Opinion
5:21-CV-471-M
01-09-2023
WANDA MARIE ALLEN, Plaintiff, v. CITY OF RALEIGH POLICE DEPARTMENT and CAPTAIN MURR, Defendants.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This case is before the court on Defendants' motion to dismiss Plaintiff's complaint for lack of standing, lack of personal jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted pursuant to Rule 12(b) of the Federal Rules of Civil Procedure [DE #14]. Where this matter has been referred to the undersigned and the parties have not consented to the jurisdiction of the magistrate judge, Defendants' motion is undertaken pursuant to 28 U.S.C. § 636(b)(1)(B) for memorandum and recommendation. For the reasons stated below, it is recommended that Defendants' motion to dismiss be granted.
BACKGROUND
Plaintiff, proceeding pro se, alleges that (i) the City of Raleigh Police Department (RPD) unlawfully chased her daughter, Riza Marie Simpson, from October 19, 2021, through October 29, 2021; (ii) RPD declined Plaintiff's “requests for service” and thereby placed her home in danger; (iii) Captain Murr was the “Nightwatchman” of the Southeast District of RPD during the aforementioned period and declined to investigate “shootings (gunfire), car chase and foot chase being witnessed by neighbors of Riza Marie Simpson”; and (iv) Plaintiff's daughter died the morning of October 29, 2021 “in Southeast Raleigh District under Captain Murr.” (Compl. [DE #5] at 2-3.) Plaintiff demands $125 million in damages for her daughter's “violent death” and for “the captain to resolve [sic] his duty and never to hold any position of authority in any branch of law enforcement.” (Id. at 3.)
The proposed complaint survived frivolity review [DE #4]; the United States Marshals Service served Plaintiff's complaint and the summonses Plaintiff drafted [DE ##6, 7, 8] via certified mail; and Defendants filed the instant Motion to Dismiss [DE #14]. Before receiving a ruling from the court on Defendants' motion, Plaintiff twice moved for interlocutory appeal [DE ##22, 31], which the Fourth Circuit dismissed for lack of jurisdiction [DE #41]. Defendants' motion to dismiss is, therefore, ripe.
D ISCUSSION
Defendants move to dismiss for lack of standing, failure to state a claim upon which relief can be granted, insufficient service of process, and lack of personal jurisdiction. (Defs.' Mot. Dismiss [DE #14]; Defs.' Mem. Supp. Mot. Dismiss [DE #15] at 1-17.) The undersigned first addresses the standing and failure to state a claim arguments and then turns to the service of process and personal jurisdiction issues.
I. Standing
The power of federal courts extends only to “Cases” and “Controversies.” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016) (citing U.S. Const. art. III, § 2). “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Spokeo, 578 U.S. at 338 (citing Raines v. Byrd, 521 U.S. 811, 820 (1997)). To have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 578 U.S. at 338 (first citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); and then citing Friends of the Earth, Inc. v. Laidlaw Envtl Servs., 528 U.S. 167, 180-81 (2000)). “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating' each element.” Spokeo, 578 U.S. at 338 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). An individual may not sue for injuries caused to another person, not even a family member. Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005).
The issue of constitutional standing could also be framed in the context of Fed.R.Civ.P. 12(b)(1), which provides the basis for dismissal for lack of subject-matter jurisdiction. See PEM Entities LLC v. County of Franklin,___ F.4th,___,___ 2023 WL 105711, at *2 (4th Cir. Jan. 5, 2023) (noting that “a claimant's standing implicates a federal court's subject matter jurisdiction”); CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 51-52 (4th Cir. 2011) (citing cases and explaining the connection between standing and the case or controversy requirement); cf. Warth, 422 U.S. at 498 (framing constitutional standing as a justiciability issue). The substantive analysis regarding injury, causation, and redressability is the same.
