Opinion
7:23-CV-292-M
05-08-2024
TYRANCE DREQUAN BENBOW and BECKY LEE LESALLE, individually, as heir to Tyrance Drequan Benbow and as representative of the estate of Tyrance Drequan Benbow deceased, Plaintiffs, v. SHERIFF JOHN W. INGRAM, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendant Mark Hewett's motion to dismiss the claims against him, [DE-69], and Defendants Sheriff John Ingram, Josh Davies, Keith Bowling, Alexander Melvin, and Johnnie Benton's partial motion to dismiss the amended complaint, [DE-72]. Plaintiffs have not responded to either motion and the time to do so has expired. These motions have been referred to the undersigned for recommendation to the district court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1), E.D. N.C. For the following reasons, it is recommended that Hewett's motion to dismiss the claims against him be denied as moot and the partial motion to dismiss be allowed.
I. Background
Plaintiffs Tyrance Benbow and Becky LaSalle brought this action against Defendants Sherriff John Ingram, Josh Davies, Keith Bowling, Alexander Melvin, Johnnie Belton, Mark Hewett, and “John Does I-X inclusive” related to an incident that occurred on July 8, 2022. Am. Compl. [DE-66]. The facts as alleged in the amended complaint are summarized below.
On July 6, 2022, Benbow appeared in Brunswick County District Court to answer to two misdemeanor charges, and while exiting the courtroom, Melvin, a Brunswick County Sherriff's Office (“BCSO”) deputy, allegedly told him, “I'm going to hang you.” Id. ¶¶ 17-18. Fearing for his safety, Benbow began having a friend or family member ride with him or follow his vehicle whenever he drove to or from his residence. Id. ¶ 18.
On July 8, that role fell to a family friend, Deatrice Gore, and her fiance, Tremaine Thomas. Id. ¶ 19. The pair was following Benbow in their vehicle at approximately 7:15 p.m. when Benbow stopped at a Circle K to purchase gas. Id. To get home from the Circle K, Benbow had to travel approximately ten miles on Highway 17 North, a four-lane roadway, and then make a right-hand turn onto Red Bug Road. Id. ¶ 20. Once on Red Bug Road, Benbow would have to travel for about one mile to Holden Beach Road, where he would then turn left and continue driving east to his mother's residence in Seashore Hills. Id.
As Benbow exited the gas station and approached Red Bug Road, Bowling, a BCSO deputy, and two additional deputies in unmarked cars positioned themselves behind Benbow's vehicle. Id. ¶ 21. Approximately five miles from the Circle K, Davies, a BCSO sergeant, and another officer stopped and searched Gore's vehicle under the pretext of smelling marijuana. Id. ¶ 22. While Gore was stopped, Benbow continued driving onto Red Bug Road, allegedly followed at less than a car length by Bowling. Id. ¶ 23. Shortly thereafter, BCSO deputies Melvin and Benton joined Bowling's pursuit, and according to an eyewitness, the three cars were bumper-to-bumper behind Bowling's vehicle. Id. Allegedly, the blue lights were activated on the undercover vehicles, but not the sirens. Id.
At the intersection of Red Bug Road and Holden Beach Road, Benbow allegedly activated his left turn signal and slowly maneuvered around the car in front of him, while Bowling, Melvin and Benton illegally crossed the double yellow lines and drove down the wrong side of Red Bug Road head-on into vehicles turning onto Red Bug Road from Holden Beach Road. Id. ¶¶ 24-25. Around this time, Melvin, communicating with Bowling via BCSO channels, stated, “Keith, you got to get him stopped.” Id. ¶ 26. Allegedly, Bowling responded by accelerating across both travel lanes on Holden Beach Road, aiming for the driver's side of Benbow's vehicle. Id. Benbow narrowly avoided this alleged attempt to use the precision immobilization technique (“PIT”), and at this point, Bowling positioned his vehicle alongside the driver's side of Benbow's car while traveling in the westbound lane of Holden Beach Road. Id.
