MIDGETT v. COOPER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GEORGE W. MIDGETT and SUSIE )

MIDGETT, )

)

Plaintiffs, )

)

v. ) 1:20-cv-00941

)

GOVERNOR ROY ASBERRY COOPER )

III, in his individual )

capacity, et. al., )

)

Defendants. )

MEMORANDUM ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This lawsuit, one of eight related cases,1 arises out of the

murder of four North Carolina prison employees at the hands of

four inmates during a failed attempt to escape the Pasquotank

Correctional Institution ("PCI") in October 2017. Plaintiffs

George and Susie Midgett2 are “close family members” who claim

eighty-five violations of their Fourteenth Amendment substantive

due process rights under 42 U.S.C. § 1983 by thirty-six named

Defendants across two agencies and the State’s executive branch,

including North Carolina Governor Roy A. Cooper, III (the

1 See case numbers 1:20-cv-00942, 1:20-cv-00943, 1:20-cv-00944, 1:20-cv-

00947, 1:20-cv-00951, 1:20-cv-00952, and 1:20-cv-00953. Each case

alleges substantially similar claims, brought by the same attorneys,

against the same Defendants, and arising from the same underlying events.

2 Plaintiffs’ amended complaint incorrectly alleges that one of the

officers killed in the attack, Officer Smith, is also a Plaintiff in

this case. (Doc. 8 ¶ 56.)

“Individual Defendants”), in addition to the four inmate

Defendants (the “Inmate Defendants”). (Doc. 8.) Although the

amended complaint refers to claims for negligent and intentional

infliction of emotional distress and false imprisonment, which are

state law causes of action, it makes clear that all are alleged

instead to arise under Section 1983.

Before the court is the Individual Defendants’ motion to

dismiss for failure to state a claim upon which relief can be

granted pursuant to Federal Rules of Civil Procedure 12(b)(1),

(2), (4), (5), and (6).3 (Doc. 17.) Plaintiffs responded in

opposition4 (Doc. 22), and the Individual Defendants have replied

(Doc. 23). For the reasons set forth below, the motion will be

granted and the amended complaint against the Individual

Defendants will be dismissed.

I. BACKGROUND

The amended complaint is an extraordinary 510 pages long,

which is wholly inconsistent with Federal Rule of Civil Procedure

8(a)(2)’s direction that a plaintiff provide “a short and plain

3 Defendants have filed separate motions to dismiss in each of the related

seven cases on the same grounds, which remain stayed pending the court’s

decision on the present motion.

4 In their response, Plaintiffs question the ability of the Attorney

General to represent the state employees in their individual capacity.

The Attorney General represents all Individual Defendants by virtue of

N.C. Gen. Stat. § 143–300.3: “the State may provide for the defense of

any civil or criminal action or proceeding brought against [a State

employee] in his official or individual capacity.” Plaintiffs have not

demonstrated why the Attorney General may not do so in this case.

statement of the claim showing that the pleader is entitled to

relief.” It is also a subsequent iteration of a previously-filed

action involving the same incident and some of the same parties,

which this court dismissed on grounds of sovereign immunity and

failure to allege a constitutional violation under Section 1983.

See Darden v. Cooper, No. 1:19CV1050, 2020 WL 5518508 (M.D.N.C.

Sept. 14, 2020). While it is difficult to distill such a prolix

document, the basic facts alleged in the present amended complaint,

viewed in the light most favorable to Plaintiffs, show the

following:5

Plaintiffs allege they are close family members of Wendy

Shannon who, along with three other officers, was employed at PCI

and murdered by the Inmate Defendants during an escape attempt.6

(Doc. 8 ¶¶ 11, 43.)7 Plaintiffs allege Defendants knew of the

potential for harm through the death of another officer at a

different facility in April 2017. (Id. ¶ 48.) On October 12,

2017, at least twelve close-custody prisoners and eighteen medium-

5 Defendants challenge Plaintiffs’ amended complaint as improper because

it was amended on the same day Plaintiffs attempted service. (Doc. 18

at 12-13.) Because both complaints would fail for lack of standing, the

court need not resolve this issue and accepts the allegations of the

amended complaint for purposes of the present motion only.

6 Plaintiffs in all eight cases claim to be close family members of

officer Wendy Shannon.

