Opinion
1:17CV964
06-12-2024
ROBERT LEWIS Plaintiff, v. HOKE COUNTY, et al. Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
This matter is before the court on four motions. First, Plaintiff Robert Lewis has filed a motion concerning effectuating service on all unserved defendants. (See Docket Entry 13.) Second, Plaintiff has filed a motion regarding photocopies of court filings. (See Docket Entry 20.) Third, he has filed a motion to amend his Complaint. (See Docket Entry 21.) Fourth, Defendants Hoke County, Sheriff Hubert Peterkin, and Deputy Timothy Kavanaugh (“Moving Defendants”) have filed a motion to dismiss Plaintiff's claims and an accompanying memorandum. (See Docket Entries 14, 15.) All motions are now ripe and ready for review. For the following reasons, the undersigned will grant in part, deny in part Plaintiff's service-related motion (Docket Entry 13), deny Plaintiff's motion for copies (Docket Entry 20), deny Plaintiff's motion to amend his Complaint (Docket Entry 21), and recommend granting in part, denying in part Moving Defendant's motion to dismiss (Docket Entry 14).
I. Background
A. State Court Proceedings
In September 2014, an armed man dressed in dark clothing with a blue cloth over his face robbed three discount stores in Hoke County, NC. See State v. Lewis. 372 N.C. 576, 577 (2019).After the first robbery, a witness saw the gunman leave in a dark blue Nissan Titan. Id. In all three robberies, the gunman ordered store employees to wait in the store's bathroom while he fled. Id.
While ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, on a motion to dismiss, a narrow exception provides that courts may take judicial notice of “relevant facts obtained from the public record” without converting the motion into one for summary judgment, provided these facts “are construed in the light most favorable to the plaintiff along with the well-pleaded allegations of the complaint.... In particular, federal courts may take notice of proceedings in other courts “if those proceedings have a direct relation to matters at issue. In re Hunter, 610 B.R. 479, 491 (Bankr. M.D. N.C. 2019) (quoting Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds ly Reed v. Town of Gilbert, U.S.-----, 135 S.Ct. 2218 (2015)) (also quoting Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)). A court may only judicially notice a fact “that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Here, for the purpose of describing the undisputed facts surrounding the alleged violations and “for the limited purpose of establishing the judicial acts themselves[,]” the undersigned takes judicial notice of State v. Lewis, 259 N.C.App. 366, 370 (2018), review allowed, writ allowed, 371 N.C. 786 (2018), and aff'd in part, rev'd in part and remanded, 372 N.C. 576 (2019) (“Lewis I”) and State v. Lewis. 372 N.C. 576 (2019) (“Lewis II”). See Hunter, 610 B.R. at 492; see also Tuggle v. Washington Cnty., Virginia, No. 7:21-CV-00215, 2021 WL 1574417, at *2 (W.D. Va. Apr. 21, 2021) (taking judicial notice of a plaintiff's state court proceedings); see Fed.R.Evid. 201(b)(2) (permitting a federal court to take judicial notice of certain facts). Accordingly, all facts cited in this opinion and recommendation from Lewis I and Lewis II directly relate to the issue before the Court and are undisputed. Any disputed facts are noted as such.
The next month, on October 19, 2014, a similar robbery occurred at a Sweepstakes store in neighboring Johnston County. See id. This time, as the suspect fled in a dark gray Kia Optima, a Smithfield police officer recognized him from a prior incident as Robert Dwayne Lewis. See id. at 577-578. The address associated with the Kia's registration was 7085 Laurinburg Road, Raeford, NC. Id. at 578. In response, Smithfield police issued an arrest warrant for Mr. Lewis. Lewis I, 259 N.C.App. At 367.
Unless otherwise noted, all citations concerning documents filed in the instant action refer to the page numbers at the bottom right-hand corner of the documents as they appear in the Court's CM/ECF system.
That same day, Deputy Tim Kavanaugh, an officer with the Hoke County Sheriff's Office, visited the Laurinburg Road address. Lewis II, 372 N.C. at 578. While he observed a blue Nissan Titan in the front yard, he did not see a Kia Optima. Id. Later that day, Deputy Kavanaugh drove past the home again, and this time, he saw a dark gray Kia Optima parked in the yard next to the house. Id. Deputy Kavanaugh parked across the street and watched the house. Id. A while later, he observed a man leave the house and walk across the street to retrieve his mail. Id. When Deputy Kavanaugh asked the man his name, he identified himself as Robert Lewis. Id. Deputy Kavanaugh put Mr. Lewis under arrest and allegedly placed him in the back of his police car. Id.
While Mr. Lewis waited in the police car, Deputy Kavanaugh spoke with Lewis's stepfather, Wendell McCollum, on the front doorstep of the home. Id. Mr. McCollum told Deputy Kavanaugh that he owned the Nissan Titan, and Mr. Lewis, who lived at the residence, owned the Kia Optima but also occasionally drove the Titan. Id. at 578, 581. Kavanaugh then walked over to the Kia parked in the yard, where he claims he observed some dark clothing in the backseat and a BB&T money bag on the passenger floor. Id. at 578-79. Plaintiff alleges that soon thereafter, law enforcement began to search the property, including both cars and the home. (Docket Entries 2 at 5-7; 6 at 1-3.)
Later that day, Hoke County Sheriff's Detective William Tart prepared a search warrant to search the Laurinburg Road home, the Nissan Titan, and the Kia Optima. Lewis II, 372 N.C. at 579. A sworn affidavit was attached to the warrant that described the three Hoke County robberies and the Johnston County robbery. Id.
The affidavit noted the similarities between the four robberies as to both the clothing worn by the robber and the manner in which the crimes were carried out. The affidavit also stated that Smithfield police officers had identified defendant as the perpetrator of the 19 October 2014 robbery and that he had been arrested at the 7085 Laurinburg Road residence. The affidavit, however, failed to (1) disclose that defendant lived at 7085 Laurinburg Road, (2) contain any other information linking [Mr. Lewis] to that address, (3) describe the circumstances surrounding his arrest at that address, or (4) mention Deputy Kavanaugh's interactions with Mr. Lewis or his stepfather.... The affidavit did not mention the fact that Deputy Kavanaugh had also seen a Kia Optima parked in front of the residence. Nor did it relate that the deputy had seen potentially incriminating evidence upon looking into the window of the Kia Optima.
An unsworn attachment to the search warrant application listed a “dark blue Nissan Titan pick-up truck” and a “gray 2013 Kia Optima EX four door car” among the property to be searched by law enforcement officers if the warrant was issued. This attachment also contained registration information and a VIN number for each vehicle. Based upon the information provided in Detective Tart's affidavit, a magistrate issued a search warrant for the 7085 Laurinburg Road residence, the Nissan Titan, and the Kia Optima.
Detective Tart executed the search warrant on 19 October 2014. He seized various items of evidence that were located inside the Kia Optima. These items included the BB&T bank bag that Deputy Kavanaugh had previously viewed through the window of the vehicle, which contained receipts and other documents connected to the Smithfield robbery. Detective Tart also seized a blue helmet liner that was consistent with the face covering worn by the suspect and a rusty handgun from the Kia.
