaintiff’s direction at an inappropriate speed for a parking lot, allegedly forcing Plaintiff to

move for fear of being struck by the vehicle. (Id. at ¶ 148).

Smith lost the mayoral election to Pollino by 18 votes out of 1275 cast. (Id. at ¶ 154).

Soon after the Election, Smith filed this action asserting the following claims: (1) Under 42

U.S.C. § 1983 alleging violation of the First and Fourteenth Amendments against all Defendants

(Id. at ¶¶ 155-177); (2) North Carolina Constitutional claim alleging the violation of the right to

free speech against all Defendants (Id. at ¶¶ 178-182); (3) North Carolina Constitutional claim

alleging the violation of the right to free and open elections against all Defendants (Id. at ¶¶ 183-

191); (4) False imprisonment against all Defendants (Id. at ¶¶ 192-196); (5) Assault against

Defendant Jones (Id. at ¶¶ 197-200); and (6) Assault against Defendants Pollino, Lavelle,

Marcolese, Lein, and the Village (Id. at ¶¶ 201-205).

In response to the Complaint, Defendants filed motions to dismiss. Thereafter, Smith

filed his Amended Complaint, which in turn led to the Defendants’ motions to dismiss now

before the Court.

III. DISCUSSION

A. Plaintiff’s Claim under Section 1983

Plaintiff’s only claim under federal law is his First Claim for Relief, which alleges that

each of the Defendants violated 42 U.S.C. § 1983. As noted, if that claim fails then the Court does

not have original subject matter jurisdiction over any of Plaintiff’s supplemental state court claims.

Accordingly, the threshold question for the Court is whether Smith has adequately stated a claim

under Section 1983. That statute provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

42 U.S.C. §1983.

Thus, a case filed under 42 USC §1983 provides potential remedial relief for a plaintiff

who can prove that a person acting under color of state law deprived him of a right secured by

federal law, including violations of federal constitutional rights, as well as certain limited federal

statutory rights. See Maine v. Thiboutot, 448 U.S. 1 (1980); see also Gonzaga University v.

Doe, 536 U.S. 273, 283 (2002). Here, Plaintiff alleges that the Village; Pollino, Lavelle, and Jones

(in both their official and individual capacities) and Marcolese and Lein (as individuals) violated

Section 1983 by acting under color of an official policy or custom of the Village to deprive Smith

of his rights to political speech under the First Amendment to the U.S. Constitution, as

incorporated against the States through the Due Process Clause of the Fourteenth Amendment to

the U.S. Constitution.

1. Claims Against the Village and Pollino, Lavelle

and Jones in their “Official Capacity”

Turning first to Plaintiff’s claims against the Village and Pollino, Lavelle, and Jones in

their official capacities, a municipality is considered a “person” and thus is subject to suit. Monell

v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978); Hunter v. Town of Mocksville, N. Carolina,

897 F.3d 538 (4th Cir. 2018). However, “a municipality cannot be held liable solely because it

employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Monell, 436 U.S. at 691. Rather, “it is when execution of a

government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the injury that the government as an entity

is responsible under § 1983.” Id. at 694. Thus, an official capacity claim is a claim against the

governmental entity employing the official. Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006)

(internal citations omitted).

The consequence of the fact that “official capacity” claims against government officials

“are essentially the same as a claim against the entity,” is that courts often hold they “should be

dismissed as duplicative when the entity is also named as a defendant.” Love-Lane v. Martin, 355

F.3d 766, 783 (4th Cir. 2004); see also Armstrong v. City of Greensboro, 190 F. Supp. 3d 450, 463

(M.D.N.C. 2016) (“duplicative claims against an individual in his official capacity when the

government entity is also sued may be dismissed”). Therefore, because Smith has asserted what is

commonly referred to as a Monell claim directly against the Village, the Court will dismiss the

claims against Pollino, Lavelle, and Jones in their official capacity.

Under Monell, there are four theories that can be potentially pursued under Section 1983

to show an unlawful custom, policy, or practice:

(1) through an express policy, such as a written ordinance or regulation; (2) through

the decisions of a person with final policymaking authority; (3) through an

omission, such as a failure to properly train [employees], that “manifest[s]

deliberate indifference to the rights of citizens”; or (4) through a practice that is so

“persistent and widespread” as to constitute a “custom or usage with the force of

law.”

See Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218

(4th Cir.1999)). Beyond identifying a policy or practice that may be attributable to the

governmental unit, the plaintiff must also demonstrate that, through its deliberate conduct, the

municipality was the “moving force” behind the injury alleged. See Bd. of Cnty. Comm’rs of Bryan

Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original). In other words, a plaintiff

must show that the action was taken with the requisite degree of culpability and must demonstrate

a direct causal link between the action and the deprivation of federal rights. Id. Indeed, “[t]he first

inquiry in any case alleging municipal liability under §1983 is the question whether there is a direct

causal link between a municipal policy or custom and the alleged constitutional deprivation.” City

of Canton v. Harris, 489 U.S. 378, 385 (1989).

Thus, the Supreme Court has made clear that a Plaintiff seeking to impose Monell liability

bears a heavy burden: “Where a plaintiff claims that the municipality has not directly inflicted an

injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and

causation must be applied to ensure that the municipality is not held liable solely for the actions of

its employee.” Bd. of County Com’rs of Bryan County v. Brown, 520 U.S. 397, 405 (1997) (citation

omitted). The Fourth Circuit has similarly held that “[t]he substantive requirements for proof of

municipal liability are stringent.” Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

Plaintiff primarily pursues his claims against the Village under the first Monell theory;

specifically, he alleges that there was an “official policy and custom of the Village of Marvin to

disapprove of Mary Shkut and to take action to prevent Shkut and her supporters from participating

in Village government.” Doc. No. 34 at ¶ 153. However, while Plaintiff alleges that the Village

enacted an “official policy” under which his right to free speech was violated, the Amended

Complaint does not plead facts that establish such a policy and in particular a policy that made the

constitutional violations a “reasonable probability rather than a mere possibility.” See Spell v

McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987); Semple v City of Moundsville, 95 F.2d 708, 713

(4th Cir 1999).

While Plaintiff characterizes the Village’s “policy” as one of “disapproval” of Mary Shkut,

the actual facts alleged reveal instead that the Village’s “policy” was simply that Ms. Shkut’s

appointment to the Village Council was invalid. See Amended Complaint, Doc. No. 34, at ¶¶ 34-

35, 43, 45, 53, 58. To be sure, the Mayor and the councilmembers who supported this view may

have taken it because they did not like Ms. Shkut and/or her political positions, but the supposed

motivations of the legislators who vote for a particular statute or “policy” are not the policy itself.

Therefore, to the extent a “policy” even existed,2 it did not, taking the facts alleged as true, reflect

“disapproval” of Ms. Shkut, as characterized by Plaintiff. Further, even if the “policy” could

plausibly be inferred to reflect “disapproval” (which the Court finds it could not), the Village’s

alleged actions certainly do not establish any “policy or custom” to prevent Shkut’s supporters

from participating in Village government.3 Indeed, nothing in any of the alleged facts related to

the Village’s actions with respect to Ms. Shkut refers in any way to her supporters nor can such an

official policy be inferred from the Village’s actions.

In summary, the Court finds that the Amended Complaint does not make Plaintiff’s Section

1983 claim against the Village one that “has facial plausibility” because the plaintiff has not pled

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. As has been long established, there is no

respondeat superior liability under Section 1983. Therefore, in the absence of facts to support the

adoption of an actual Village policy preventing Ms. Shkut’s supporters like Smith from

2 Plaintiff’s description of the Village’s actions with respect to the validity of Ms. Shkut’s

appointment to the council as a “policy” would potentially make any state or local elected board’s

action against any elected official a “policy” of “disapproval” under Monell. This appears to be

well beyond what Monell contemplates. Under Monell, “[a]n official policy often refers to ‘formal

rules or understandings ...that are intended to, and do, establish fixed plans of action to be followed

under similar circumstances consistently and over time,’ and must be contrasted with ‘episodic

exercises of discretion in the operational details of government.’” Semple v. City of Moundsville,

195 F.3d 708, 712 (4th Cir. 1999).

3 Although the court must accept factual allegations in the complaint as true and consider the facts

in the light most favorable to the plaintiff in ruling on a motion to dismiss, a court “need not accept

as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Market

Incorporated v. J.V. Associates, LP, 213 F.3d 175, 180 (4th Cir. 2000).

participating in Village government,4 the allegations of the Amended Complaint simply do not

“move” the plaintiff’s claims under 42 U.S.C. § 1983 “from possible to plausible” with respect to

the Village. See Twombly, 550 U.S. at 570. Accordingly, Plaintiff’s Section 1983 claim against the

Village will be dismissed.

