El v. Preston

`IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:19-CV-00090-KDB-SCR

MY'KA EL,

Plaintiff,

v. ORDER

M. WILDE,

R. PRESTON JR, AND

CHARLOTTE MECKLENBURG

POLICE DEPARTMENT,

Defendants.

THIS MATTER is before the Court on Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint (Doc. No. 63). The Court has carefully considered this motion and the

parties’ briefs and exhibits. For the reasons discussed below, the Court will GRANT the motion.

I. LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to

relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).

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 Atlantic

Corp., 550 U.S. at 570; Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010),

aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012). In evaluating

whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts

in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of

a cause of action, ... bare assertions devoid of further factual enhancement[,] ... unwarranted

inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Construing the facts in this manner,

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

that is plausible on its face.” Id. (internal quotations omitted). 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 of North

Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

II. FACTUAL BACKGROUND

On February 1, 2019, Plaintiff My’Ka El was traveling from his family’s house toward

Interstate 77 when he was stopped by police at a red light. See Doc. No. 64-1 at 11.1 Defendant

Charlotte Mecklenburg Police Officers M.D. Wilde and R. Preston allegedly stopped Plaintiff’s

vehicle because of a “burned out headlamp and fictitious tag.” Id. As the officers approached the

vehicle, they observed what appeared to be marijuana in the ashtray. Id. They then asked Plaintiff

to exit the vehicle, which Plaintiff did before removing several items from his pants pockets and

handing them to the officers. Id. Plaintiff then allegedly fled from the officers before falling in a

hole and injuring his leg. Id.

The officers then apprehended Plaintiff, handcuffed him, and conducted a pat down before

placing Plaintiff in the rear seat of the patrol vehicle and calling a medic to address his injured leg.

1 Pro se Plaintiff’s Statement of Facts in his Complaint is at points difficult to understand

and omits relevant portions of the pertinent facts. The Court, therefore, relies upon the facts as

testified to by Plaintiff’s attorney in the state court proceedings.

Id. After finding no contraband in the vehicle or surrounding area, the officers allegedly conducted

another more thorough pat down and Officer Preston felt what he believed to be drugs under

Plaintiff’s pants. Id. at 12. He unsuccessfully sought to remove the item several times. Id. Officer

Preston allegedly declined to conduct the search in the ambulance that had just arrived, as Officer

Wilde suggested, and instead cut off Plaintiff’s pants to retrieve the item. Id. The item turned out

to be cocaine. State v. El, 900 S.E.2d 236 (Table), at *1 (N.C. Ct. App. May 7, 2024).

A state court Magistrate Judge found that there was probable cause for Plaintiff’s arrest

and detention on February 4, 2019. Doc. No. 64 at 4. Plaintiff waived his right to a probable cause

hearing. Id. at 5. On February 22, 2019, Plaintiff filed this case, alleging that Defendants violated

his constitutional rights when they allegedly stopped his car, removed him from his vehicle “until

something was found [that he] could be arrested on without a warrant,” placed him in the back of

the police car, and cut off some of his clothing. Doc. No. 1 at 3. Specifically, he brought this action

under 42 U.S.C. § 1983 for violations of “Due Process of Law” in addition to the Sixth, Eighth,

and Fourteen Amendments to the U.S. Constitution Id. at 1. He seeks $200 million in damages

against each Defendant. In reviewing Plaintiff’s Motion to Proceed in Forma Pauperis, the then-

assigned District Judge considered his claims to more accurately be for unlawful stop, search, and

seizure and excessive force under the Fourth Amendment. See Doc. No. 6 at 2-3. The judge

allowed Plaintiff’s claim to proceed but noted that “there is little doubt that plaintiff’s Fourth

Amendment claims could be subject to Younger abstention.” Id. at 4.

While this case proceeded, so did the state criminal case. On April 2, 2019, a state court

Magistrate Judge again found that there was probable cause for Plaintiff’s arrest, this time for a

different charge arising out of the February 1, 2019, encounter. In July 2022, while this case was

stayed pursuant to the Servicemembers Civil Relief Act, Plaintiff was convicted in state court by

a jury of trafficking in cocaine and being a habitual felon. Doc. No. 64-1 at 101-2. He was

sentenced to 60-84 months in prison. Id. at 105. He appealed his conviction and argued that the

initial search of his person was unlawful and thus the state trial court erred by denying his motion

to suppress the cocaine found during the search. El, 900 S.E. 2d at *1; see also Doc. No. 64-2 at

1-52. The North Carolina Court of Appeals disagreed and concluded that the search was reasonable

under the circumstances and affirmed the denial of Plaintiff’s motion to suppress. Id. at *3.