On 21 September 2015, defendant was indicted by a Hoke County grand jury on three counts of robbery with a dangerous weapon, five counts of second-degree kidnapping, and one count of attempted robbery with a dangerous weapon. He was indicted on 5 October 2015 by a Johnston County grand jury on charges of robbery with a dangerous weapon and two counts of second-degree kidnapping. A second Johnston County grand jury subsequently indicted him on 2 November 2015 for common law robbery.
On 2 March 2016, defendant filed motions to suppress in both the Superior Court, Hoke County and the Superior Court, Johnston County in which he sought to exclude evidence obtained during the execution of the search warrant by Detective Tart. In his motion, he argued that the evidence should be suppressed on the grounds that (1) an “insufficient connection” existed “between the items sought and property to be searched,” and (2) the search of the Kia Optima was not permissible under the plain view doctrine.Id. at 579-80. Both the Hoke County and Johnson County trial courts denied the respective motions to suppress. Id. at 581. In both cases, Mr. Lewis preserved his right to appeal the motion, entered an Alford plea, and timely appealed the motions to suppress. Id.
In May 2018, the NC Court of Appeals ruled that Detective Tart's affidavit was insufficient to establish probable cause to search the Laurinburg Road residence, in part because the search warrant did not state that Mr. Lewis lived at the Laurinburg Road home or note any connection between Mr. Lewis and the home. Id. at 582. However, the NC Court of Appeals held that probable cause existed to search the Nissan Titan and Kia Optima, and thus the search warrant for the cars was lawful. Id. at 590.
Both parties filed petitions for discretionary review, which the NC Supreme Court granted. Id. at 583. In August 2019, the NC Supreme Court affirmed the Court of Appeals ruling regarding the seizure of evidence from the Laurinburg Road address and reversed the ruling regarding whether probable cause had been established to issue the search warrant for the Kia Optima. Id. at 589-90. The case was then remanded to determine “whether the evidence seized from the Kia Optima was admissible under the plain view doctrine.” Id. at 590. On remand, the Court of Appeals held that the search of the Kia Optima was not permissible under the plain view doctrine because the car was parked in the yard about 20 feet from the front porch, which was outside the permissible scope of search under the “knock and talk” doctrine. State v. Lewis, 268 N.C.App. 325 (2019). Consequently, in November 2019, the Court of Appeals “vacated the trial courts' judgments and remand[ed] for further proceedings.” Id. According to Moving Defendants, the trial court then dismissed the Hoke County charges. (See Docket Entry 38 at 1.)
B. Federal Court Proceedings
In October 2017, Mr. Lewis (hereinafter “Plaintiff”) filed a motion to proceed in forma pauperis (“IFP”) and a Complaint with this Court pursuant to 42 U.S.C. § 1983, which the Court granted. (See Docket Entries 1, 2, 4.) He also filed a “Motion for Leave to File an Amended Complaint,” which the Court also granted. (See Docket Entries 5, 6, 8.)
In his Complaint and Amended Complaint, Plaintiff claims that his constitutional rights were violated during his arrest and the search of his home and cars. (See generally Docket Entry 2, 9.) First, Plaintiff claims that Deputy Kavanaugh “never told [him] what crimes he was being arrested for nor did he ever say what Police Department issued the warrant.” (Docket Entry 2 at 5, 8.) He also alleges that he was not served with the Johnston County warrant for four months after his arrest. (Id. at 7.) Plaintiff believes that these failures violated his “right to know that a valid arrest has been made against his person.” (Id. at 8.) Second, he asserts a claim for “false confinement” because he was forced to sit in the backseat of Deputy Kavanaugh's car during the search, during which time he became disoriented, and required medical attention. (Id. at 6-7.)
Third, he claims that the search of his home violated the Fourth Amendment. (Id. at 8.) He asserts that law enforcement illegally searched the house by claiming they were performing a “security sweep to allow [Plaintiff] to enter and use the restroom” and “to search for other occupants.” (Id. at 5-8; see also Docket Entry 6 at 2.).) However, even after Defendant left the home, he claims that law enforcement continued to search the home a total of 8.5 hours before a search warrant arrived. (Docket Entry 2 at 7; see also Docket Entry 6 at 2-3.) He further claims that law enforcement also prohibited family members from entering the home. (Docket Entry 2 at 6.)
Fourth, Plaintiff brings a failure to train or supervise claim against Hoke County and Sheriff Peterkin. (See id. at 8.) He states that the “unlawful accounts” contained in the police report evidence “deliberate indifference to the need for more or different training ....” (Id. at 8.)
Plaintiff requests compensatory damages in the following amounts:
$100,00 jointly and severally against defendants Kavanaugh, Morant, Rugg and Stanley for the warrantless entry onto private
property to facilitate an unlawful security sweep on Plaintiffs home invading his privacy[;]
$100,000, jointly and severally against defendants for participating in the unlawful warrantless 8A hour seizure of Plaintiffs residence and premises[;]
$100,000, against Defendant Kavanaugh for false arrest and false imprisonment[.](Id. at 10.) He also requests punitive damages in the following amounts:
$50,000, each separately against defendants for reckless indifference to federally and constitutionally protected rights, due to successive and unlawful warrantless seizures of Plaintiffs residence and premises[;]
$250,000 jointly and severally against defendants for Trespass[.](Id. at 10.) Plaintiff later amended his Complaint. (See Docket Entry 9.) Notably, his only alleged injury is that he “became so sick and disoriented that officers had to call an ambulance for him during his period of false and unreasonable confinement pursuant to a warrant never served or proven to exist by the arresting officers.” (Docket Entry 2 at 9.)
This is the only mention of a trespass claim in the Complaint and Amended Complaint. In the event that Plaintiff is attempting to raise a state-law claim for trespass, he has not alleged sufficient facts to assert a claim. “A North Carolina trespass claim has three elements: (1) possession of the property by plaintiff when the alleged trespass was committed; (2) an unauthorized entry by defendant; and (3) damage to plaintiff.” White v. City of Greensboro, 532 F.Supp.3d 277, 312 (M.D. N.C. 2021), on reconsideration in part, 586 F.Supp.3d 466 (M.D. N.C. 2022) (internal citation and quotation omitted). As discussed below, Plaintiff has not claimed any damages from the alleged trespass. Accordingly, any potential trespass claim would fail. Additionally, a trespass claim does not implicate any constitutional violation, and thus cannot be brought pursuant to § 1983. See Fuller v. Lingle, No. 1:21CV261, 2021 WL 11421446, at *3 (M.D. N.C. May 21, 2021), report and recommendation adopted, No. 1:21CV261, 2021 WL 11421442 (M.D. N.C. July 6, 2021), aff'd sub nom. Parkin v. Baldwin, No. 22-2303, 2023 WL 4787454 (4th Cir. July 27, 2023) (“Plaintiff has only alleged that this Defendant committed trespass, which does not implicate constitutional or federal rights. Trespass, while actionable under state law, does not in and of itself constitute a constitutional violation, even when the trespass is committed by a governmental actor.”) (internal citation and quotation omitted); see also Cummings v. Rahmati, No. 1:17CV196, 2017 WL 1194364, at *3 (M.D. N.C. Mar. 30, 2017) (“Section 1983 provides no remedy for common law torts.”). Therefore, Plaintiff has not stated a claim for relief under § 1983.
