Thomas v. Elis

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00354-MR

PHILLIP EUGENE THOMAS, )

)

Plaintiff, )

)

vs. )

)

FNU ELIS, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the Complaint

[Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 5].

I. BACKGROUND

The pro se Plaintiff filed this civil rights suit pursuant to 42 U.S.C. §

1983 addressing the circumstances of his arrest in Cleveland County on

August 21, 2021, when a police dog bit him.1 He names as Defendants:

1 The Plaintiff’s address of record with the Court is at the Albemarle Correctional

Institution. However, the North Carolina Department of Adult Correction’s website

indicates that the Plaintiff is presently located at the Carteret Correctional Center. See

https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=147535

6&searchLastName=thomas&searchFirstName=phillip&searchMiddleName=e&searchD

OBRange=0&listurl=pagelistoffendersearchresults&listpage=1 (last accessed March 13,

2024); Fed. R. Evid. 201. The Plaintiff is reminded that it is his responsibility to keep the

Court apprised of his present address at all times, and that the failure to do so may result

in the dismissal of this action for lack of prosecution. [See Dec. 18, 2023 Order of

Instructions].

Sergeant Elis and “County Sheriff Offices.” [Doc. 1 at 1]. The Plaintiff asserts

claims for “4th Amendment (excessive force),” “14th Amendment due

process and equal protection of the law,” and “municipal liability.” [Id. at 6,

10]. For injury, he claims:

Deep punctured wounds from k-9 dog bites requiring treatment

at Atrium healthcare in Cleveland County. I got stitches to closed

the wounds, three shots to prevent any future suspected rabies,

however extended treatment continued after I was discharge at

the Cleveland County Jail for infection the detected days.

Eventual the infection was gone and my stitches got removed by

the County medical staff.

[Id.] (errors uncorrected). He seeks: “Declarative Relief, Punitive Damages,

Compensatory Damages, medical fees, Attorney fees, Damages for pain

and suffer, mental anguish, Emotional distress in the amount of $1.5 million.”

[Id. at 8] (errors uncorrected).

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Complaint to determine whether it is subject to dismissal on the

grounds that it is “(i) frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see 28 U.S.C. §

1915A (requiring frivolity review for prisoners’ civil actions seeking redress

from governmental entities, officers, or employees).

In its frivolity review, a court must determine whether the Complaint

raises an indisputably meritless legal theory or is founded upon clearly

baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his complaint which set

forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.

Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

To state a claim under § 1983, a plaintiff must allege that he was

deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed by a “person” acting under

color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166 (2023).

A. Parties

The Complaint refers to several individuals who are not named as

defendants in the caption as required by the Federal Rules of Civil

Procedure. [See, e.g., Doc. 1 at 4 (referring to attorney Greg Smith, the

Superior Court Judge, the District Attorney, an employee of the Clerk of

Superior Court, Plaintiff’s girlfriend, etc.); see Fed. R. Civ. P. 10(a) (“The title

of the complaint must name all the parties”); Myles v. United States, 416 F.3d

551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him

in the caption and arrange for service of process.”); Perez v. Humphries, No.

3:18-cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A

plaintiff’s failure to name a defendant in the caption of a Complaint renders

any action against the purported defendant a legal nullity”). The allegations

directed at individuals not named as defendants are dismissed without

prejudice.

B. Due Process and Equal Protection

The Plaintiff asserts claims for “14th Amendment due process and

equal protection of the law.” [Doc. 1 at 6 (referring to “attached page 2”), 10

(page “D-2” addressing only excessive force and municipal liability)].

However, these claims are not supported by factual allegations. These

claims are so vague and conclusory that they fail to satisfy the most basic

pleading requirements. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and

plain statement of the claim showing that the pleader is entitled to relief”);

Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations,

unsupported by specific allegations of material fact are not sufficient);

Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader

must allege facts, directly or indirectly, that support each element of the

claim). Accordingly, the Plaintiff’s claims for due process and equal

protection violations are dismissed without prejudice.

C. Excessive Force

“The Fourth Amendment’s bar on unreasonable seizures prohibits the

use of excessive force by a police officer in effectuating an arrest.” Harris v.

