Opinion
1:01cv74-C
June 15, 2001
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendants' Motion to Dismiss (#9). Having carefully considered that motion and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
Plaintiff is the Administratrix of the Estate of Rigoberto Olvera Briones, who died in a confrontation with the Henderson County Sheriff's Department. Plaintiff has filed this matter pro se. As discussed below, the factual allegations of the complaint are taken as true for purposes of a motion to dismiss, and are summarized here to aid further review.
Review of the pro se complaint reveals that it likely was drafted by a lawyer who has not made an appearance. While not an unethical practice, the court notes that ghostwriting does little for the judicial process, inasmuch as pro se litigants are ill equipped to prosecute the complex issues raised without continued legal assistance. If a matter is worthy of an attorney taking the time to draft a complaint, it is also worthy of that attorney's personal appearance.
Plaintiff's decedent was shot and killed on April 11, 1999, by defendants Edmundson and McQuinn, deputies with the Henderson County Sheriff's Department. It is plaintiff's claim that decedent was shot twice in the head while he was peacefully attempting to bring his truck to a stop and that neither deputy was at risk of harm at the time. As to the defendant sheriff of Henderson County and the defendant County of Henderson, plaintiff contends they failed to train the deputies and have condoned their actions by failing to discipline them over the shooting.
Plaintiff brings causes of action under 42, United States Code, Section 1983 for unlawful seizure in violation of the fourth amendment and denial of due process under the fifth and fourteenth amendments. See First Claim for Relief. In addition, plaintiff asserts a due-process claim under the North Carolina Constitution on behalf of the decedent and a due-process claim on behalf of the family for deprivation of the decedent's consortium without due process. See Second Claim for Relief. Also asserted is a claim for wrongful death, with allegations of gross negligence and malice, under North Carolina common law. See Third Claim for Relief. Further, plaintiff claims that the actions of the deputies are attributable to the sheriff, inasmuch as the deputies are a sheriff's alter ego under North Carolina law. Finally, plaintiff claims that the named surety is liable for all such acts in accordance with North Carolina law. Plaintiff seeks compensatory as well as punitive damages.
II. Dismissal Standard
Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiff has failed to state cognizable claims against a number of the defendants. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989); Hishon v. King Spalding, 467 U.S. 69, 73(1984); Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory. . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to plaintiff.
III. Discussion
A. Defendants' Motion to Dismiss
In moving to dismiss, defendants contend, as follows:
1. Defendant Henderson County is entitled to dismissal of the entire action since a North Carolina county neither controls nor is responsible for the conduct of the sheriff;
2. All defendants are entitled to dismissal of the Section 1983 official capacity claim since a North Carolina sheriff is not a "person" subject to suit under Section 1983 when sued in his official capacity;
3. All defendants are entitled to dismissal of the North Carolina constitutional claim given the availability of an adequate remedy under state tort law, i.e., the wrongful-death claim; and
4. On the basis of public-official immunity, Sheriff Erwin is entitled to dismissal of the wrongful-death claim brought against him in his individual capacity since his asserted liability is predicated upon only an alleged failure to train rather than a claim he acted with malice or corruption.
The undersigned will discuss each basis for dismissal seriatim.
B. Dismissal of Henderson County
Review of plaintiff's complaint in a light most favorable to such party reveals that it is plaintiff's theory that the county defendant is liable for the acts of the deputies for failure of the county to train and/or discipline the deputies, thereby ratifying their actions. Defendant Henderson County must, however, be dismissed under well-settled law.
The capacity of a governmental body to be sued in federal court is governed by state law. Fed.R.Civ.P. 17(b); Avery v. County of Burke, 660 F.2d 111, 113-14 (4th Cir. 1981). A sheriff, not the county he serves, is the employer of his subordinates under North Carolina law.Clark v. Burke County, 117 N.C. App. 85, 89(1994). Chapter 153A-103 of the North Carolina General Statutes delegates to the respective county boards of commissioners the responsibility for determining the number of salaried employees allotted to a sheriff. The sheriff is given unfettered discretion under Chapter 153A-103(1) as to the hiring, discharge, and supervision of those salaried employees. The commissioners' only authority in employment decisions comes when a sheriff wants to hire a near relative or a person convicted of a crime of moral turpitude. N.C. Gen. Stat. 153A-103(1). The proper defendant in a lawsuit alleging misconduct by a sheriff's deputy, therefore, is the sheriff himself, not the county. For the foregoing reasons, the undersigned will recommend that Henderson County be dismissed from this action.
C. Dismissal of Official-Capacity Claims
Review of the complaint reveals that plaintiff has attempted to sue the sheriff and his deputies in their official capacities. Defendants argue that a sheriff in North Carolina is a state officer, not a county officer, and that any Section 1983 official capacity claim against the sheriff or his deputies would be barred, inasmuch as a suit against a state actor is a suit against the state, which enjoys immunity under the eleventh amendment.
In Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996), the Court of Appeals for the Fourth Circuit concluded that a North Carolina sheriff acts on behalf of his or her county, not the state, when performing law-enforcement duties, and, therefore, is not entitled to eleventh-amendment immunity. After Harter, the United States Supreme Court, in Regents of the University of California v. Doe, 519 U.S. 425 (1997), abandoned the analysis applied by the appellate court in Harter.
The Harter court determined that the most critical factor, if not the conclusive one, is whether the treasury of the state would be affected by an adverse judgment against the public official in question. Id. at 337-39. The Court in Regents later determined that the impact of a judgment on a state treasury is not the dominant factor in determining eleventh-amendment immunity, since the determination does not turn on "a formalistic question of ultimate financial responsibility." Regents of the University of California v. Doe, supra, at 431. The Court held that the question of whether a particular entity is an arm of the state "can be answered only after considering the provisions of state law that define the agency's character [as an agency of local government or an arm of the state]." Id., at 429, n. 5 (emphasis added).