Summons were issued and returned executed for Hoke County, Deputy Timothy Kavanaugh, and Sheriff Hubert Peterkin. (See Docket Entries 10, 19.) Summons were issued and returned unexecuted for Hoke County Sheriff's Office employees Timothy Rugg, Samuel Morant, and Stanley Davis. (See Docket Entries 10, 12.) In July 2018, Plaintiff filed a motion requesting “the Court to order the Hoke County Sheriff's Office to reveal to the Court the name and address of all defendant(s) who have not yet been served with notice of the complaint ....” (Docket Entry 13 at 1.) He also filed a motion requesting that “the U.S. Clerk of Court's Office assist him by serving copies of all motions, responses, replys [sic], filings etc. filed on his behalf in the above civil action upon the Defendants [and] send Plaintiff Robert Lewis file stamped copies of all filings submitted in this matter on his behalf for records keeping.” (Docket Entry 20 at 1.) Additionally, Plaintiff filed a motion to amend his Complaint. (See Docket Entry 21.) In July 2018, Defendants Hoke County, Kavanaugh, and Peterkin filed a motion to dismiss for failure to state a claim. (Docket Entry 14.)
Then, in December 2018, this Court stayed the matter pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), pending resolution of Plaintiff's “state criminal matter at the North Carolina Supreme Court so that the Court and the parties can take that final ruling into consideration in determining whether the Heck doctrine may bar some or all of Petitioners claims and proposed claims.” (See Text Order dated 12/20/2018.) Over the next few years, the undersigned periodically ordered status reports to update the Court on Plaintiff's state criminal matter. (See Text Orders dated 12/16/2021 and 01/18/2022.) Finally, in May 2024, the Court held a hearing during which Defendants represented that the Hoke County criminal matter had been dismissed, and thus they no longer maintained that the stay should remain in place. (See Docket Entry 43; see also Docket Entry 37 at 1.)
Under Heck,
“If a plaintiff files a . . . claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.... If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.Wallace v. Kato, 549 U.S. 384, 393-94 (2007).
Based on the oral representations made by the parties at the hearing on May 21, 2024, and the supplemental status reports filed by both parties, the undersigned finds that the state criminal matter has been resolved and, in accordance with Heck, a stay in the matter is no longer appropriate. (See id.; see also Docket Entries 38, 42.) Therefore, the Court lifts the stay and will now consider all pending motions.
II. Discussion
A. Motion Requesting Names and Addresses
Plaintiff has filed a motion requesting that the names and addresses “of all defendant(s) who have not yet been served with notice of the complaint.” (See Docket Entry 13.) In June 2018, the undersigned instructed Plaintiff to complete a “summons for each defendant, including an address suitable for service, and then return the summons(es) to the Clerk.” (Docket Entry 8 at 3.) Additionally, at that time, Plaintiff was warned that “[f]ailure to provide an address wherein service may be made on any defendant will result in the dismissal of the action as to all unserved defendants after 90 days from the filing of the complaint” pursuant to Fed.R.Civ.P. 4(m). (Id.) Currently, there are three named Defendants-Timothy Rugg, Samuel Morant, and Stanley Davis-and five John Doe Defendants who have not been properly served. (See Docket Entry 2 at 1-3.) Plaintiff completed summonses for Defendants Rugg, Morant, and Davis, which were issued by the clerk and returned unexecuted, but it does not appear that Plaintiff completed summonses for the five John Doe Defendants. (See Docket Entries 10, 12.)
As to the three named Defendants who remain unserved, pursuant to 28 U.S.C. §1915(d), the Court “remains under a duty to assist Plaintiff with regard to service of process in view of his pro se status and the granting of leave to proceed in forma pauperis.” Kaminsky v. Wake Forest Univ. Baptist Med. Ctr., No. 1:08CV882, 2009 WL 3208449, at *5 (M.D. N.C. Sept. 30, 2009). In fulfilling that duty, this Court has occasionally sought the assistance of counsel for served defendants before the court in obtaining addresses for unserved defendants upon a pro se plaintiff's request. See, e.g., Tunstall v. Perry, No. 1:15CV226, 2016 WL 4133537, at *5 (M.D. N.C. Aug. 3, 2016) (collecting cases). However, it is the plaintiff's responsibility to provide enough information so that the U.S. Marshals Service can identify and effect service on the proper individual or entity. Castro v. Cusack, No. 15CV6714ENVLB, 2019 WL 4361049, at *5 (E.D.N.Y. Feb. 19, 2019), report and recommendation adopted, No. 15CV6714ENVLB, 2019 WL 3385218 (E.D.N.Y. July 26, 2019) (citing Ruddock v. Reno, 104 Fed.Appx. 204, 207 (2d Cir. 2004) (explaining that a litigant must provide “information necessary to identify the defendant”). The U.S. Marshals Service cannot be expected to serve a John Doe defendant for whom the plaintiff has not provided sufficient identifying information. See Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990) (“The Marshal needs from the prisoner information sufficient to identify the guard (‘John Doe No. 23' won't do).”); see also Duncan v. Pendergrass, No. 1:19CV459, 2021 WL 11430607, at *2 (M.D. N.C. Apr. 13, 2021), report and recommendation adopted, No. 1:19-CV-459, 2021 WL 11430624 (M.D. N.C. May 20, 2021).
Therefore, the Court instructs counsel for Defendants Hoke County, Peterkin, and Kavanaugh to make a good faith effort to obtain the last known addresses of Defendants Rugg, Morant, and Davis, who purportedly are employees of the Hoke County Sheriff's Office, and “if able, to file that information, under seal, with the Court for service of process purposes only.” Tunstall, 2016 WL 4133537, at *5. “To the extent the information requested is not obtained, counsel should file a statement under seal with the Court explaining counsel's efforts to locate the information.” McClary v. Bullock, No. 1:19CV23, 2020 WL 57999, at *3 (M.D. N.C. Jan. 6, 2020), report and recommendation adopted, No. 1:19-CV-23, 2020 WL 586673 (M.D. N.C. Feb. 6, 2020).
The Court declines to provide further assistance to Plaintiff in determining the identities and obtaining addresses for the other five John Doe Defendants, as he has not yet provided sufficient identifying information for them. Because John Does 1-5 have not yet been served and the time for doing so has long passed, the undersigned will recommend that the five John Doe Defendants be dismissed from this action.