Under North Carolina law, a wrongful death action “may be brought only by the personal representative or collector of the decedent.” Latka v. Miles, No. 7:14-CV-10-FL, 2015 WL 1410378, at *4 (E.D. N.C. Mar. 26, 2015) (quoting Burcl v. N.C. Baptist Hosp., Inc., 306 N.C. 214, 217 (1982)); see N.C. Gen. Stat. § 28A-18-2(a). The plaintiff in a North Carolina wrongful death action “must both allege and prove that he has the capacity to sue.” Burcl, 306 N.C. at 218 (citing first citing N.C. R. Civ. P. 9(a); then citing Carr v. Lee, 249 N.C. 712 (1959); and then citing Journigan v. Little River Ice Co., 233 N.C. 180 (1951)). “Parents may not maintain [wrongful death] actions in their individual capacities for deaths of their children.” Burcl, 306 N.C. at 217 (first citing Killian v. Southern Ry. Co., 128 N.C. 261 (1901); and then citing Scarlett v. Norwood, 115 N.C. 284 (1894)).
Here, Plaintiff seeks relief “due to [her] daughter[‘s] violent death.” (Compl. at 3.) This is an attempt to sue for injuries caused to another person. Plaintiff has not alleged any violation of her federally protected rights that would invoke this court's jurisdiction under 28 U.S.C. § 1331 or shown that she has suffered any injury for purposes of standing. Accordingly, she lacks standing for any federal claim she may be attempting to bring. See Spokeo, 578 U.S. at 338; Myers, 418 F.3d at 400.
Plaintiff's passing mention of RPD declining requests for service and thereby placing her home in danger is conclusory and lacks the factual allegations necessary to state a claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To whatever extent that statement could be construed as sufficient for standing, the undersigned recommends that such claim be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). See also DeShaney v. Winnebago Cnty. Dep't Soc. Servs., 489 U.S. 189, 195-96 (1989).
Plaintiff has also not alleged that she is the personal representative or collector of her daughter's estate. Plaintiff has therefore failed to show that she has standing to bring a North Carolina wrongful death action on behalf of her deceased daughter. See Burcl, 306 N.C. at 217-18.
II. Rule 12(b)(6) - Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint or any claims contained therein that fail to state a claim upon which relief may be granted. The intent of Rule 12(b)(6) is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (all reasonable inferences drawn in favor of plaintiff). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
To survive a 12(b)(6) motion, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not contain detailed factual allegations, but it must give a defendant fair notice of what the claim is and the grounds upon which it rests. Id. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” which are sufficient to raise a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Facial plausibility is more than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. It requires the plaintiff to articulate facts “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (‘“[N]aked assertions' of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.'” (quoting Twombly, 550 U.S. at 557)).
A. Defendant RPD
Any claims against RPD should be dismissed because (i) RPD is an entity not capable of being sued and (ii) the factual allegations contained in Plaintiff's complaint do not state a facially plausible claim against RPD.
“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. County of Burke, 660 F.2d 111, 113-14 (4th Cir. 1981). A North Carolina municipal police department is not a legal entity capable of being sued. Phipps v. Grady, No. 7:17-CV-78-H, 2018 WL 1144976, at *2 (E.D. N.C. Mar. 2, 2018) (“By statute, the city or county is the legal entity which can sue and be sued, not the sheriff's department or police department of a county or city.”) (first citing N.C. Gen. Stat. §§ 153A-11, 160A-11; then citing Hughes v. Bedsole, 913 F.Supp. 420, 426 (E.D. N.C. 1994); then citing Graham v. Golden Corral, No. 5:04-CV-541-H, ECF No. 10 (E.D. N.C. Jan. 7, 2005); and then citing Phipps v. Grady, No. 7:15-CV-103-F, 2016 WL 4556763 (E.D. N.C. Aug. 31, 2016)). Whatever claims Plaintiff purports to bring against RPD should be dismissed because RPD is not an entity capable of suit.