Benbow continued down Holden Beach Road, allegedly at a speed between forty-five and fifty-five miles per hour, and he was allegedly unable to safely stop his vehicle because of a reduced shoulder on the right side of the road and cars traveling westbound on his left. Id. ¶ 27. At some point, Melvin instructed Bowling to “[s]top him before he gets to Seashore,” and Bowling radioed BCSO dispatchers and informed them that he was going to use the PIT maneuver to stop Benbow. Id. ¶ 29. Within seconds of these communications, Bowling's vehicle allegedly hit the rear of Benbow's vehicle, flipping it head-on into a vehicle parked on the shoulder of the westbound travel lane. Id. ¶¶ 40-42.
Plaintiffs allege a litany of errors and oversights that occurred at the accident scene and over the following days. Id. ¶¶ 44-45. However, as relevant here, after the wreck, neither Bowling, Melvin, Benton, nor Hewett, the. Fire Chief for Civietown Volunteer Fire and Rescue Department who responded to the scene, approached Benbow to evaluate his condition; instead, they allegedly assisted the passengers in the vehicle Benbow's car had struck and inquired as to whether there were any passengers:n Benbow's car, without even checking Benbow for a pulse. Id. ¶¶ 46, 89. According to an eyewitness who arrived at the scene about twenty minutes after the accident, Benbow was lying partially outside his vehicle and appeared deceased, no emergency personnel were rendering aid, and BCSO deputies were “standing around not doing anything.” Id. Due to these factors, the eyewitness assumed Benbow was dead until Hewett suddenly realized Benbow was still alive and called for help. Id. Despite subsequent rescue efforts, Benbow succumbed to his injuries and LaSalle, his biological mother, now brings this lawsuit in both her capacity as his mother and in a representative capacity as the personal representative of his estate. Id. ¶¶ 6-7.
Plaintiffs seek relief under 42 U.S.C. § 1983, claiming unreasonable detention and seizure, excessive force, and violation of the right to equal protection under the law, and under North Carolina law, claiming wrongful death arising from false arrest/false imprisonment, wrongful death arising from battery, wrongful death arising from negligence, and negligent infliction of emotional distress. Id. ¶¶ 51-132. In support, they rely on the above alleged facts, and also assert that Bowling, Melvin, and Benton did not possess the required training or certification to perform the PIT maneuver; that Bowling, Melvin, and Benton erroneously decided that road conditions were safe and reasonable for the PIT maneuver despite the reduced visibility at sunset, the fact that Holden Beach Road is a two-lane road with only a single travel lane in either direction, increased road traffic given the Fourth of July holiday, the reduced shoulder on either side of the road, BCSO policies requiring safe road conditions before attempting the maneuver, BCSO policies prohibiting the PITting of vehicles travelling over forty miles per hour, BCSO policies recognizing the use of the PIT under crowded and restrictive road conditions as per se unreasonable, BCSO policies regarding the PIT as a use of deadly force, knowledge of Benbow's prior history of peaceful compliance with law enforcement, and knowledge of Benbow's home address; and that Bowling, Melvin, and Benton were not pursuing Benbow for any known violation of North Carolina law, as Benbow was not speeding, driving recklessly, or transporting drugs, was unarmed, and was not a fleeing felon. Id. ¶¶ 29-38.
With respect to Davies and Ingram, who were not present during the alleged PIT maneuver or at the accident scene, Plaintiffs allege that Davies, as the BCSO Drug Enforcement Unit's (“DEU”) sergeant, trained, supervised, and disciplined BCSO deputies on the DEU, including Bowling, Melvin, and Benton. Id. ¶ 79. Plaintiffs allege that Sherriff Ingram established the DEU's priorities and could control training policies and practices but did not require deputies to hold a state certification before using the PIT; maintained a pattern and practice of using the PIT on mostly Black drivers in non-threatening circumstances; and failed to intervene or effect reasonable remedial measures to address officers' use of the PIT maneuver, including in the instant case. Id. ¶¶ 80-84.