Now before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint

(Doc. No. 63). Plaintiff filed three motions since the filing of Defendants’ motion alleging that

Defendants have “kidnapped” him and held him in a state prison, but he did not respond to this

motion directly. See Doc. Nos. 67, 69, 71. The Magistrate Judge denied each of Plaintiff’s motions

because his request for release from confinement was not cognizable in this unrelated civil rights

action and instead needed to be brought in a separate civil action. See Text-Only Orders on July

19, 2024, July 24, 2024, and August 1, 2024.

III. DISCUSSION

A. Defendant Charlotte Mecklenburg Police Department (“CMPD”)

Defendant CMPD argues that it must be dismissed from this case because it is not a

cognizable legal entity subject to suit. See Doc. No. 64 at 2 n.2. In order to successfully allege a

violation of 42 U.S.C. § 1983, Plaintiff must show that a “person” acting under the color of state

law violated his constitutional rights. “The capacity of a governmental body to be sued in the

federal courts is governed by the law of the state in which the district court is held.” Avery v. Burke

Cnty., 660 F.2d 111, 114 (4th Cir. 1981) (citing Fed. R. Civ. P. 17(b)); see also Smith v. Munday,

848 F.3d 248, 256–57 (4th Cir. 2017). In North Carolina, in the absence of a statute, “the capacity

to be sued exists only in persons in being.” McPherson v. First & Citizens Nat. Bank of Elizabeth

City, 81 S.E.2d 386, 397 (N.C. 1954). Therefore, departments of municipalities are not susceptible

to suit without statutory authorization. See Martin v. Mecklenburg Cnty. Park & Recreation Dep't,

No. 3:06-CV-290, 2006 WL 3780418, at *2 (W.D.N.C. Dec. 20, 2006). So, “under North Carolina

law, police departments cannot be sued as entities.” Smith, 848 F.3d at 256–57 (citing Ostwalt v.

Charlotte–Mecklenburg Bd. of Educ., 614 F.Supp.2d 603, 607 (W.D.N.C. 2008)); see also Moore

v. City of Asheville, 290 F.Supp.2d 664, 673 (W.D.N.C. 2003), aff'd, 396 F.3d 385 (4th Cir. 2005)

(holding in a § 1983 case that “under North Carolina law, the Asheville Police Department is not

a ‘person’ and, therefore, lacks the capacity to be sued.”); Wilson v. Fayetteville Police Dep't, No.

5:13-CV-178-BO, 2014 WL 555663 (E.D.N.C. Feb. 11, 2014) (dismissing § 1983 action for

failure to state a claim upon which relief can be granted because the Fayetteville Police Department

is not an entity capable of being sued.”).

In sum, Plaintiff's claims against the CMPD must be dismissed because CMPD lacks the

legal capacity to be sued.

B. Individual Defendants: Officers Wilde and Preston

In his Complaint, Plaintiff is challenging the constitutionality of the initial stop, seizure,

and search of his person. His allegations can be divided into two separate claims: (1) the initial

stop, seizure, and search and (2) his excessive force claim. The Court finds that both claims are

barred by the doctrine of res judicata. Further, the Court concludes that the principles of Heck v.

Humphrey and, as the previously-assigned District Judge noted, Younger v. Harris, could support

declining to interfere with Plaintiff’s state conviction through a Section 1983 action.

1. Res Judicata

Res judicata encompasses two concepts: claim preclusion and issue preclusion (or

collateral estoppel). Orca Yachts, L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002). The

rules of claim preclusion provide that if later litigation arises from the same cause of action as a

prior litigation, then the judgment in the prior action bars litigation “not only of every matter

actually adjudicated in the earlier case, but also of every claim that might have been presented.”

In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996). Issue preclusion, on the other hand,

“is more narrowly drawn” and “operates to bar subsequent litigation of those legal and factual

issues ... that were ‘actually and necessarily determined by a court.’” Orca Yachts L.L.C., 287 F.3d

at 318 (quoting In re Varat Enters., Inc., 81 F.3d at 1315).

For collateral estoppel to apply, (1) the issue sought to be precluded is identical to one

previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3)

determination of the issue must have been a critical and necessary part of the decision in the prior

proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom estoppel

is asserted must have had a full and fair opportunity to litigate the issue in the previous forum. See

Sedlack v. Braswell Servs. Grp., Inc., 134 F.2d 219, 224 (4th Cir. 1998). “A suppression hearing

in an earlier state criminal trial collaterally estops the relitigation of the same issues in a § 1983

action if the elements of collateral estoppel are met.” Gray v. Farley, 13 F.3d 142, 146 (4th Cir.

1993) (citing Allen v. McCurry, 449 U.S. 90, 105 (1980)); see also Benanti v. Poynter, 1:19-cv-

147-MR, 2022 WL 5502315, at *6 (W.D.N.C. Sept. 11, 2023).