Moreover, Plaintiff's factual allegations against RPD are speculative and conclusory. Plaintiff's complaint does not state that RPD caused the death of her daughter. This is an example of naked assertions that do not cross the line from possibility to plausibility. See Francis, 588 F.3d at 193.
B. Defendant Captain Murr
Plaintiff has not specified whether she is suing Captain Murr in his official or individual capacity. Either way, Plaintiff has failed to state a claim against Captain Murr.
If Plaintiff's intent were to sue Captain Murr in his official capacity, her claim should be dismissed for at least two reasons. First, official capacity actions should be treated as actions against the governmental entity, see, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), and Plaintiff has failed to identify an entity which is capable of being sued, see Phipps, 2018 WL 1144976, at *2. Second, even assuming Plaintiff had sued an entity capable of suit, her claim would still fail because she does not allege constitutional injury attributable to an official policy, procedure, or custom. To establish liability against a local governmental entity under 42 U.S.C. § 1983, a plaintiff must show that the alleged constitutional injury is attributable to an official policy, procedure, or custom of a local governmental entity. Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978); see also Lytle v. Doyle, 326 F.3d 463, 473 7
(4th Cir. 2003) (holding that “isolated incidents of unconstitutional conduct by subordinate employees are not sufficient to establish a custom or practice for § 1983 purposes” (internal quotations omitted)). Plaintiff has not alleged any policy, procedure, or custom that contributed to the wrongdoing she has alleged.
If Plaintiff sues Captain Murr in his individual capacity, she has failed to allege facts which meet the facial plausibility standard. Plaintiff's complaint contains sparse factual allegations, and those which are present state simply that Plaintiff's daughter was unlawfully chased by police in cars and that Plaintiff “has reason to believe” her daughter's death “actually occurred . . . in Southeast Raleigh District under Captain Murr.” (Compl. at 2-3.) Plaintiff does not explain the reasons for her belief, and it is unclear whether she is alleging that RPD officers under the direction of Captain Murr caused her daughter's death or whether she is claiming some third-party did and Captain Murr did not take action to prevent it. That is insufficient to push the complaint over the possibility/plausibility line. See Francis, 588 F.3d at 193. Furthermore, Plaintiff's statements that RPD, under Captain Murr's watch, declined her calls for service and placed her home in danger are not sufficient to meet the state-created danger exception to the general rule that “the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney, 489 U.S. at 196 (citing multiple cases); see also Callahan v. N.C. Dep't Pub. Safety, 18 F.4th 142, 146-47 (4th Cir. 2021) (discussing DeShaney and explaining the state-created danger exception). Plaintiff's factual allegations are simply too speculative to state a claim.
III. Rules 12(b)(2) & (5) - Personal Jurisdiction & Service of Process
Defendants also challenge the service of process, and in turn, whether the court has obtained personal jurisdiction over Defendants. See generally May v. Martin Fein Interest Ltd., No. 5:21-CV-83-M, 2022 WL 1597820, at *4 (E.D. N.C. May 19, 2022) (explaining motions pursuant to Fed.R.Civ.P. 12(b)(2) & (5)). Plaintiff has failed to show effective service of process and, in turn, that the court has obtained personal jurisdiction over Defendants. Accordingly, dismissal pursuant to Rules 12(b)(2) & (5) is also warranted.
On December 8, 2021, the clerk sent Plaintiff's summonses and complaint to the United States Marshals Service for service [DE #6]. Plaintiff addressed each summons to “City of Raleigh Police Department, Captain Murr, 2800 Rock Quarry Rd., Raleigh, NC 27610.” The Marshals Service served the summonses and complaint via United States Postal Service certified mail, return receipt requested, and the process receipts and returns indicate delivery on December 28, 2021, signed for by R.W. Wyrick. (Process Receipts & Returns [DE ##7, 8.)