2. Claims Against the Defendants as Individuals

In addition to his claims against Pollino, Leavelle and Jones in their official capacity,

Plaintiff has asserted a Section 1983 claim against each of them as individuals. Also, Plaintiff

asserts an individual Section 1983 claim against Marcolese and Lein on the alleged grounds that

they were “acting in concert” and “coordinated” with the other individual Defendants to thwart

Plaintiff’s mayoral candidacy and otherwise abridge his political speech.

"Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-

law element of § 1983 excludes from its reach 'merely private conduct, no matter how

discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)

(quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)); see Rendell-Baker v. Kohn, 457 U.S. 830,

838 (1982) (holding that Section 1983's requirement that a defendant act under "color of law" is

treated as the equivalent to the "state action" requirement under the Fourteenth Amendment);

Haavistola v. Community Fire Co., 6 F.3d 211, 215 (4th Cir. 1993) (same).

4 This holding equally applies to Plaintiff’s conclusory, one sentence “alternative” allegation that

the Village’s actions were “perpetuated and coordinated” by an unidentified “final policymaker of

the Village.” See Amended Complaint, Doc. No. 34, at ¶ 176. Regardless of who “perpetuated”

the “policy,” the absence of factual support for the existence of a policy against Ms. Shkut’s

supporters dooms the Section 1983 claim against the Village. If there is no such policy, then this

alternative allegation simply reflects an improper effort to impose vicarious liability on the Village

for the actions of one of its officials. See Spell 824 F.2d at 1388.

The state action requirement "reflects judicial recognition of the fact that 'most rights

secured by the Constitution are protected only against infringement by governments.'" Lugar

v. Edmondson Oil Co., 457 U.S. 922, 936 (1982) (quoting Flagg Bros. Inc. v. Brooks, 436 U.S.

149, 156 (1978)). "This fundamental limitation on the scope of constitutional guarantees 'preserves

an area of individual freedom by limiting the reach of federal law' and 'avoids imposing on the

State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.'"

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991) (quoting Lugar, 457 U.S. at 936-

37); see also Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.

1998). Therefore, the first requirement to obtain relief under 42 U.S.C. § 1983 is that a Plaintiff

must show that a defendant acted under state authority in depriving him of a constitutional or

federal right. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Adickes v. S.H. Kress & Co.,

398 U.S. 144, 150 (1970).

In assessing whether “the conduct allegedly causing the deprivation of a federal right be

fairly attributable to the State,” courts examine the “totality of the circumstances,” Holly v. Scott,

434 F.3d 287, 292 (4th Cir. 2006) (internal citations omitted), to determine if the action at issue

“bore a ‘sufficiently close nexus’ with the State to be ‘fairly treated as that of the State itself.’”

Rossignol v. Voorhaar, 316 F.3d 516, 525 (4th Cir. 2003) (quoting Jackson v. Metro. Edison Co.,

419 U.S. 345, 351 (1974). Plaintiff claims that the moving Defendants were acting under color of

“a statute, ordinance, regulation, custom, or usage” because “[i]t was through and as a direct result

of said Defendants’ official powers and duties that they were able to coordinate and execute the

ambush of Plaintiff at Village Hall.” See Amended Complaint, Doc. No. 34, at ¶¶ 171-172.

However, as with the conclusory and factually unsupported allegation of a policy to prevent

supporters of Ms. Shkut from participating in Village government, the Amended Complaint fails

to provide factual support for how Defendants used their “official powers and duties” to deprive

Plaintiff of his rights.

Significantly, the Amended Complaint does not identify with any specificity the “official

powers and duties” the Defendants used against Smith. Smith alleges that Defendants harassed

him on the phone, confronted him in person in a parking lot, interfered with his campaigning at a

polling site and drove a car towards him. However wrongful (or not) those actions may be, none

of Defendants’ alleged improper conduct depended or relied on their official powers or duties in

any way. Rather, they simply used texts, a phone and a car to accomplish their alleged plan. Indeed,

it appears that any group of five people who opposed Smith’s candidacy, whether or not they were

politicians in Marvin, could have easily done the same thing. See Martinez v. Colon, 54 F.3d 980,

986 (1st Cir. 1995) (“[S]ection 1983 is ... implicated ... [when] the conduct is such that the actor

could not have behaved in that way but for the authority of his office.”); Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 343 (4th Cir. 2000) (holding that challenged conduct is

more likely to amount to state action when “the injury caused is aggravated in a unique way by the

incidents of governmental authority” (internal quotation marks omitted); see also Rossignol, 316

F.3d at 526 (only when a defendant’s “status” as a public official “enabled them to execute their

scheme in a manner that private citizens never could have,” then the action is more likely to be

treated as attributable to the state.)