This departure from Harter was further emphasized in the Supreme Court's latest opinion on the subject, McMillian v. Monroe County, 520 U.S. 781(1997), wherein the Court unequivocally held that the question of whether a sheriff represents the state or the county is "dependent on the definition of the official's functions under relevant state law." Id., at 1737.
In reliance upon McMillian, the North Carolina Court of Appeals, inBuchanan v. Hight, 133 N.C. App. 299(1999), reaffirmed that a sheriff and his deputies function as "state officials" and, therefore, are not "persons" within the meaning of Section 1983 when sued in their official capacities. See also Knight v. Vernon, 214 F.3d 544, 552 (4th Cir. 2000). McMillian provides that this court is required to look to state law in determining whether a local public official acts on behalf of the county or the state. Indeed, sister federal district courts have concluded under McMillian that North Carolina sheriffs enjoy eleventh-amendment immunity. See Cash v. Granville County Bd. of Educ., 5:99CV408 BR3 (E.D.N.C. March 8, 2000); Sampson v. Maynor, 7:99CV51 F (E.D.N.C. October 6, 1999).
Historically, the position of sheriff in North Carolina has been tied not only to law enforcement, but to governance. In 1754, sheriffs were appointed by the English Crown to collect quitrents from county residents. In 1776, the English system was little changed when the State of North Carolina, as one of its first legislative acts, created the office of sheriff, which was filled by legislative appointment. It was not until 1829 that citizens of North Carolina were given the authority to elect their sheriffs. As historical commentators have noted, a sheriff headed county government and held the unique position of representing state government on a local basis. Although the North Carolina Constitution has been reworked several times in the last two centuries, the method of selecting a sheriff has undergone little change, despite the urging of reformers. Today, the office of sheriff is established by Article VII, Section 2, of the North Carolina Constitution (1970). The extraordinary role a sheriff plays in North Carolina's system of justice is nowhere better defined than in Chapter 17E-1, which provides, as follows:
Hugh Lefler, North Carolina History.
The General Assembly finds and declares that the office of sheriff, the office of deputy sheriff and the other officers and employees of the sheriff of a county are unique among all of the law-enforcement offices of North Carolina. The administration of criminal justice has been declared by Chapter 17C of the General Statutes to be of statewide concern to the people of the State. The Sheriff is the only officer of local government required by the Constitution. The sheriff, in addition to his criminal justice responsibilities, is the only officer who is also responsible for the courts of the State, and acting as their bailiff and marshal. The sheriff administers and executes criminal and civil justice and acts as the ex officio detention officer.
The deputy sheriff has been held by the Supreme Court of this State to hold an office of special trust and confidence, acting in the name of and with powers coterminous with his principal, the elected sheriff.
The offices of sheriff and deputy sheriff are therefore of special concern to the public health, safety, welfare and morals of the people of the State.
N.C. Gen. Stat. § 17E-1 (as revised by 1995 N.C. Sess. Laws 103). Based upon all the information and law available, including the decision of the Supreme Court in McMillian, the undersigned must recommend that the official-capacity claims lodged against the sheriff and his deputies be dismissed, inasmuch as a suit against a North Carolina sheriff and/or his deputies is a suit against the State of North Carolina, which enjoys eleventh-amendment immunity.
D. Dismissal of State Constitutional Claim
Under well-settled North Carolina law, a state constitutional claim is valid only where no adequate remedy is available under state tort law.See Corum v. University of North Carolina, 330 N.C. 761, 782(1992). In this case, plaintiff has alleged the adequate remedy in tort, which is a wrongful-death claim. The undersigned, therefore, will recommend that those claims be dismissed in accordance with Rule 12(b)(6).
E. Dismissal of Wrongful-Death Claim as to Defendant Erwin, Sued in His Individual Capacity
On the basis of public-official immunity, Defendant Erwin seeks dismissal of the wrongful-death claim brought against him in his individual capacity. He argues that because his asserted liability is predicated only upon an alleged failure to train, rather than a claim that he, personally, acted with malice or corruption, he is entitled to the relief he seeks. North Carolina law provides "public-official immunity" for public officials sued for alleged violations of state law.
[A] public official is immune from personal liability for mere negligence in the performance of his duties, but he is not shielded from liability if his alleged actions were corrupt or malicious or if he acted outside and beyond the scope of his duties.Slade v. Vernon, 110 N.C. App. 422, 428(1993). To overcome state "public-official immunity," a plaintiff must "make a prima facie showing that the officer's conduct is malicious, corrupt, or outside the scope of his official authority." McCarn v. Beach, 128 N.C. App. 435, 437(1998). In this case, the only allegations against Defendant Erwin are boilerplate allegations that he failed to discipline the officers for their actions or, perhaps, failed to train them in the use of force. As discussed above, decisions concerning the discipline and training of deputies are well within the scope of a sheriff's official authority. The undersigned, therefore, will recommend that the wrongful-death claim be dismissed as to Defendant Erwin in his individual capacity.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendants' Motion to Dismiss be ALLOWED, and that
(1) all claims asserted against defendant Henderson County be DISMISSED and that such defendant be dismissed from this action;
(2) all Section 1983 claims asserted against defendants in their official capacities be DISMISSED;
(3) all North Carolina constitutional claims be DISMISSED as to all defendants; and
(4) the wrongful-death claim asserted against Defendant Erwin in his individual capacity be DISMISSED.IT IS FURTHER RECOMMENDED THAT all remaining defendants file their answer to the remaining claims asserted against them within 20 days of receipt of the district court's decision upon this recommendation.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).