There is some discrepancy whether Plaintiff wrote “Captain Murr” or “Captain Marr.” (See Defs.' Mem. Supp. Mot. Dismiss at 5.) The process receipt and return forms prepared by the clerk for the United States Marshals Service indicates “Captain Marr” [DE #6-1, 6-2]. However, Plaintiff's handwriting on the prepared summonses is ambiguous.
Defendants have attached to their supporting memorandum signed declarations from Robert Wyrick and Defendant Murr regarding service of process. (Defs.' Mem. Supp. Mot. Dismiss, Ex. 1 (“Wyrick Decl.”) [DE #15-1]; Ex. 2 (“Murr Decl.”) [DE #15-2].) Wyrick indicates that he is a senior police officer with RPD who was working the front desk at the RPD building located at 2800 Rock Quarry Road on December 28, 2021, and he received and signed for two envelopes. (Wyrick Decl. at 1.) Wyrick further indicates that no RPD employee has authorized him to accept service of process for any lawsuit and that he is not the chief executive officer, mayor, manager, or clerk for the City of Raleigh. (Id. at 2.) Defendant Murr indicates that (i) he was never personally served with the summons and complaint; (ii) he has not authorized anyone to accept or waive service of process on his behalf in this action; (iii) he does not reside at 2800 Rock Quarry Road, Raleigh, NC; (iv) Plaintiff has not asked him to waive service; and (v) he is not the chief executive officer, mayor, manager, or clerk for the City of Raleigh. (Murr Decl. at 1-2.)
“A plaintiff has the burden to show that she effected service of process properly and that the court has personal jurisdiction over all defendants.” Saimplice v. Ocwen Loan Servicing Inc., 368 F.Supp.3d 858, 865 (E.D. N.C. 2019); see also Diede v. UNC Healthcare, No. 5:16-CV-788-BR, 2018 WL 3448219, at *1 (E.D. N.C. July 17, 2018) (“When a defendant challenges the court's jurisdiction under Rule 12(b)(2), ‘the plaintiff bears the burden [of] making a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge.'” (quoting Consulting Eng'rs Corp. v. Geometric Ltd., 561 F.3d 273, 276 (4th Cir. 2009))). “Failure to properly serve a defendant prevents a court from obtaining personal jurisdiction over the defendant and entitles the defendant to dismissal under Rule 12(b)(2).” Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352, at *3 (E.D. N.C. Oct. 20, 2011) (first citing Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998); and then citing Thomas v. Green Point Mortg. Funding, No. 5:10-CV-365-D, 2011 WL 2457835, at *1 (E.D. N.C. June 16, 2011)). While technical requirements of service may be construed liberally, Diede, 2018 WL 3448219, at *1 (citing Elkins v. Broome, 213 F.R.D. 273, 275 (M.D. N.C. 2003)), “the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored,” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., 733 F.2d 1087, 1089 (4th Cir. 1984). Pro se plaintiffs bear the responsibility of providing the correct information to the United States Marshals Service to effect service of process. See Scott v. Md. Dep't of Labor, 673 Fed.Appx. 299, 306 (4th Cir. 2016) (per curiam) (citing Armco, 733 F.2d at 1089, to support holding that pro se plaintiff's failure to provide information for the United States Marshals Service to effect proper service was not a mere technicality and that failure to enforce Rule 4 “would eviscerate the clear requirements” of the rule).
Rule 4 of the Federal Rules of Civil Procedure applies to service of process in federal court. Absent waiver, service must occur within ninety days after the complaint is filed. Fed.R.Civ.P. 4(m).