Turning to the relevant claim-specific allegations, as apart of their § 1983 claims, Plaintiffs allege that race was a motivating factor in law enforcement's pursuit of Benbow and the ensuing accident and specifically state that all the Defendants are white, except for Benton, who is Black; that Benbow was Black; and that BCSO is “well known in Brunswick County for using the biasbased practices of racial profiling and racial stereotyping to target African Americans.” Id. ¶¶ 614, 86-96. With respect to the North Carolina negligent infliction of emotional distress claim, Plaintiffs allege that within days of Benbow's death, members of the DEU named their new drug dog “Duke,” which was Benbow's nickname and the name the officers allegedly used to refer to Benbow; and that BCSO deputies allegedly refused to allow LaSalle to see Benbow at the hospital and falsely informed her that she would be able to see him three days after the accident, when in reality, it took her nearly three months to see his body. Id. ¶¶ 127-28.
Hewett filed the motion to dismiss Plaintiffs' claims against him in both his individual and official capacities on November 20, 2023. [DE-69]. Ingram, Davies, Bowling, Melvin, and Benton filed the motion for partial dismissal on that same date, requesting that the court dismiss Counts IV, V, and VIII of the amended complaint, as well as all official-capacity claims against Davies. [DE-72]. Plaintiffs have not responded to either motion but filed a notice of voluntary dismissal as to Hewett on February 29, 2024. [DE-89].
II. Discussion
A. Hewett's Motion to Dismiss
Hewett moves under Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure to dismiss all claims against him, both individually and in his official capacity. Def.'s Mot. [DE-69] at 2. Plaintiffs have not responded to the motion but have filed a notice of voluntary dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i) as to any claims alleged against Hewett, and subsequent docket entries reflect that he has been terminated from the case. Notice [DE-89] at 1. Accordingly, it is recommended that Hewett's motion to dismiss all claims against him be denied as moot.
B. Ingram, Davies, Bowling, Melvin, and Benton's Motion to Dismiss
Ingram, Davies, Bowling, Melvin, and Benton (“BCSO Defendants”) move to dismiss Counts IV, V, and VIII of the amended complaint, as well as all official-capacity claims against Davies, under Fed.R.Civ.P. 12(b)(6). Defs.' Mot. [DE-72] at 2. Plaintiffs have failed to respond to the motion, and the time to do so has passed. The undersigned will consider the merits of each of the BCSO Defendants' arguments below.
A Rule 12(b)(6) motion aims to test the. complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); BellAtl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a motion to dismiss, the complaint '“must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014). A court need not accept as true a complaint's legal z conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302; see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge[ ] [his] claims,” Twombly, 550iU.S. at 570, beyond the realm of “mere possibility” into “plausibility,” Iqbal, 556 U.S. at 678-79.
1. Count IV: 42 U.S.C. § 1983 - Equal Protection
Section 1983 imposes liability on anyone who, under the color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. However, § 1983 is not a “source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (citations omitted)/ Thus, to stated cause of action under § 1983, a plaintiff must allege facts indicating a deprivation of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 49-50 (1988). In the instant case, Plaintiffs allege that Bowling, Melvin, and Benton violated Benbow's right to equal protection, Am. Compl. [DE-66] ¶¶ 86-96, and the BCSO Defendants seek dismissal of Plaintiffs' equal protection claim because it “contains only conclusory statements that the defendants acted based on Benbow's race.” Defs.' Mem. [DE-73] at 6.