The Court finds that the broad scope of Plaintiff’s appeal in state court prevents this Court

from relitigating the issues raised in his state trial court proceedings. There, Plaintiff, represented

by counsel, filed a motion to suppress any evidence relating to or derived from the search of his

person, which he argued was obtained without consent and without a search warrant, and also

suppress any statements alleged to have been made by Plaintiff to law enforcement officers at the

time. See Doc. No. 64-1 at 9-10. The motion was denied. Plaintiff appealed this decision after his

conviction to the North Carolina Court of Appeals, where he was again represented by counsel.

There, the court specifically examined whether “the trial court erred by denying his motion to

suppress the cocaine found during the search, contending that the search was conducted in an

unreasonable manner and was, therefore, unconstitutional.” El, 900 S.E.2d at *1.

Plaintiff’s claim here is no different because he raises the same argument that the search,

and the manner in which he was searched, violated his constitutional rights. However, both the

state trial judge and appellate court necessarily found that the search of Defendant’s person and

the surrounding circumstances of the search were constitutionally reasonable under the

circumstances even if less intrusive avenues to conduct the search existed. Id. at *3; see Gray, 13

F.3d at 147 (“The subject of the [suppression] hearing clearly was whether Gray had been beaten,

and the state trial judge, in denying the motion to suppress, necessarily found that Gray's

confession had not been coerced. The West Virginia Supreme Court of Appeals affirmed that

ruling.”). Had either state court found that it was unconstitutional, Plaintiff’s criminal case would

have been dismissed. In sum, a review of the record indicates that Plaintiff had a full and fair

opportunity to litigate the question of whether the search for and discovery of the cocaine was

unconstitutional at the probable cause stage, where he waived the hearing, the motion to suppress,

his trial, and on appeal, but he was unsuccessful. See Benanti, 2020 WL 5502315, at *7 (“Plaintiff

had a full and fair opportunity to litigate the issues and strenuously did so in a Motion to Suppress,

suppression hearing, pro se Motion for New Trial, and on appeal.”).

Plaintiff cannot relitigate the circumstances of his arrest in this Court and so his claims

must be dismissed.

2. Heck v. Humphrey

The Court also finds that the principles of Heck v. Humphrey are applicable to the facts of

this case, even if the doctrine itself would not bar Plaintiff’s claims. In Heck v. Humphrey, the

Supreme Court held that:

in order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's issuance

of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. 477, 486–87 (1994) (footnote removed). The Heck Court accordingly concluded that

district courts, when considering a state court prisoner’s claim for damages, “must consider

whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Id. at 487.

The Fourth Circuit has imposed two further requirements for Heck to bar a § 1983 claim.

First, a judgment in Plaintiff’s favor must necessarily imply the invalidity of his conviction or

sentence. See Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 197 (4th Cir. 2015) (quoting Heck,

512 U.S. at 487). Second, a claim may only “be brought by a claimant who is either (i) currently

in custody or (ii) no longer in custody because the sentence has been served, but nevertheless could

have practicably sought habeas relief while in custody.” Id. (citing Wilson v. Johnson, 535 F.3d

262, 267-68 (4th Cir. 2008).

Here, Plaintiff challenges the constitutionality of the traffic stop, seizure, and search in

totality and appears to assert that the evidence and arrest that followed the stop were the fruit of

an illegal stop. However, a successful § 1983 claim would require the Court to find that the search

was unlawful and the resulting “illegality of the search would require the suppression of the

evidence seized.” Ballenger v. Owens, 352 F.3d 842, 847 (4th Cir. 2003). Plaintiff “has advanced

no circumstances, nor conceived of any to our knowledge, to suggest how the state could convict

him of cocaine trafficking if the automobile stop were to have been found illegal. In the particular

circumstances of this case, there could be no independent source for the cocaine and no inevitable

discovery of it.” Id. Thus, “were that evidence to be suppressed by reason of the illegality of the

search, the conviction could not be salvaged.” Id. Accordingly, the Court finds that a judgment for

Plaintiff would necessarily imply the invalidity of his conviction.

Having found that Plaintiff’s claims necessarily imply the invalidity of his conviction, the

Court must next examine whether he has received a favorable previous judgment regarding that

conviction. The Court finds he has not. In fact, the North Carolina Court of Appeals recently

affirmed the state trial court’s denial of Plaintiff’s motion to suppress the cocaine found during the

search. See El, 900 S.E. 2d at * 3.