Rule 4(e) applies to service of an individual within a judicial district of the United States. Service of an individual can occur by (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made, or (2) by delivering a copy of the summons and complaint to the individual personally, leaving a copy of the summons and complaint at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there, or delivering a copy of the summons and complaint to an agent authorized to receive service. Fed.R.Civ.P. 4(e). North Carolina law sets forth the manner in which service of process can be effected on a natural person. May, 2022 WL 1597820, at *2 (citing N.C. Gen. Stat. §1A-1, Rule 4(j)(1)). Under North Carolina law, “service of process cannot be effected upon [an individual] by serving at his place of employment individuals who are not authorized to accept service of process,” Elkins, 213 F.R.D. at 276. See also Watson v. Jiffy Lube Lube Core, No. 5:10-CV-572-F, 2011 WL 2456707, at *2 (E.D. N.C. June 15, 2011) (noting that N.C. R. Civ. P. 4(j) & 4(j2) “do not include certified mail addressed to a defendant's place of employment, return receipt requested, and signed by a person who is neither the addressee nor the addressee's agent”).
While service by mail may be made other than at an individual defendant's residence, service is effected only if the process is delivered to the defendant. See N.C. R. Civ. P. 4(j)(1)(c) (authorizing service of an individual by “mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee” (emphasis added)); Moore v. Cox, 341 F.Supp.2d 570, 573 (M.D. N.C. 2004).
Rule 4(j) of the Federal Rules of Civil Procedure applies to service of a local government. Service of a local government can occur by delivering a copy of the summons and complaint to the chief executive officer of the local government or by serving a copy of the summons and complaint “in the manner prescribed by that state's law for serving a summons or like process on such a defendant.” Fed.R.Civ.P. 4(j)(2). “Under North Carolina law, a plaintiff may serve a ‘city, town, or village . . . by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk ....'” Fordham, 2011 WL 5024352, at *2 (citing N.C. Gen. Stat. § 1A-1, Rule 4(j)(5)(a)). “North Carolina strictly enforces this rule . . . and does not provide for any exceptions to personal service, other than the specific procedure set forth in the statute.” Fordham, 2011 WL 5024352, at *2 (first citing Crabtree v. City of Durham, 136 N.C.App. 816, 817 (2000); and then citing Johnson v. City of Raleigh, 98 N.C.App. 147, 149 (1990)).
A. Defendant RPD and Defendant Murr in Official Capacity
As explained above, RPD is not an entity capable of being sued. Therefore, it is not possible for Plaintiff to properly serve RPD and for the court have personal jurisdiction over it. Similarly, because any claim against a local government employee in his official capacity is treated as an action against the governmental entity, see Graham, 473 U.S. at 165, service must be properly effected on the governmental entity pursuant to Fed.R.Civ.P. 4(j)(2). Here, Plaintiff has shown neither service on the City of Raleigh's chief executive officer, see Fed.R.Civ.P. 4(j)(2)(A), nor service on the city's mayor, city manager, or clerk, see N.C. Gen. Stat. § 1A-1, Rule 4(j)(5)(a) (state rule of civil procedure governing service of process on a municipality). For these reasons, Plaintiff has failed to carry her burden to show effective service upon Defendant RPD and Defendant Murr in his official capacity, and any claims against these defendants should be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) & (5).
B. Defendant Murr in Individual Capacity
As to any claim against Defendant Murr in his individual capacity, the declarations from Robert Wyrick and Defendant Murr and the process receipts and returns show that Plaintiff has not effected proper service on Defendant Murr pursuant to Fed.R.Civ.P. 4(e)(1) or (2). Despite being on notice of these defects since at least the end of February 2022 (Defendants' motion to dismiss was filed on February 17, 2022), Plaintiff has not corrected these deficiencies. Plaintiff has also not responded in opposition to Defendants' motion to dismiss.
The plain requirements regarding service of process and personal jurisdiction “may not be ignored” in the circumstances presented by this case. Armco, 733 F.2d at 1089; see also Scott, 673 Fed.Appx. at 305-06. Because Plaintiff has failed to carry her burden to show effective service upon Defendant Murr in his individual capacity, any such claim should be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) & (5).
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendant's motion to dismiss [DE #14] be GRANTED and Plaintiff's claims dismissed in their entirety.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 23, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D. N.C. Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).