The Equal Protection Clause provides that “[n]o State shall.. . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
The Equal Protection Clause also “prohibits police officers from selectively enforcing laws based on race.” Ogunsula v. Md. State Police, No. CV ELH-20-2568, 2021 WL 6105503, at *29 (D. Md. Dec. 23, 2021) (quoting Johnson v. Holmes, 782 Fed.Appx. 269, (4th Cir. 2019) (citing Whren v. United States, 517 U.S. 806, 813 (1996))), reconsideration denied, No. CV ELH-20-2568, 2022 WL 3290713 (D. Md. Aug. 11, 2022). To sufficiently plead an equal protection claim for selective law enforcement, the complaint must allege “both discriminatory effect and that the officer's action was motivated by a discriminatory purpose.” United States v. Mason, 774 F.3d 824, 829 (4th Cir. 2014) (alteration and internal quotation marks omitted). Although the plaintiff is not required to show that discrimination was the defendant's “sole motive,” they “must allege the requisite discriminatory intent with more than mere conclusory assertions.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (emphasis in original).
Here, the BCSO Defendants contend that Plaintiffs' equal protection claim does not contain facts sufficient to state a claim for relief, only conclusory allegations. Defs.' Mem. [DE-73] at 6-14. Specifically, the BCSO Defendants argue that while Plaintiffs have indicated that Benbow . i was Black, that officer Benton is Black, and that officers Melvin and Bowling are white, they have not alleged facts showing that Benton, Melvin, and Bowling pursed Benbow, allegedly PITted him, and failed to provide aid to him because he was Black. Id.
In the amended complaint, Plaintiffs describe the BCSO's “bias-based policing practices”; the Selective Enforcement Unit (“SEU”) and DEU's “consistent[ ] targeting] [of] Blacks for investigative stops, roadside searches, vehicle stops, ‘stop & frisk' searches, extended roadside detainments, ‘pitting,' and warrantless arrests in numbers highly disproportionate to their overall presence in Brunswick County's general population”; and the SEU and DEU's “pack mentality,” as exhibited during a previous traffic stop of a Black driver at which Bowling and Melvin were present, an SEU supervisor used a racial slur, and Bowling and other SEU members were videotaped high-fiving and celebrating the successful PIT. Am. Compl. [DE-66] ¶ 88. Plaintiffs also assert that the justification the BCSO Defendants have given for attempting to stop Benbow- that Gore was following him home, and drug dealers often travel in tandem-is “nonsense”; that “[g]iven the level of distrust Black residents of Brunswick County have towards the SEU and DEU, it wasn't unreasonable for Benbow to drive until he found an area he believed was safe for him to pull over”; that “[h]ad Benbow been Caucasian or Asian, being followed home by a family friend would not have been considered evidence of drug trafficking”; and that at the accident scene,' x the BSCO Defendants “revealed that ‘Black Lives Don't Matter' by just standing around admiring their handy work while a twenty-one-year-old young man lay dying at their feet.” Id. ¶ 89. Critically, though, Plaintiffs have failed to respond to the instant motion.
The undersigned agrees that the allegations in the amended complaint are too general and conclusory especially where Plaintiffs have provided no argument to the contrary. See Todd v. King, No. 5:21-HC-2157-M, 2023 WL 2731026, at *2 (E.D. N.C. Mar. 30, 2023) (“[P]etitioner waived the right to respond to the exhaustion defense when he failed to respond to respondent's motion to dismiss”) (citing Pueschel v. United States, 369 F.3d 345,354 (4th Cir. 2004) (providing that, when a party fails to respond to a motion to dismiss, the court may dismiss the claims on the undisputed grounds therein)). Accordingly, it is recommended that Plaintiffs' § 1983 equal protection claim, Count IV, be dismissed on the undisputed grounds asserted by Defendants.
Arguably, the failure to assert any argument in response to the BCSO Defendants' motion could be construed as waiver. See e.g., Grayson OCo. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument-even if its brief takes a passing shot at the issue.”) (cleaned up); Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.”); Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (noting that failure to present legal arguments and “record citations or pertinent legal authority supporting ... a claim” waives the claim); Best v. Butterball, LLC, No. 4:22-CV-147-FL, 2024 WL 386921, at *1 (E.D. N.C. Jan. 31, 2024); accord Hughes v. B/E Aerospace, Inc., No. 12-CV-717,2014 WL 906220, at *1 n.l (M.D. N.C. Mar. 7, 2014) (“A party should not expect a court to do the work that it elected not to do.”).