B. Motion Regarding Photocopies
Plaintiff has also filed a motion requesting that the Court provide Defendants' attorney with all court filings and provide Plaintiff with photocopies of all court filings. (See Docket Entry 20.) As to Plaintiff's request that Defendants' attorney receive all court filings, all documents filed with the court are uploaded to the court filing system, CM/ECF, to which Defendants' attorney has access. See Murray v. N. Carolina Dep't of Pub. Safety, No. 1:14CV985, 2014 WL 12651234, at *1 n.1 (M.D. N.C. Dec. 8, 2014) (“[A]ll parties and attorneys of record receive one free electronic copy of documents filed with the court if they are registered with the court's CM/ECF system. If not, a party will receive a copy of all orders and filed documents via mail.”). Thus, there is no need for the Court or either party to take any additional action in this matter.
Regarding Plaintiff's request for photocopies, a “[p]laintiff possesses a statutory remedy against prison officials under 42 U.S.C. § 1983, if their photocopying policies violate his federal constitutional right of access to the courts.” Haizlip v. Alston, No. 1:14CV770, 2015 WL 8668230, at *2 (M.D. N.C. Dec. 11, 2015) (citing Lewis v. Casey, 518 U.S. 343 (1996)).
In order to state a constitutional claim of denial of access to the courts a plaintiff must allege specific injury resulting from the alleged denial. The right of access to the courts is intended to permit inmates to litigate post-conviction legal issues Where an inmate has had access to court, but claims that officials denied him some item necessary for meaningful pursuit of his litigation, the inmate must allege facts showing that denial of the item hindered his efforts to pursue a legal claim and must show either that he was unable to file or his filing was so technically deficient that it was dismissed without consideration of the merits.Smith v. Perry, No. 1:16CV396, 2019 WL 7403869, at *9 (M.D. N.C. Oct. 4, 2019), report and recommendation adopted, No. 1:16CV396, 2020 WL 32997 (M.D. N.C. Jan. 2, 2020).
Upon consideration of Plaintiff's request, the undersigned finds that any alleged deprivation of photocopies has not meaningfully prohibited Plaintiff's access to the courts. Plaintiff has not asserted how being deprived of photocopies has injured him. In fact, Plaintiff has filed all necessary and appropriate documentation regarding the instant action. Therefore, the undersigned will deny Plaintiff's motion regarding photocopies. (See Docket Entry 20.)
C. Motion to Dismiss
Defendants Hoke County, Peterkin, and Kavanaugh move the Court to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Docket Entry 14 at 1.) A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (1999). A complaint that does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” must be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct.” Id.; see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (“On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.”) (citations and quotations omitted). 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, and bare assertions devoid of factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009) (citations omitted). In other words, the standard requires a plaintiff to articulate facts, that, when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009) (quoting Iqbal, 556 U.S. at 678, and Twombly, 550 U.S. at 557).
Pro se complaints are to be liberally construed in assessing sufficiency under the Federal Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this liberal construction, “generosity is not fantasy,” and the court is not expected to plead a plaintiff's claim for him. Bender v. Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir.1998); see also Sierra v. Hassan, No. 1:13CV29, 2014 WL 204215, at *1 (M.D. N.C. Jan. 17, 2014), report and recommendation adopted, No. 1:13CV29, 2014 WL 975517 (M.D. N.C. Mar. 12, 2014), aff'd, 579 Fed.Appx. 211 (4th Cir. 2014).
1. Hoke County
Here, Moving Defendants raise several arguments to support dismissal of Plaintiff's claims.First, they assert that Hoke County is not an entity that can be sued. (Docket Entry 15 at 5-9.) “State law dictates whether a governmental agency has the capacity to be sued in federal court.” Efird v. Riley, 342 F.Supp.2d 413, 419-20 (M.D. N.C. 2004) (citing Avery v. Burke, 660 F.2d 111, 113-14 (4th Cir. 1981)). In North Carolina, a county is a legal entity that may be sued. See N.C. Gen. Stat. § 153A-11. “However, there is no corresponding statute authorizing suit against a North Carolina county's sheriff department.” Parker v. Bladen Cnty., 583 F.Supp.2d 736, 740 (E.D. N.C. 2008). Therefore, a sheriff's office is not a legal entity that can be sued under North Carolina law. Hargett v. Forsyth Cnty. Sheriff's Office, No. 1:03CV440, 2005 WL 4542859, at *2 (M.D. N.C. Sept. 29, 2005), aff'd, 172 Fed.Appx. 27 (4th Cir. 2006); see White v. Vance Cnty., N. Carolina, No. 5:19-CV-467-BO, 2020 WL 943893, at *2 (E.D. N.C. Feb. 26, 2020) (unpublished) (dismissing claims against county sheriff's office that “lacks the legal capacity to be sued”); Bettis v. Madison Cnty. Sheriff's Dep't, No. 1:10-CV-69, 2012 WL 161250, at *2 (W.D. N.C. Jan. 19, 2012) (unpublished) (finding that the plaintiff “fail[ed] to present any authority indicating that the [county's sheriff's office] is an entity with the capacity to be sued”); Cooper v. Brunswick Cnty. Sheriff's Dep't., No. 7:10CV14, 2011 WL 738610, *4 (E.D. N.C. Feb. 7, 2011) (unpublished) (noting that “numerous cases have held that sheriff's departments lack the capacity to be sued in the federal courts of this state”); see also Mobley v. Guilford Cnty. Sheriff's Off., No. 1:17CV115, 2017 WL 1409579, at *3 (M.D. N.C. Apr. 20, 2017) (unpublished) (finding that the county sheriff's office and various subdivisions are not subject to suit under § 1983).
In addition to the arguments discussed above, Moving Defendants also asserted in their motion to dismiss that Plaintiff's claims are barred by Heck because of the then-pending state court matters. (See Docket Entry 15 at 9-11.) However, as noted above, during the hearing held on May 21, 2024, Moving Defendants indicated that the state court proceedings were resolved, and no further action was anticipated in the state court case against Plaintiff, thus the claims were no longer barred under Heck. (See generally Docket Entry 43.)
Moreover, under North Carolina law, deputy sheriffs are considered employees of the sheriff, not the county, such that the county is without liability for their conduct. See Clark v. Burke Cnty., 117 N.C.App. 85, 89, 450 S.E.2d 747, 749 (1994) (noting that since sheriff's personnel are employed by the sheriff, not the county, injuries resulting from their actions “cannot result in liability” for the county); see also Little v. Smith, 114 F.Supp.2d 437, 446 (W.D. N.C. 2000) (county cannot be sued for sheriff's deputies' alleged use of excessive force). Indeed, “the sheriff has the sole statutory responsibility for the care and custody of the inmates at the county jail.” Vaught v. Ingram, No. 5:10-CT-3009-FL, 2011 WL 761482 at *4 (E.D. N.C. Feb. 24, 2011) (unpublished) (citing N.C. Gen. Stat. § 162-22). “This authority may not be delegated to another person or entity.” Id. (citing N.C. Gen. Stat. § 162-24).