Plaintiff’s case, however, features unusual circumstances that differ from the more typical

situation where a state prisoner (or former state prisoner) files a Section 1983 action. The events

in dispute occurred on February 1, 2019. On February 4, 2019, a state Magistrate Judge upheld the

arrest in an Order, stating that “I, the undersigned, find that the defendant named above has been

arrested without a warrant and the defendant’s detention is justified because there is probable cause

to believe that on or about the date of the offense shown and in the county named above the

defendant named above did unlawfully, willfully and feloniously did possess 28 GRAMS OR

MORE of Cocaine.” Doc. No. 64-1 at 4. Plaintiff filed his Complaint in this case on February 22,

2019. See Doc. No. 1. The same Magistrate Judge upheld the arrest and detention of Plaintiff on a

different charge related to the initial encounter (resisting, delaying, and obstructing an officer

during the course of his duties) on April 2, 2019. However, the record does not decisively indicate

whether Plaintiff was in custody, and therefore had access to federal relief by filing a habeas action,

at the time he filed his Complaint in this Court.2 Accordingly, the Court cannot conclusively

determine whether Heck would bar Plaintiff’s § 1983 claim because it is not clear whether he had

meaningful access to pursue a habeas action, even though his claim clearly seeks to invalidate the

state arrest that led to his state court conviction.

The Court further notes that the application of the “custody” limitations of Heck under

these circumstances would compel an odd result. If Plaintiff had been in custody when he filed

this action, Heck would likely compel the Court to dismiss Plaintiff’s Complaint because granting

relief under Section 1983, as discussed above, would necessarily imply the invalidity of the search

which would not only reverse the state Magistrate Judge’s probable cause finding which validated

the arrest, but also render the subsequent conviction and sentence invalid. However, because

Plaintiff may not have been in custody, Heck may not bar his suit. In short, allowing a plaintiff in

these circumstances to avoid Heck not only provides an extra bite at the apple for individuals

granted pretrial release (compared to those who are held in custody during the pendency of their

cases), but creates an inadvisable incentive to file a Section 1983 case as soon as possible in an

attempt to gain an opportunity to seek relief under Section 1983 which would plainly not be

available once the plaintiff begins his state prison sentence.

2 Neither party has addressed this point. The Court also cannot take judicial notice of

Plaintiff’s arrest records from February 2019 because the Mecklenburg County Sherriff’s Office

only maintains three years of data on its website. See FAQ, “How Often is this Information

Updated?”, https://mecksheriffweb.mecklenburgcountync.gov/Inmate/FAQ (last visited Aug. 7,

2024).

3. Younger Abstension

The Younger abstention doctrine was not briefed by the parties, despite the previously-

assigned District Judge noting its applicability early in the proceedings. See Doc. No. 6 at 3-5.

However, as it was introduced earlier in the case but left unresolved, the Court will address it here.

The Supreme Court held in Younger v. Harris, that a federal court should not interfere with

state criminal proceedings except in the most narrow and extraordinary of circumstances. 401 U.S.

37, 43-44 (1971). Under this doctrine, abstention is proper in federal court when (1) there is an

ongoing state court proceeding; (2) the proceeding implicates important state interests; and (3) the

petitioner has an adequate opportunity to present the federal claims in the state proceeding. Emp'rs

Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995). Here, at the time Plaintiff filed

this suit, criminal charges were pending in which the validity of the stop, arrest, and search, and

the alleged use of force that are at issue in this § 1983 case, were to be and ultimately were

addressed.

The Plaintiff has not shown that his case presents those “most narrow and extraordinary of

circumstances” that would qualify as an exception to Younger abstention and necessitate federal

intervention. See Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). The Court would if necessary,

therefore, find that it ought to abstain from addressing the Plaintiff's claims due to the previously

initiated state court criminal charges and dismiss his Complaint. See Nivens v. Gilchrist, 444 F.3d

237, 246 (4th Cir. 2006) (“Because Younger is in part based on the idea that a state court is equally

competent in deciding federal constitutional issues when faced with a pending prosecution,

Younger does not contemplate those issues returning to federal court.” (citation omitted)).

In conclusion, multiple doctrines caution against this Court allowing Plaintiff to re-litigate

his claims in federal court and so the Complaint must be dismissed.?

SO ORDERED.

Signed: August 8, 2024

Kenneth D. Bell

United States District Judge woe

3 On July 2, 2024, Plaintiff filed an informal brief for his pending appeal to the Fourth

Circuit. See Doc. No. 62. A review of his appeal indicates that his appeal is more akin to a collateral

attack on his state conviction and further does not address the issues relevant to this motion. For

instance, he raises allegations of prosecutorial misconduct, ineffective assistance of counsel, and

argues that the state criminal indictment was defective, none of which were included or mentioned

in his federal pleadings. Jd. at 5. He further seeks to join other parties, to receive a restraining order

against the Defendants and their “allies,” favorable resolution of a discovery dispute, and a contact

order preventing Defendants from contacting Plaintiff without Court approval. Jd. at 6.

The Court finds that this motion does not implicate the questions being appealed because

this Order is limited only to explaining why the Court cannot consider Plaintiff's Section 1983

claim on the merits. See In re Murphy-Brown, LLC, 907 F.3d 788, 793 (4th Cir. 2018) (noting that

“district courts formally lose jurisdiction over the questions being appealed.”).

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