2. Count V: Wrongful Death Arising from False Arrest/Faise Imprisonment
In North Carolina, a decedent's personal representative may seek damages when his death was caused “by a wrongful act, neglect, or default of another . .. such as would, if the [decedent] had lived, have entitled [him] to an action for damages.” N.C. GEN. STAT. § 28A-18-2 (2013); Raftery v. Wm. C. Vick. Const. Co., 230 S.E.2d 405, 407 (N.C. 1976). The survival of state law causes of action is governed by N.C. GEN. STAT. § 28A-18-1, which provides that, upon death, all claims by a decedent's estate survive except for causes of action for libel and slander, false imprisonment, and “causes of action where the relief sought could not be enjoyed, or granting it would be nugatory.” Miller v. 3M Co., No. 5:12-CV-00620-BR, 2013 WL 1098015, at *1 (E.D. N.C. Mar. 15, 2013) (quoting N.C. GEN. STAT. § 28A-18-l(b)).
In the instant case, Plaintiffs allege a wrongful death claim arising from Benbow's “false arrest/false imprisonment” against Bowling, Melvin, and Benton. Am. Compl. [DE-66] ¶¶ 97 106. Importantly, under North Carolina law, false arrest is a form of false imprisonment. Tuggles v. United States, 1:18CV97, 2019 WL 954978, at *3 (M.D. N.C. Feb. 27, 2019) (citing Fowler v. Valencourt, 435 S.E.2d 530, 532 ( N.C. 1993)). Thus, on a facial reading of the wrongful death statute, the asserted cause of action does not survive Benbow's death. N.C. GEN. STAT. § 28A-18-1(b). Accordingly, Plaintiffs have failed to state a claim for relief on this basis, and Count V should be dismissed.
3. Count VIII: Negligent Infliction of Emotional Distress .
Plaintiffs attempt to state a claim for negligent infliction of emotional distress (“NIED”) against Bowling, Melvin, and Benton, as well as former Defendant Hewett. Am. Compl. [DE-66] ¶¶ 124-32. To state an NIED claim in North Carolina, a plaintiff must allege that the defendant negligently engaged in conduct, it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress, and the conduct did in fact cause the plaintiff severe emotional distress. Johnston v. Leith, Inc., No. 5:10-CV-547-FL, 2011 WL 1770434, at *10 (citing McAllister v. Ha, 496 S.E.2d 577, 582-83 (N.C. 1998) (citations omitted)).
The latter will not be addressed because Plaintiffs have since voluntarily dismissed Hewett. [DE-89].
Here, Plaintiffs contend that Bowling, Melvin, and Benton “negligently caused physical injury and death to Benbow when they negligently ‘Pitted' Benbow's car, causing it to flip multiple times into oncoming traffic and killing him,” then “ignored” Benbow at the accident scene. Am. Compl. [DE-66] ¶ 126. Plaintiffs further assert that Bowling, Melvin, and Benton “acted with deliberate indifference to the death of [Plaintiff LaSalle's] son and the severe emotional distress it caused.” Id. ¶ 127. According to Plaintiffs, this deliberate indifference is allegedly exemplified by the officers' pre and post-collision conduct, as well as the fact that “within days of Benbow's death, members of the DEU named their new drug dog ‘Duke,” ... the nickname [LaSalle] gave [Benbow] as a child and the name everyone else, including the Defendants, called him.” Id. Additionally, Plaintiffs assert that “BCSO deputies refused to allow [LaSalle] to see her son at the hospital”; while LaSalle waited outside of the hospital, “someone turned off the outside lights, leaving her and her family in total darkness”; a “deputy was heard over the hospital intercom referring to [LaSalle's] family as ‘those people'” who were waiting to see Benbow; and a “female deputy” informed LaSalle that she would be able to see Benbow on Monday, July 11, but when LaSalle returned on that date, “hospital staff told her an ambulance had already transported her son to Greenville, North Carolina, for an autopsy. It was almost three months from when Defendants killed her son before Ms. LaSalle finally saw him.” Id. ¶ 128. As a result of these incidents, LaSalle allegedly “suffered severe emotional distress, including but not limited to extreme anguish, fright, nervousness, sleeplessness, nightmares, grief, anxiety, worry, shock, devastation, and despair.” Id. ¶ 129.