Here, while Plaintiff names Hoke County as a defendant, Plaintiff has only made allegations that implicate Hoke County Sheriff's Office. Thus, Hoke County is not the proper party to bring suit against. Hines v. Johnson, 2020 WL 151639 No. 1:19CV515 2020 WL 1516397, at *4 (M.D. N.C. Mar. 30, 2020); see also Bowman v. Reid, No. 5:14CV179-RLV, 2015 WL 4508648, at *3 (W.D. N.C. July 24, 2015) (unpublished) (collecting cases) (“The harms that Plaintiffs allege were done to them were done exclusively by the Sheriff and his deputies, not by [defendant] County.”), aff'd sub nom. Gosnell v. Catawba Cty., 646 Fed.Appx. 318 (4th Cir. 2016); Stephney, Jr. v. Columbus Cty., No. 5:05-CT-606-FL, 2006 WL 4664318, at *1 (E.D. N.C. Aug. 22, 2006) (unpublished) (county defendant not a proper party to §1983 action alleging inmate assault at county detention center), aff'd sub nom. Stephney v. Columbus Cty., 210 Fed.Appx. 289 (4th Cir. 2006); Woodside v. Iredell Cty., No. 5:04 CV 95 V, 2006 WL 1582391, at *2 (W.D. N.C. June 2, 2006) (unpublished) (“North Carolina law appears to preclude county liability for most actions of sheriff's department personnel. In other words, North Carolina law draws a distinction between a sheriff and the county in which he works, and the respective liability of each for the alleged misconduct of individual deputies or jailers.”). Since Hoke County does not have final policy making authority over the employees of the Hoke County Sheriff's Office, Hoke County cannot be held liable under an official capacity claim for the acts of the Sheriff's Department's employees. Cranford v. Frick, No. 1:05CV00062, 2007 WL 676687, at *8 (M.D. N.C. Feb. 28, 2007). For these reasons, Hoke County is entitled to dismissal as a matter of law.
2. Sheriff Peterkin
a. Individual Capacity
Moving Defendants argue that Plaintiff has not alleged any individual action by Sheriff Peterkin, and thus the claim against him in his individual capacity fail as a matter of law. (See Docket Entry 15 at 11-12.) “To succeed on a § 1983 claim, ‘it must be affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.'” Lowery v. Forsyth Cnty. Sheriff's Dep't, No. 1:20-CV-888, 2022 WL 939651, at *5 (M.D. N.C. Mar. 29, 2022) (citing Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (internal quotation marks omitted)). “As a general matter, a state actor may incur individual Section 1983 liability only through affirmative misconduct.” McAllister v. Wellpath Health Care, No. 1:19CV1034, 2022 WL 3586019, at *15 (M.D. N.C. Aug. 22, 2022) (citing Randall v. Prince George's Cnty., 302 F.3d 188, 202 (4th Cir. 2002)). Here, Plaintiff does not allege any individual action by Sheriff Peterkin, and thus any individual capacity claims against him fail as a matter of law.
b. Official Capacity
Next, Defendants assert that any failure-to-train or supervise claims against Sheriff Peterkin fail because Plaintiff has not alleged sufficient facts to raise an official liability claim. (See Docket Entry 15 at 13-14.) To bring an official capacity claim, a “plaintiff must plead (1) the existence of an official policy or custom; (2) that the policy or custom is fairly attributable to the municipality; and (3) that the policy or custom proximately caused the deprivation of a constitutional right.” Pettitford v. City of Greensboro, 556 F.Supp.2d 512, 530 (M.D. N.C. 2008). Failure to allege an official custom or policy alone provides a sufficient basis to grant a motion to dismiss or a motion for judgment on the pleadings. Roseboro v. Winston-Salem/Forsyth Cnty. School Bd. of Educ., No. 1:14-CV-455, 2014 WL 5304981, at * 4 (M.D. N.C. Oct. 15, 2014) (dismissing a Monell claim where the plaintiffs failed to allege a policy or custom of the defendant county school board).
For Monell claims based upon a failure to train or supervise, “[a] plaintiff must point to a persistent and widespread practice of municipal officials, the duration and frequency of which indicate that policymakers (1) had actual or constructive knowledge of the conduct, and (2) failed to correct it due to their deliberate indifference.” Owens v. Baltimore City State's Att'ys Off., 767 F.3d 379, 402 (4th Cir. 2014) (internal quotations and brackets omitted). Thus, there must be allegations of “continued inaction in the face of documented widespread abuses,” Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999) (citation omitted), such as through “the existence of reported and unreported cases and numerous successful motions which, if true, would buttress [a] legal conclusion.” Owens, 767 F.3d at 403; see also Rodgers v. Town of China Grove, No. 1:22CV518, 2023 WL 8021513, at *5 (M.D. N.C. Nov. 20, 2023).
Here, Plaintiff has not pled any facts to support his claim that Sheriff Peterkin failed to train or supervise his employees or that there was a custom or policy in place that deprived Plaintiff of his constitutional rights. Instead, Plaintiff merely states in a conclusory fashion that law enforcement was not “adequately supervised and well-trained,” and their actions were deliberately indifferent. (See Docket Entry 2 at 8.) Based on the absence of facts to support his claim, the undersigned recommends dismissing any official capacity claims against Sheriff Peterkin. Having found that no individual or official capacity claims have been plausibly alleged against Sheriff Peterkin, the undersigned recommends dismissal of Sheriff Peterkin from the action.
3. Qualified Immunity
Defendant Kavanaugh asserts that he is entitled to qualified immunity. (See Docket Entry 15 at 15-20.) Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 801 (1982); see also Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006) (“Qualified immunity shields government officials performing discretionary functions from personal-capacity liability for civil damages under § 1983[.]” (emphasis added)). “However, a defendant who raises qualified immunity in a 12(b)(6) motion faces a formidable hurdle- because dismissal at this early stage is appropriate only if a plaintiff fails to state a claim that is plausible on its face, the defense is usually not successful.” Rodgers, No. 1:22CV518, 2023 WL 8021513, at *5 (internal quotation marks omitted) (citing Owens, 767 F.3d at 396).
In determining whether qualified immunity attaches to a government official, the traditional two-step inquiry requires a court to determine: “(1) whether the official violated a constitutional right; and if so, (2) whether the right was ‘clearly established' at the time of its violation.” Rock for Life-UMBC v. Hrabowski, 411 Fed.Appx. 541, 546-47 (4th Cir. 2010) (citation omitted). In evaluating qualified immunity, a court initially may determine whether the plaintiff has alleged or shown a violation of a constitutional right at all. See Pearson v. Callahan, 555 U.S. 223 (2009). Further, “[b]ecause qualified immunity is designed to shield officers not only from liability but from the burdens of litigation, its establishment at the pleading or summary judgment stage has been specifically encouraged.” Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). Even where probable cause is lacking, a police officer may nonetheless receive the benefit of qualified immunity if, based upon “an objective assessment of the circumstances, an officer situated as was he reasonably could have believed that there was probable cause to arrest, i.e., to believe that [the plaintiff] had committed criminal offenses.” Sevigny v. Dicksey, 846 F.2d 953, 956 (4th Cir.1988). “This immunity protects law enforcement officers from bad guesses in gray areas and ensures that they are liable only for transgressing bright lines.” Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir. 2001) (citing Wilson v. Collins, 141 F.3d 111, 114 (4th Cir. 1998) (internal quotations omitted)).