As to Defendants Marcolese and Lein, the allegations tying them to any action “under color

of law” is even more attenuated. Individual capacity liability under Section 1983 is “personal,

based upon each defendant’s own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402

(4th Cir. 2001) (internal citation omitted). As the Supreme Court stated, “[b]ecause vicarious

liability is inapplicable to ... § 1983 suits, a plaintiff ... must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) (citation omitted). Therefore, in order to establish liability under

Section 1983, the plaintiff must affirmatively show that the individual defendants “acted

personally in the deprivation of the plaintiff’s rights.” Wright v. Collins, 766 F.2d 841, 850 (4th

Cir. 1985)(internal citations omitted); accord Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997)

(“liability will lie where it is affirmatively shown that the official charged acted personally in the

deprivation of the plaintiff’s rights.”); Garraghty v. Commonwealth of Virginia, Department of

Corrections, 52 F.3d 1274, 1280 (4th Cir. 1995).

Plaintiff’s allegations against Marcolese and Lein with respect to their liability under

Section 1983 begin and end with the summary allegations that they were part of a “coordinated”

effort and “acted in concert” with the other defendants. These conclusory and non-specific

allegations are insufficient to plausibly conclude that they have engaged in conduct that can be

analogized to “state action.” The Amended Complaint is silent as to their specific roles in any

unlawful “coordination” and, in any event, if the other Defendants did not “use their official

powers and duties” against Smith then Marcolese and Lein’s “coordination” with them is legally

no different than any group of five people getting together to pursue a shared political agenda.

Therefore, the Court finds that the Amended Complaint fails to plausibly allege facts sufficient to

support the requirement that Defendants acted “under color of law” under Section 1983 and will

dismiss Plaintiff’s Section 1983 claims against the individual Defendants as individuals. 5

5 The Court need not reach and does not decide Defendants’ other arguments in support of their

motion to dismiss Plaintiff’s Section 1983 claim. However, the Court notes that much of the

conduct alleged by Plaintiff implicates Defendants’ First Amendment rights to political speech as

well as Plaintiff’s. See Mills v. Alabama, 384 U.S. 214, 218 (1966) (there is “practically universal

agreement that a major purpose of the [First] Amendment [is] to protect the free discussion of

governmental affairs . . . includ[ing] discussion of candidates.”). While Plaintiff alleges that

B. Plaintiff’s State Law Claims

The real gravamen and substance of Plaintiff’s claims against the Defendants lies in his

claims under the North Carolina constitution and state tort claims for false imprisonment and

assault. However, with the dismissal of Plaintiff’s Section 1983 claim, which is his only federal

claim in this action grounded in federal question jurisdiction under 28 U.S.C. § 1331, the Court no

longer has a basis for supplemental subject matter jurisdiction over those claims. Therefore,

pursuant to 28 U.S.C. § 1367(c)(3), the Court will decline to exercise supplemental jurisdiction

over Plaintiff’s state law claims.

Defendants’ speech / conduct was ill-mannered (to put it charitably) and may in some respects

exceed the bounds of protected speech depending on the merit of Plaintiff’s state law claims,

Defendants had the same rights as Plaintiff to express their views on the candidates seeking office

in the Election and more specifically had the right to criticize Plaintiff for his support of Mary

Shkut and tell Plaintiff in clear terms why they decided to oppose his candidacy. See New York

Times Co. v. Sullivan, 376 US 254, 270 (1964) (debate on public issues should be “uninhibited,

robust, and wide-open” and “may well include vehement, caustic and sometimes unpleasantly

sharp attacks on government and public officials”).

IV. ORDER

NOW THEREFORE IT IS ORDERED THAT:

1. Defendants’ Motions to Dismiss (Doc. Nos. 37, 39, 41) are GRANTED with

prejudice as to Plaintiff's First Claim for Relief — 42 U.S.C. § 1983 and

GRANTED without prejudice as to all of the Plaintiff's remaining claims for

relief;

2. Defendants’ requests for attorneys’ fees pursuant to 42 U.S.C. § 1988 are denied in

the exercise of the Court’s discretion; and

3. The Clerk is directed to close this matter in accordance with this Order.

SO ORDERED ADJUDGED AND DECREED.

Signed: May 1, 2020

| Burts LD. a

Kenneth D. Bell Vy,

United States District Judge i f

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