Pittman, 927 F.3d 266, 272 (4th Cir. 2019). Whether an officer has used

excessive force is analyzed under an objective reasonableness standard.

See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). The

factors governing this analysis are: “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers

or others, and whether [the suspect] is actively resisting arrest or attempting

to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).

The Plaintiff alleges that Defendant Elis improperly deployed a police

dog without a verbal warning and commanded the dog to bite Plaintiff

repeatedly when the Plaintiff was unarmed, not running, and not resisting.

[Doc. 1 at 5, 10]. Construing the allegations liberally and drawing all

reasonable inferences in the Plaintiff’s favor, the excessive force claim

against Defendant Elis will be allowed to proceed in that it is not clearly

frivolous.

D. Municipal Liability

Local governing bodies “can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where ... the action that is alleged

to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body's

officers.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978); see Mt.

Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (Eleventh

Amendment immunity “does not extend to counties or similar municipal

corporations.”). Municipal liability under § 1983 cannot be predicated upon

a respondeat superior theory. Burgess v. Goldstein, 997 F.3d 541, 562 (4th

Cir. 2021). Liability arises only when the offensive acts are taken in

furtherance of municipal policy or custom. Id.; see City of Canton, Ohio v.

Harris, 489 U.S. 378, 389 (1989) (a municipality can be liable under § 1983

only where its policies are the “moving force” behind the constitutional

violation) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)).

There are three necessary elements for Monell liability. First, the

plaintiff must plausibly allege a constitutional harm that stems from the acts

of a municipal employee “taken in furtherance of some municipal ‘policy or

custom.’ ” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir. 1984)

(quoting Monell, 436 U.S. at 694); see also Spell v. McDaniel, 824 F.2d

1380, 1389 (4th Cir. 1987). A policy, custom or practice can exist in four

ways: (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.” Lytle v. Doyle, 326 F.3d

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

Cir. 1999)). Second, the plaintiff must allege facts showing that the policy’s

creation is fairly attributable to the municipality. Spell, 824 F.2d at 1389; see

also Owens v. Balt. City State’s Attorney’s Office, 767 F.3d 379, 402 (4th Cir.

2014) (“Only if a municipality subscribes to a custom, policy, or practice can

it be said to have committed an independent act, the sine qua

non of Monell liability.”). Third, the plaintiff must allege an affirmative causal

link between the “policy or custom,” and the particular injury suffered by the

plaintiff. Spell, 824 F.2d at 1389.

A plaintiff can establish the requisite “policy” for Monell liability through

a failure to train, if it “reflects a ‘deliberate’ or ‘conscious’ choice” to not do

so. City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197

(1989). Training policy deficiencies can include (1) “express authorizations

of unconstitutional conduct,” (2) “tacit authorizations” of such unconstitutional

conduct, and (3) failures to adequately “prohibit or discourage readily

foreseeable conduct in light of known exigencies of police duty.” Spell v.

McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987). No matter which theory is

alleged, the plaintiff must point out “a specific deficiency” in training, “rather

than general laxness or ineffectiveness in training.” Id.; see also,

e.g., McDowell v. Grimes, No. GLR-17-3200, 2018 WL 3756727, at *4 (D.

Md. Aug. 7, 2018). Second, a plaintiff must establish that the

municipality’s failure to train showed a “deliberate indifference to the rights

of persons with whom the [untrained employees] come into

contact.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (alteration in

original). Deliberate indifference is shown if “the need for more or

different training is so obvious, and the inadequacy [in training is] so likely to

result in the violation of constitutional rights.” Harris, 489 U.S. at 390, 109

S.Ct. 1197; accord Jordan by Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir.

1994). Finally, the plaintiff must show that “the officer’s conduct resulted from

said training,” or lack thereof. McDowell, 2018 WL 3756727, at *4

(quoting Jones v. Chapman, No. ELH-14-2627, 2015 WL 4509871, at *18

(D. Md. July 24, 2015)).