7 Plaintiffs’ amended complaint erroneously restarts the paragraph

numbers after paragraphs 57 and 23, and alters the page numbers by

labeling page 107 as page 98.

custody prisoners were working in a sewing plant operated by

Correction Enterprises (“CE”), located within the perimeter fence

of PCI. (Id. ¶ 51.) These prisoners included “close-custody”

prisoners, meaning those convicted of the most heinous and violent

crimes, such as murder and rape. (Id. ¶¶ 4, 51.) In contravention

of DPS and CE policy, and due to underlying staffing shortages,

correctional supervisors charged Officer Justin Smith with

guarding all thirty of the inmates in the plant alone. (Id. ¶ 51.)

On that day, four violent inmates gained unfettered access to

deadly tools and closed, unguarded hallways within the plant and

attempted to escape. (Id. ¶¶ 43, 54.) The four inmates attacked

employees, including Officer Shannon, with claw hammers and

scissors. (Id. ¶ 55.) Allegedly due to ineffective security

policies, monitoring, training, and equipment, the attack was

allowed to continue for over twenty minutes before help arrived.

(Id.) Officers Darden,8 Shannon, Howe, and Smith ultimately died

of the injuries inflicted upon them. (Id. ¶ 11.) Plaintiffs seek

compensatory damages, attorneys’ fees, costs, prejudgment

interest, and other equitable relief as the court deems proper,

all under the rubric of Section 1983. (Id. at 509-10.)

Plaintiffs generally charge that institutional failures

contributed to the danger for the inmates’ violent escape attempt.

8 No first names are alleged for Howe and Darden.

(Id. ¶ 54.) These failures include poor hiring and retention

practices; severe understaffing; improper training; lack of safety

equipment; lax, unenforced, and ineffective safety and security

procedures; and inadequate supervision of staff and inmates. (Id.

¶¶ 54-55.)

The Individual Defendants now move to dismiss the amended

complaint on several grounds. Principal among them are the

following: Plaintiffs failed to properly serve the vast majority

of Defendants; Plaintiffs failed to serve (properly or improperly)

a number of Defendants in the time ordered previously by the court;

Plaintiffs’ claims are barred by res judicata based on a prior

state-court lawsuit; Plaintiffs lack standing to assert their

claims under 28 U.S.C. § 1983; the Individual Defendants enjoy

qualified immunity; and the deliberate indifference claims fail

because Shannon was voluntarily employed. (Doc. 18.) Plaintiffs

have filed a six-page response that generally argues that the

Individual Defendants’ motion raises fact issues not suitable for

resolution on a motion to dismiss and in many respects fails to

respond to several of the Individual Defendants’ arguments. (Doc.

22.) The Individual Defendants filed a reply. (Doc. 23.) The

motion is ready for decision.

II. ANALYSIS

A. Legal Standard

Among the arguments raised, the Individual Defendants contend

that this case should be dismissed pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) because Plaintiffs lack

standing as they lack the capacity to bring Section 1983 claims

predicated on injuries to a third party, Shannon. (Doc. 18 at 13-

15.) In response, Plaintiffs argue that their Section 1983 claims

are “based on the Constitutional wrongs Plaintiffs have suffered

based on the wrongdoing Defendants have engaged in” and are not

wrongful death claims. Plaintiffs also argue that “Defendants

erroneously assert that Plaintiffs related to decedents and

survivors are only incidentally affected” by the injuries to and

death of Officer Shannon. (Doc. 22 ¶¶ 15, 21, 23.) These

assertions do not dispute the Individual Defendants’ arguments and

therefore fail to meet Plaintiffs’ burden under Local Rule 7.2 to

provide an argument as to the merits of their claim. L.R.

7.2(a)(4) (requiring briefs to contain argument, with reference to

all statutes, rules, and authorities relied upon). In the absence

of any explanation, the court nevertheless has the obligation to

determine whether the motion to dismiss is merited. See Local

Rule 7.3(k); Skinner v. Womack Army Med. Ctr., No. 1:19CV572, 2019

WL 6350628, at *4 (M.D.N.C. Nov. 27, 2019). While courts should

ordinarily rule on jurisdictional issues before proceeding to the

merits, see Jones v. Am. Postal Workers Union, 192 F.3d 417, 422

(4th Cir. 1999) (citing Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 118 (1998)), the prudential standing doctrine is a

threshold question that may be resolved before addressing

jurisdiction. See Tenet v. Doe, 544 U.S. 1, 6 n. 4 (2005) (“the

prudential standing doctrine[] represents the sort of threshold

question we have recognized may be resolved before addressing

jurisdiction”) (citation and internal quotation marks omitted);

Lolavar v. de Santibanes, 430 F.3d 221, 228 (4th Cir. 2005) (“there

is no invariable rule . . . that in each instance a district court

must find its subject matter jurisdiction before addressing other

questions in the controversy.”).