Bowling, Melvin, and Benton argue that Plaintiffs have failed to establish the second element of an NIED claim: foreseeability. Defs.' Mem. [DE-73] at 17. To determine whether the plaintiffs injury was a foreseeable result of the defendant's negligence, a court must consider three factors: (1) the plaintiffs proximity to the negligent act; (2) the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned; and (3) whether the plaintiff personally observed the negligent act. DeRose for Estate of DeRose v. DoorDash, Inc., 675 F.Supp.3d 591, 603-04 (E.D. N.C. 2023) (citing Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990)).
In the instant case, LaSalle does not assert that she was close in proximity to the scene of Benbow's accident or that she witnessed the wreck; instead, she solely relies on the second factor, that Benbow was her son. See Am. Compl. [DE-66] ¶¶ 124-32. While significant, the parent- child relationship is, alone, insufficient to establish foreseeability for NIED purposes where nothing suggests that the defendants knew of the plaintiff s existence “beyond a general knowledge that individuals have parents.” DeRose, 675 F.Supp.3d at 604 (citing Andresen v. Baccus, 439 S.E.2d 136,140 (N.C. 1994)). Here, Plaintiffs have not alleged that Bowling, Melvin, and Benton knew LaSalle, or knew Benbow outside of his history with law enforcement. See Id. (finding no plausible NIED claim where the plaintiff parents were in New Mexico when their son's accident occurred, arrived several hours after the accident, did not see their son in the condition that he was found in at the accident scene but instead saw him wrapped in bandages in the hospital after his initial surgery, and only generally alleged emotional harm). Accordingly, Plaintiffs have failed to state a claim for NIED, and Count VIII should be dismissed.
4. Davies Official Capacity Claims
Plaintiffs assert official capacity claims under § 1983 against Ingram and Davies. Am. Compl. [DE-66] ¶¶ 8-9. Defendants argue that the court should dismiss the official capacity claims against Davies, as they are redundant. Defs.' Mem. [DE-73] at 24-25.
A plaintiffs claim against a government official in his official capacity is treated as a claim against the government entity of which the official is an agent. Jones v. Houston, No. 4:08-CV-121-F, 2010 WL 3835147, at *6 (E.D. N.C. Sep. 28, 2010) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”)). Thus, where a plaintiff asserts multiple official capacity claims against defendants who are agents of the same government entity, the plaintiff effectively names the same defendant twice. See White v. White, No. 5:19-CV-467-BO, 2021 WL 2345352, at *2 (E.D. N.C. June 8, 2021) (dismissing official capacity claims against two sheriffs deputies as “duplicative” where the former sheriff was named in his official capacity). Such is the case here, where Plaintiffs have named both Ingram and Davies in their official capacities, and both defendants are agents of the Brunswick County Sheriff's Office. See Id. Accordingly, the extraneous official capacity claims against Davies should be dismissed.
III. Conclusion
For the reasons]stated herein, it is recommended that Hewett's motion to dismiss all claims against him, [DE-69], be denied as moot; and the BCSO Defendants' motion to partially dismiss the amended complaint, [DE-72], be allowed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. You shall have until Wednesday, May 22, 2024, 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. ', If you do not file written objections to the Memorandum and Recommendation (M&R) by the foregoing deadline, you will be giving up the right to review of the M&R by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the M&R without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order; or judgment of the presiding district judge based on the M&R. See Wright v. Collins, 766 F.2d 841,846-47 (4th Cir. 1985).