The Plaintiff alleges that:

Defendant County of Cleveland2 owed a duty to Plaintiff, to

ensure that the Cleveland County Sheriff’s Department, its

agents, employees, and its K-9 unit would perform their duties in

such a way as to avoid subjecting Plaintiff to physical injury by

way of unreasonable excessive force where defendant County of

Cleveland failed to properly hire, train, instruct, supervise,

investigate and discipline sheriffs of Cleveland County Sheriff’s

department with deliberate indifference to Plaintiff’s

constitutional rights under the 4th and 14th amendments to the

U.S. constitution, and was the moving force and/or proximate

cause of the deprivation of Plaintiff’s clearly established and well-

settled constitutional right of a verbal warning before seizure by

a police dog that lacked training to unlatch and stop chewing well

after Plaintiff was subdued causing serious nerve injury….

[Doc. 1 at 10].

The Plaintiff’s vague and conclusory claims fail to plausibly allege that

any constitutional violations resulted from a municipal policy or custom. His

bare references to policy and custom, and to a failure to train and supervise,

are insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). The Plaintiff instead appears to rely

2 The Plaintiff has not named Cleveland County as a defendant in this case, naming

instead as a Defendant “County Sheriff Offices.” [See Doc. 1 at 1]. This deficiency is

irrelevant, however, because the Plaintiff has failed to state a plausible municipal liability

claim in any event.

on a respondeat superior theory, which does not support Monell liability. The

Plaintiff’s municipal liability claims are, therefore, dismissed.

E. Intentional Infliction of Emotional Distress

Construing the Complaint liberally, it appears that the Plaintiff may be

attempting to assert a claim against Defendant Elis for the intentional

infliction of emotional distress under North Carolina law. [See Doc. 1 at 10].

The elements of intentional infliction of emotional distress are: “(1)

extreme and outrageous conduct, (2) which is intended to cause and does

cause (3) severe emotional distress.” Dickens v. Puryear, 302 N.C. 437,

452, 276 S.E.2d 325, 335 (1981) (citations and quotation marks omitted).

The severe emotional distress required for intentional infliction of emotional

distress is “any emotional or mental disorder, such as for example, neurosis,

psychosis, chronic depression, phobia, or any other type of severe or

disabling emotional or mental condition which may be generally recognized

and diagnosed by professionals trained to do so.” Piro v. McKeever, 245

N.C. App. 412, 416, 782 S.E.2d 367, 371 (2016), aff’d 369 N.C. 291, 794

S.E.2d 501 (citations omitted). Conduct is “extreme and outrageous” when

it “exceeds all bounds usually tolerated by a decent society.” Shreve v. Duke

Power Co., 85 N.C. App. 253, 257, 354 S.E.2d 357, 359 (1987) (citation and

quotations omitted).

While Plaintiff alleges in a conclusory manner that he suffered “mental

anguish” and “emotional distress,” he has not alleged that Defendant Elis

intentionally caused him a severe or disabling emotional or mental condition

as required under North Carolina law. [Doc. 1 at 8]. Therefore, to the extent

that the Plaintiff attempted to assert a claim for the intentional infliction of

emotional distress, it is dismissed.

IV. CONCLUSION

For the reasons stated herein, the Plaintiff’s excessive force claim has

passed initial review against Defendant Elis. The remaining claims are

dismissed without prejudice.

IT IS, THEREFORE, ORDERED that:

1. The Complaint has passed initial review against Defendant Elis

for the use of excessive force.

2. The remaining claims are DISMISSED WITHOUT PREJUDICE.

3. The Clerk is respectfully instructed to mail a blank summons form

to the Plaintiff, which the Plaintiff shall fill out and return for

service of process on Defendant Elis. Once the Court receives

the completed summons from Plaintiff, the Clerk shall direct the

U.S. Marshal to effectuate service upon the Defendant.

The Clerk is respectfully instructed to mail a copy of this Order and a

blank summons form to the Plaintiff at his address of record as well as to:

Phillip Eugene Thomas, 1475356, Carteret CC, PO Box 247, Phoenix, MD

21131.

IT IS SO ORDERED.

Signed: March 18, 2024

a

< Reidinger Ls,

Chief United States District Judge “*’Y

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