Federal district courts exercise limited jurisdiction. Exxon

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).

For a case or controversy to be justiciable in federal court, a

plaintiff must allege “such a personal stake in the outcome of the

controversy as to warrant his invocation of federal court

jurisdiction and to justify exercise of the court’s remedial powers

on his behalf.” White Tail Park, Inc. v. Stroube, 413 F.3d 451,

458 (4th Cir. 2005) (quoting Planned Parenthood of S.C. v. Rose,

361 F.3d 786, 789 (4th Cir. 2004)) (internal quotation marks

omitted). The judicial doctrine of standing is “an integral

component of the case or controversy requirement.” CGM, LLC v.

BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011)

(citation and internal quotation marks omitted). “Prudential

standing encompasses several judicially-created limitations on

federal jurisdiction, such as the general prohibition on a

litigant’s raising another person’s legal rights . . . and the

requirement that a plaintiff’s complaint fall within the zone of

interests protected by the law invoked.” Id. (citation and

internal quotation marks omitted).

Generally, challenges to constitutional standing are

addressed pursuant to Rule 12(b)(1) for lack of subject matter

jurisdiction because “Article III gives federal courts

jurisdiction only over cases and controversies.” Id. (citation

and internal quotation marks omitted). But Defendants do not argue

that Article III jurisdiction is lacking. Rather, they argue

prudential standing.

As the Fourth Circuit has explained, prudential standing is

not a jurisdictional question. United States v. Day, 700 F.3d

713, 721 (4th Cir. 2012) (“Unlike Article III standing, issues of

prudential standing are non-jurisdictional and may be pretermitted

in favor of a straightforward disposition on the merits.”)

(citation and internal quotation marks omitted); see also Harold

H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n. 2 (5th

Cir. 2011) (“Unlike a dismissal for lack of constitutional

standing, which should be granted under Rule 12(b)(1), a dismissal

for lack of prudential or statutory standing is properly granted

under Rule 12(b)(6)”); Rawoof v. Texor Petroleum Co., 521 F.3d

750, 756 (7th Cir. 2008) (“Prudential-standing doctrine is not

jurisdictional in the sense that Article III standing is.”)

(internal quotation marks omitted); VR Acquisitions, LLC v.

Wasatch Cty., 853 F.3d 1142, 1146 n. 4 (10th Cir. 2017) (dismissing

a complaint pursuant to Rule 12(b)(6), rather than Rule 12(b)(1),

where plaintiff lacked prudential standing because such standing

is not jurisdictional); American Iron & Steel Institute v. OSHA,

182 F.3d 1261, 1274 n. 10 (11th Cir. 1999) (“prudential standing

is flexible and not jurisdictional in nature”).

A motion to dismiss pursuant to Rule 12(b)(6) is meant to

“test[] the sufficiency of a complaint” and not to “resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992). To survive such a motion, “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 considering a

Rule 12(b)(6) motion, a court “must accept as true all of the

factual allegations contained in the complaint,” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam), and all reasonable

inferences must be drawn in the non-moving party’s favor, Ibarra

v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

B. Standing

Section 1983 provides a private right of action to those who

allege they have been deprived of rights, privileges, or immunities

secured by the Constitution or laws of the United States under the

color of state law. Parrat v. Taylor, 451 U.S. 527, 535 (1981).

Accordingly, a Section 1983 plaintiff, like any person who claims

a deprivation of constitutional or federally-protected rights,

must allege some violation of his or her personal rights — not

those of another. See English v. Powell, 592 F.2d 727 (4th Cir.

1979) (wife had no standing to maintain action arising from

husband’s demotion on job); Dohaish v. Tooley, 670 F.2d 934 (10th

Cir. 1982) (right to bring action under civil rights act is

personal in nature and does not accrue to a relative); Topic v.

Circle Realty Co., 532 F.2d 1273 (9th Cir. 1976) (litigants have

no standing to assert civil rights of third parties injured by

unlawful conduct). The question here is whether Plaintiffs’

injuries constitute the type of deprivation of personal rights

contemplated by Section 1983.