Defendant Kavanaugh asserts that he is entitled to qualified immunity for any alleged constitutional violations resulting from Plaintiff's arrest. (Docket Entry 15 ay 18.) “To establish a violation of the Fourth Amendment, Plaintiff must show he was arrested without probable cause. Probable cause is determined from the totality of the circumstances known to the officer at the time of the arrest.” King v. Jefferies, 402 F.Supp.2d 624, 630 (M.D. N.C. 2005) (citing Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002)). “In issuing an arrest warrant, there must not only be probable cause that an offense has been committed, but also probable cause to believe that the person to be arrested has committed it.” United States v. Byers, No. 1:08CR129-1, 2008 WL 3925085, at *4 (M.D. N.C. Aug. 20, 2008), aff'd, 349 Fed.Appx. 840 (4th Cir. 2009).
As part of his claim, Plaintiff alleges that his arrest was unlawful because Defendant Kavanaugh did not tell him during his arrest “what crimes he was being arrested for[,] nor did he ever say what police department issued the warrant.” (Docket Entry 2 at 5.) Plaintiff asserts that Defendant Kavanaugh only told him that there was an “active warrant” for Plaintiff's arrest. (Id.) Even construing this claim as true, there is no constitutional right to being told immediately upon arrest exactly what one is being charged with and what police department issued the warrant. See Scott v. Malone, No. 223CV03532DCCMGB, 2024 WL 1838714, at *4 (D.S.C. Feb. 27, 2024), report and recommendation adopted, No. 2:23-CV-03532-DCC, 2024 WL 1836576 (D.S.C. Apr. 26, 2024) (“[T]he Sixth Amendment imposes no duty on an officer to give notice of the charges against the accused at the time of arrest.” (citation omitted)); see also Holland v. Miller, No. 4:20-cv-227-SAL-KDW, 2020 WL 3549176, at *3 (D.S.C. Feb. 25, 2020) adopted, 2020 WL 3548811 (D.S.C. June 30, 2020) (“[T]here is no constitutional right that the police inform an arrestee of the reasons for their arrest.”).
Here, Plaintiff admits that Deputy Kavanaugh arrested him on “an out of county warrant from Johnston County.” (Docket Entry 2 at 5.) Based on the issuance of the arrest warrant, it was reasonable for Deputy Kavanaugh to surmise that probable cause existed to arrest Plaintiff and the arrest was lawful. See Byers, 2008 WL 3925085, at *5 (“An officer's reliance on an arrest warrant is presumed reasonable except in limited circumstances where the officer could have no reasonable grounds for believing that the warrant was properly issued.”); see also Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998) (“[A] claim for false arrest may be considered only when no arrest warrant has been obtained.”) Therefore, Plaintiff has not asserted sufficient facts to allege that Defendant Kavanaugh violated any clearly established constitutional violation. Accordingly, Defendant Kavanaugh is entitled to qualified immunity for Plaintiff's arrest.
To the extent that Plaintiff is attempting to raise a claim based on his conditions of confinement, such a claim also fails. Because Plaintiff was a pretrial detainee at the time of the events alleged in his Complaint, and to the extent he raises a claim for deliberate indifference related to his conditions of confinement, it would be evaluated “under the Due Process Clause of the Fourteenth Amendment.” Durand v. Charles, No. 1:16CV86, 2016 WL 7495811, at *3 (M.D. N.C. Dec. 30, 2016) (unpublished) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)), report and recommendation adopted, 2017 WL 389108 (M.D. N.C. Jan. 26, 2017) (unpublished). “The due process rights of a pretrial detainee are at least as great as the [E]ighth [A]mendment protections available to the convicted prisoner.” Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). “As a practical matter, the Due Process Clause analysis is materially indistinguishable from the Eighth Amendment analysis.” Adams v. New Hanover Cnty. Det. Ctr., No. 5:16CT3020, 2017 WL 7513347, at *2 (E.D. N.C. June 30, 2017) (unpublished order). Thus, for Plaintiff to establish a prima facie case that his pretrial confinement conditions violate the Due Process Clause, he “must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Id. “The first showing requires the court to determine whether the deprivation of the basic human need was objectively sufficiently serious; and the second showing requires the court to determine whether subjectively the officials acted with a sufficiently culpable state of mind.) Id. (internal quotations omitted). To satisfy the subjective prong, a plaintiff must allege that the official acted with deliberate indifference, meaning that the official actually knows of and disregards an objectively serious condition or risk of harm. Id. “[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs . . . it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeSbaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). Therefore, “Eighth Amendment cases are instructive in analyzing pretrial detainees' claims of deliberate indifference and unconstitutional conditions of confinement.” Aiken v. Hall, No. 1:17CV97, 2017 WL 5985940, at *2 (W.D. N.C. Dec. 1, 2017) (unpublished). Here, Plaintiff asserts he became “disoriented” after being placed in the police car, which is not sufficiently serious to rise to the level of a constitutional violation. Further, he does not state any facts that would show Defendant Kavanaugh acted with deliberate indifference. Thus, to the extent that he is attempting to raise a claim based on his conditions of confinement, he fails to state sufficient facts to raise a plausible claim.
Next, Defendant Kavanaugh also asserts that he is entitled to qualified immunity for any claims arising from the search of Plaintiff's curtilage. (Docket Entry 15 at 18.) “The Fourth Amendment protects homes and the land immediately surrounding and associated with homes, known as curtilage, from unreasonable government intrusions.” Covey v. Assessor of Ohio Cnty., 777 F.3d 186, 192 (4th Cir. 2015) (citation and quotations omitted). “This area around the home is ‘intimately linked to the home, both physically and psychologically,' and is where ‘privacy expectations are most heightened.'” Florida v. Jardines, 569 U.S. 1, 7 (2013) (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). “Because an individual's expectation of privacy is ‘at [its] apex in one's home,' warrantless searches of homes are unconstitutional under the Fourth Amendment absent some type of justification.” Yanez-Marquez v. Lynch, 789 F.3d 434, 464 (4th Cir. 2015) (citing United States v. Gray, 491 F.3d 138, 146 (4th Cir. 2007)); see Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). However, “a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” Jardines, 569 U.S. at 8 (internal quotations and citation omitted); Carpenter v. Perry, No. 2:16-CV-4199, 2017 WL 5617067, at *10 (S.D. W.Va. Nov. 21, 2017) (citation omitted) (“It is well established that police officers without a warrant may permissibly approach a home, knock, and seek consent to enter.”).
“The Due Process Clause of the Fourteenth Amendment levies on state governments the same restrictions that the Fourth Amendment imposes on the federal government.” Walsh v. Gilliam, No. 1:19-CV-00082-MR-WCM, 2020 WL 908897, at *11 (W.D. N.C. Feb. 25, 2020) (citing Mapp v. Ohio, 367 U.S. 643, 654-55 (1961)).
Plaintiff alleges that the search of his home began immediately after his arrest and was part of an “unlawful warrantless security sweep” which Defendant Kavanaugh falsely claimed was to “search for other occupants ....” (Docket Entry 2 at 6, 8.) To satisfy the first step of Saucier at this stage in the litigation, Plaintiff only needs to assert sufficient facts to plausibly allege that the search of the home's curtilage was unlawful. Plaintiff alleges that the search began immediately after his arrest, but “Timothy Ruff and Detective William Tart arrived at Plaintiff's home, 8% hours after his arrest, with a search warrant to officially search and seize his residence.” (See Docket Entry 9 at 2.) Taking the allegations in the light most favorable to Plaintiff, conducting a warrantless “security sweep” for 8.5 hours would clearly violate one's Fourth Amendment rights. See United States v. Watson, 703 F.3d 684, 693 (4th Cir. 2013) (noting that warrantless sweeps may “extend[] only to a cursory inspection of those spaces where a person may be found, and last[] no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises” (internal quotations and citation omitted)). Therefore, based on the facts alleged in the Complaint, it is plausible that the search violated Plaintiff's Fourth Amendment rights.
In Lewis I and II, the state courts found that there was not probable cause to issue the search warrant to search Plaintiff's home and Kia Optima, and thus the search was unlawful. See Lewis I, 259 N.C.App. at 372-373; Lewis II, 372 N.C. at 590. In contrast, here, Plaintiff does not argue that the issuance of the search warrant was unlawful. Instead, he asserts that the search warrant was not issued until 8.5 hours after the search began, and thus the first 8.5 hours of the search were unlawful. (See Docket Entry 9 at 2 (“At 10:20 pm defendant Timothy Rugg and Detective William Tart arrived at Plaintiff's home 8% hours after his arrest, with a search warrant to officially search and seize his residence.”).) Moving Defendants assert that a search warrant was issued “[s]ubsequent to the Plaintiff's arrest” but do not indicate how long after the arrest the search warrant was issued, nor do they make any claims regarding whether the search began prior to the issuance of the warrant. (See Docket Entry 15 at 2-3.) Defendants further state that “[a]s for Deputy Kavanaugh entering the residence . . . there is no contention by the Plaintiff but that he did so pursuant to a facially valid warrant issued by a Hoke County magistrate.” (Docket Entry 15 at 18.) However, in his Amended Complaint, Plaintiff notes several times that the search was “warrantless” and Defendants gained entry to the home by stating they were doing a “security sweep.” (See Docket Entries 2 at 7; 9 at 2-3.) At this stage in the proceedings, the undersigned accepts Plaintiff's assertions as true for purposes of ruling on Defendant's motion to dismiss.
The second Saucier step requires the court to determine whether the violated right was “clearly established.” In other words, the court must determine whether Deputy Kavanaugh had “fair warning that [his] conduct was unconstitutional.” See Ridpath v. Board of Governors Marhsall Univ., 447 F.3d 292, 313 (4th Cir. 2006). The undersigned finds that a reasonable officer would know that it is was unlawful to perform a lengthy search under the guise of “searching for other occupants,” and thus the right was clearly established at the time of the search. Therefore, at this stage in the litigation, Defendant Kavanaugh is not entitled to qualified immunity for the search of Plaintiff's curtilage.
4. Damages
Finally, Moving Defendants assert that, even if the search was unlawful, since Plaintiff does not allege any actual injury from the search, he is only entitled to nominal damages. (See Docket Entry 15 at 20.) In support of their argument, they cite to Townes v. City of New York, 177 F.3d 138, 148-49 (2d. Cir. 1999), which has been adopted by the Fourth Circuit. See, e.g., White v. City of Greensboro, 608 F.Supp.3d 248, 263 (M.D. N.C. 2022); Ware v. James City Cnty., 380 Fed.Appx. 274 (4th Cir. 2010). In Townes, the Second Circuit held that, even if a search is unlawful, a Plaintiff bringing a § 1983 claim for an unreasonable search can only recover damages directly stemming the search and invasion of privacy and not for damages stemming from a subsequent conviction and incarceration. See Townes, 177 F.3d at 149 (“The lack of probable cause to stop and search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant.”). Since “[s]ection 1983 damages are intended to compensate an individual for the injuries suffered as a result of a constitutional violation[,] . . . [w]here no injury [is] present, no ‘compensatory' damages [can] be awarded.” White, 608 F.Supp.3d at 264 (citing Memphis Community School District v. Stachura, 477 U.S. 299, 305-06 (1986)).
Here, the only injury alleged by Plaintiff stems from the circumstances relating to his arrest. Namely, Plaintiff claims that because he was forced to sit in the back of Deputy Kavanaugh's police car for an extended period of time, he became disoriented and needed medical attention. (See Docket Entry 2 at 6-7, 9.) However, having found that Defendant Kavanaugh is entitled to qualified immunity for Plaintiff's arrest, any injury stemming from his arrest would not be constitutionally violative.
Since Defendant Kavanaugh is not entitled to qualified immunity at this stage in the litigation for the search of Plaintiff's curtilage, Plaintiff may be entitled to damages for injuries stemming from the search and the invasion on his privacy. However, Plaintiff has not pled any specific injury stemming from the search. Also, pursuant to Townes, Plaintiff cannot seek damages for any subsequent injury that occurred after the search, such as his incarceration or conviction. See White, 608 F.Supp.3d at 266 (citing Vaughn v. Whitfield, No. 8:12-CV-2405-RMG, 2013 WL 5144751, at *20 (D.S.C. Sept. 12, 2013), in which the court dismissed a claim for unreasonable search and seizure claims under § 1983 because “Plaintiff ha[d] not pled or proven any actionable injury based on either alleged unlawful search”). Therefore, any damages awarded will need to be tailored to address only Plaintiff's invasion of privacy, which will likely be nominal. See White, 608 F.Supp.3d at 265 (M.D. N.C. 2022) (citing Townes, 176 F.3d at 148) (“[T]he goal of the Court's § 1983 jurisprudence has been to tailor liability to fit the interests protected by the particular constitutional right in question.”). Nevertheless, even if plaintiff is only entitled to nominal damages, the undersigned recommends that the claim be allowed to proceed. See e.g., White, 608 F.Supp.3d at 266-67 (collecting cases).
Plaintiff requests $200,000 in compensatory damages resulting from the “warrantless entry onto private property” and the “8% seizure of Plaintiffs residence and premises,” but does not explain how he arrived at such a sum. (Docket Entry 2 at 10.)