In their amended complaint, Plaintiffs make no claims

regarding any injuries they suffered due to the alleged failures

of the Defendants.9 At best, Plaintiffs have referred to a

9 Plaintiffs appear to allege they are injured because they, among other

allegations, “lost their lives,” were under a “substantial risk of

serious harm,” were “deprived of future earnings,” and were even “locked

inside the premises” due to the actions of each Individual Defendant.

See, e.g., Doc. 8 ¶¶ 390, 484. However, the facts only allege that, as

a result of Defendants’ failures, officers Darden, Shannon, Howe, and

Smith were murdered — not the Midgetts. Therefore, while a motion

pursuant to Rule 12(b)(6) “take[s] the facts in the light most favorable

to the [non-moving party],” for the purposes of this standing analysis,

the court “need not accept as true unwarranted inferences, unreasonable

constitutional liberty interest in continued association, care,

and support of Officer Shannon.10 (Doc. 8 ¶¶ 471-473.) However,

the Fourth Circuit does not recognize a cause of action arising

from “governmental actions affecting the family only

incidentally.” See Shaw v. Stroud, 13 F.3d 791, 804–805 (4th Cir.

1994) (dismissing a Section 1983 claim brought by the wife and

minor children of arrestee who was shot and killed by a state

trooper “because the Supreme Court has never extended the

constitutionally protected liberty interest incorporated by the

Fourteenth Amendment due process clause to encompass deprivations

resulting from governmental actions affecting the family only

incidentally”). This accords with the holdings of other circuits.

See, e.g., Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir.

1986) (declining to find violation of substantive due process right

based on government action causing only an “incidental

deprivation” of the relationship between appellants and their

adult relative when he was allegedly beaten to death by guards

while in prison); McCurdy v. Dodd, 352 F.3d 820, 830 (3d Cir. 2003)

(where officer shot and killed individual after he refused demands

to hold up his hands, father could not recover for deprivation of

conclusions, or arguments.” See Giarratano v. Johnson, 521 F.3d 298,

302 (4th Cir. 2008).

10 Of note, this loss of consortium claim is brought by “Plaintiff Rosa

Shannon, Tammy Shannon, and Arnetta Sheard.” However, Rosa Shannon,

Tammy Shannon, and Arnetta Sheard are Plaintiffs in case number 1:20-

cv-00953.

his relationship with his son because the official action was “not

directed at the parent-child relationship”); see also Claybrook v.

Birchwell, 199 F.3d 350, 357–58 (6th Cir. 2000) (adult children

whose father was shot by police officers could bring action under

Section 1983 only as administrators of father’s estate, not for

any collateral injuries suffered by themselves personally); Russ

v. Watts, 414 F.3d 783 (7th Cir. 2005) (parents had no

constitutional right to recover for loss of society and

companionship of adult son who was fatally shot by police officer);

Cook v. Howard, 484 F. App’x 805, 825 (4th Cir. 2012) (adhering to

Shaw and denying a substantive due process claim to a family member

of a decedent whose death was allegedly caused by the unlawful

conduct of police officers).11

For these reasons, Plaintiffs’ personal losses do not rise to

the level required to state a valid claim under 42 U.S.C. § 1983.12

Therefore, Defendants’ motion to dismiss Plaintiffs’ claims based

on lack of prudential standing will be granted.

11 Unpublished opinions of the Fourth Circuit are not precedential but

can be cited for their persuasive, but not controlling, authority. See

Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006).

12 Furthermore, as explained in this court’s prior order, Plaintiffs’

substantive due process violation claims in the voluntary employment

context are futile to the extent they are based on a deliberate

indifference theory of liability. See Darden v. Cooper, No. 1:19CV1050,

2020 WL 5518508, at *4 (M.D.N.C. Sept. 14, 2020) (“To support a due

process violation in the context of voluntary employment with the

government, it must be alleged that the government acted with an intent

to harm.”).

Because Plaintiffs have failed to establish standing under

Section 1983, the court need not address the Individual Defendants’

remaining 12(b)(1), (2), (4), (5), and (6) arguments.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that the Individual Defendants’

motion to dismiss (Doc. 17) is GRANTED.

/s/ Thomas D. Schroeder

United States District Judge

October 26, 2021