C. Motion to Amend Complaint
Plaintiff also seeks to amend his Complaint to “correct mistakes and critical omissions ....” (Docket Entry 21 at 1.) Specifically, Plaintiff seeks to add (1) the exact time that he was arrested and the search began; (2) an additional claim in which he alleges he was not Mirandized; (3) additional facts supporting his unlawful arrest and failure-to-train claims; and (4) other supplemental details surrounding the incident. (See generally id.) Rule 15(a) of the Federal Rules of Civil Procedure allows a party to “amend its pleading once as a matter of course” within 21 days of the filing of a responsive pleading. Fed.R.Civ.P. 15(a)(1). If more than 21 days have passed, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Rule 15(a) further states that “[t]he court should freely give leave when justice so requires.” Id. Granting a motion to amend a complaint is within the discretion of the Court, “but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Fourth Circuit has stated that “[a] district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010). An amended complaint is futile if it cannot withstand a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6); thus, the Court may deny a futile motion. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995); see also Duncan, No. 1:19CV459, 2021 WL 11430607, at *5.
Here, in addition to reiterating facts and claims already present in his pleadings, Plaintiff seeks to “correct mistakes and critical omissions ....” (Docket Entry 21 at 1.) Regarding his unlawful arrest claim, the only new information he seeks to add is that (1) he was not Mirandized; (2) he was interviewed before “going to a magistrate to serve the warrant or turn him over into the custody of the Johnston County Authorities” and; (3) he became sick while in the police car because Defendant Kavanaugh would not allow him to take his diabetes medication after he was arrested. (Id. at 2-5.) Also, he states that when medics arrived, his blood sugar was elevated. (Id. at 4.) He further notes that Defendant Kavanaugh refused to roll down the police car's windows or turn on the air conditioning.
First, Plaintiff asserts that he was “never mirandized.” (Id.) This assertion is insufficient to raise a claim because “[t]he failure to read a detainee the Miranda warning does not violate the suspect's constitutional rights and therefore cannot be grounds for a § 1983 claim.” Norton v. Tabron, No. 7:16-CV-56-BO, 2016 WL 5867045, at *4 (E.D. N.C. Oct. 6, 2016), aff'd, 727 Fed.Appx. 762 (4th Cir. 2018) (citing Chavez v. Martinez, 538 U.S. 760, 772 (2003)). Additionally, none of the other proposed additions change the above analysis as to why his unlawful arrest claim should be denied. Therefore, granting the motion to amend to add these facts would be futile.
Regarding the failure-to-train or supervise claim, Plaintiff seeks to add that “Deputy Medina” was “presen[t] and participat[ed] in the unlawful search and seizure.” (Docket Entry 21 at 3.) Plaintiff asserts that this supports the claim against Sheriff Peterkin because Deputy Medina was “a new officer being taught first hand by his fellow officers the incorrect way to conduct a lawful search and seizure of a residence and premises would indicate deficiencies in a police training program.” (Id.) Additionally, Plaintiff asserts that he “would like to add that Sheriff Peterkin maintained an unconstitutional practice or custom” regarding serving arrest warrants and that he has “evidence” that other officers “acted similarly.” (Id. at 7.) These conclusory assertions do not meaningfully support or change the failure-to-train analysis and therefore its addition is futile.
Plaintiff also claims Defendants violated “Article I, § 20 of the North Carolina Constitution.” (Id. at 8.) The relevant section states: “General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.” N.C. Const. art. I, § 20. “This provision, analogous to the Fourth Amendment of the U.S. Constitution, likewise prohibits unreasonable searches and seizures and requires that warrants be issued only on probable cause.” Cates v. Sandoval, No. 1:20CV200, 2020 WL 5665537, at *5 (M.D. N.C. Sept. 23, 2020) (internal quotation omitted).
However, “[t]he law is well-settled in North Carolina that ‘a direct cause of action under the State Constitution is permitted only “in the absence of an adequate state remedy.”'” Caviness v. Durham Pub. Sch. Bd. of Educ., No. 1:95CV00878, 1996 WL 33657236, at *7 (M.D. N.C. Dec. 16, 1996) (quoting Davis v. Town of Southern Pines, 116 N.C.App. 663, 675 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995)). “North Carolina courts have identified corresponding adequate state claims [for violations of Article I, § 20] such as false imprisonment and trespass to chattels.” Cates, 2020 WL 5665537, at *5. Accordingly, Plaintiff has adequate state remedies available and thus bringing a claim under the State Constitution is futile. See e.g., id. Additionally, any other facts or assertions made in Plaintiff's motion to amend are irrelevant, conclusory, would not correct fatal defects, or fail to allege sufficient facts and thus are futile.
Even though a plaintiff might not succeed on a claim, “that does not mean he lacked an adequate state-law remedy. An available claim does not fail to provide an adequate remedy merely because the claim is meritless.” Cates, No. 1:20CV200, 2020 WL 5665537, at *5 n.5 (citing Edwards v. City of Concord, 827 F.Supp.2d 517, 524 (M.D. N.C. 2011) (reasoning that even if “a plaintiff may not be able to meet his factual proof,” he still possesses an adequate state-law remedy and thus is barred from bringing a claim under the State Constitution)).
III. Conclusion
For the reasons stated above, IT IS HEREBY ORDERED that the stay imposed by this Court on December 12, 2021, shall be LIFTED.
IT IS FURTHER RECOMMENDED that Plaintiff's motion entitled, “Motion Requesting the Court to Order Disclosure of the Name and Address of all Unserved Defendant(s) in the Present Case at Bar” (Docket Entry 13) be GRANTED IN PART as to Timothy Rugg, Samuel Morant, and Stanley Davis and DENIED IN PART as to John Does 1-5 as set forth herein. Counsel for Defendants Hoke County, Sheriff Hubert Peterkin, and Deputy Timothy Kavanaugh shall make a good faith effort to obtain the last known addresses of Defendants Timothy Rugg, Samuel Morant, and Stanley Davis, who purportedly are employees of the Hoke County Sheriff's Office, and, if able, counsel shall file that information, under seal with the Court, for service of process purposes only within (7) days of this Order and Recommendation. To the extent the requested information cannot be obtained, counsel should file a statement under seal with the Court explaining counsel's efforts to locate the information within (7) days of this Order and Recommendation.
If a last known address is obtained for Defendants Rugg, Morant, or Davis, the Clerk shall issue a summons for said Defendants (in redacted form) and the U.S. Marshals Service shall attempt service upon Defendants Rugg, Morant, and Davis.
IT IS FURTHER ORDERED that Plaintiff's letter motion for copies (Docket Entry 20) be DENIED.
IT IS FURTHER RECOMMENDED Plaintiff's motion entitled “Motion to Amend Complaint Pursuant to Rule 15(A) Fed. R. Civ. P.” (Docket Entry 21) be DENIED.
IT IS FURTHER RECOMMENDED that Defendants Hoke County, Sheriff Peterkin, and Timothy Kavanaugh's Motion to Dismiss (Docket Entry 14) be GRANTED IN PART and DENIED IN PART. As a result, all claims against Hoke County and Sheriff Peterkin should be dismissed. Further, the only claim that should proceed against Defendant Kavanaugh is regarding the search and seizure of Plaintiff's curtilage.
To the extent that Defendants Rugg, Morant, and Davis are properly served, those claims remain.
IT IS FURTHER RECOMMENDED that unserved Defendants John Doe #1, John Doe #2, John Doe #3, John Doe #4, and John Doe #5 be dismissed without prejudice.