Summary
looking to "exhibit attached to the amended complaint" in determining that statute of limitations barred claim
Summary of this case from Lewis v. North Carolina Agricultural Tec. St. UOpinion
Civil No. 1:99CV127
August 4, 2000
Michael Lee King, King Stockton, Salisbury, NC, for plaintiffs.
John H. Watters, N.C. State Bureau of Investigation, Department of Justice, Raleigh, NC, for North Carolina State Bureau of Investigation, interested party.
Frank P. Graham, Roberts Stevens, P.A., Asheville, NC, for C.D. Thrift, Robert "Bob" Baker, City of Rutherfordton, North Carolina, defendants.
Frank J. Contrivo, Asheville, NC, for Christopher "Chris" Justice, individually, in his capacity as a law enforcement officer and as an agent of the City of Spindale, North Carolina defendant.
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the parties' timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the undersigned referred the Defendants' motions to dismiss and a motion for judgment on the pleadings to the Magistrate Judge for a recommendation as to disposition. All of the parties except Defendant Justice, who moved for judgment on the pleadings, have filed objections to the recommendation. The Court therefore conducts a de novo review of those portions of the recommendation to which objections have been filed. 28 U.S.C. § 636(b).
I. STANDARD OF REVIEW
Defendants moved to dismiss the complaint for failure to state causes of action upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss for failure to state a claim, the Court must "accept the factual allegations in the Plaintiffs' complain and must construe those facts in the light most favorable to the Plaintiffs. . . . [Dismissal ma occur] only if it appears beyond doubt that the Plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Flood v. New Hanover County, 125 F.3d 249, 251 (4th Cir. 1997); Shepard's, Motions in Federal Court, § 5.124, at 367 (2d ed. 1991). Conclusory allegations are examined in light of the factual claims. Id. "To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint need only outline a recognized legal or equitable claim which sufficiently pinpoints the time, place, and circumstances of the alleged occurrence and which, if proven, will justify some form of relief." Id., § 5.123, at 366. If "relief could be granted under any set of facts that could be proved consistent with the allegations," the motion must be denied. Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
Defendants also moved, variously, to dismiss for lack of subject matter and personal jurisdiction.
II. STATEMENT OF FACTS
The Plaintiffs in this action are the parents of Sterling Wilkerson who is the Plaintiff in another action stemming from the events of July 4, 1996. See, Sterling Wilkerson v. Hester, Civil Action No. 1:99cv130. According to the allegations of the complaint, Plaintiff Richard Wilkerson allowed Sterling to borrow his 1992 Chevrolet pickup on July 4, 1996. Later that day Richard learned that Sterling had been stopped by law enforcement authorities while driving. Richard and his wife, Plaintiff Lemmer Wilkerson, drove to the location where Sterling had been stopped. There, they saw the pickup but their son was absent. Defendant Thrift, a police officer with the City of Rutherfordton, was there and Richard asked him where Sterling was but received no answer. Richard then walked over to the truck and was told by Thrift not to touch it. At that point, Richard told Thrift that he was the owner of the pickup and began walking back toward his car. However, Thrift grabbed Richard's right arm and forced it behind his back with such force that it was broken and he then sprayed Richard with pepper spray. About this time, Defendant Justice, a police officer with the City of Spindale, arrived and exited his car with his police dog. On Justice's command, the dog attacked Richard, biting him on the leg, arm, face and head. Defendant Baker, another Rutherfordton police officer, handcuffed Richard and placed him on the ground. Richard suffered another dog bite after he was handcuffed and on the ground. Lemmer was also assaulted by Thrift who hit her head against the side of the pickup.
The Defendants charged Richard with resisting an officer, assault on an officer and assault on a government official. Lemmer was charged with disorderly conduct, creating a public disturbance, assault on a government official and inciting a riot. Plaintiffs allege that due to a conspiracy and perjured testimony, they were found guilty of some of these charges in the state district court. Richard was found guilty of two charges of resisting an officer and one charge of assault on an officer. He was found not guilty of assault on a government official. However, when he appealed these convictions to the state superior court, the jury found him not guilty of a charges. Likewise, in the district court, Lemmer was found guilty of disorderly conduct, creating a public disturbance and inciting a riot. She was found not guilty of assault on a government official. When Lemmer appealed her convictions to superior court, the jury acquitted her of a charges.
The Wilkerson family is African-American. Earlier during the day, Sterling was stopped by a deputy sheriff. After the stop, Defendant Thrift arrived at the scene and assisted in arresting Sterling. In the companion action, Sterling alleges that the deputy sheriff broke his finger during the stop and arrest.
III. DISCUSSION
Plaintiffs have alleged violations of 42 U.S.C. § 1983 as a result of the use of excessive force, illegal seizure and unlawful prosecution. They have also pled violations of state constitutional rights, a claim of malicious prosecution and two claims of conspiracy to violate their civil rights, in violation of 42 U.S.C. § 1985 and 1986. The Magistrate Judge recommended the dismissal of some but not all claims. The objections will be considered sequentially.
A. Suit against the Defendants in their individual capacities.
The caption of the complaint names the individual Defendants as, e.g., "C. D. Thrift, individually, in his capacity as a law enforcement officer and as an agent of defendant City of Rutherfordton, North Carolina. . . ." The Magistrate Judge concluded the caption was sufficient to put the Defendants on notice that they were sued individually as well as officially. Defendants object, arguing that Plaintiffs' complaint alleges only conduct taken in their official capacities; thus, they claim no action lies against them personally. Defendants also claim that in the companion case of Sterling Wilkerson v. Hester, supra, the undersigned dismissed claims against Defendant Thrift because no allegations had been made that he acted in anything other than an official capacity. However, the issue of official versus individual capacity was not addressed in that decision.
As the Magistrate Judge noted, "a plaintiff need not plead expressly the capacity in which he is suing a defendant in order to state a cause of action under § 1983." Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir. 1995). And, contrary to Defendants' position, they may be sued personally for actions taken in their official capacities.
Personal-capacity suits . . . seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, "[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official acting under color of state law, caused the deprivation of a federal right. . . ." [T]he phrase "acting in their official capacities" is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. . . . The requirement of action under color of state law means that [the defendant] may be liable for discharging respondents precisely because of her authority as [a state officer]. . . . Congress enacted § 1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it."
Hafer v. Melo, 502 U.S. 21, 25-29 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985) and Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting Monroe v. Pape, 365 U.S. 167, 171-72 (1961))) (emphasis added). As the Supreme Court recently stated, "State officers are subject to § 1983 liability for damages in their personal capacities . . . even when the conduct in question relates to their official duties." Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997) (emphasis added). Thus, despite the fact that the Defendants may have been acting in "the course and scope of their employment as police officers" at the time of the events alleged, they still are subject to personal liability.
Defendants' objections also claim the conduct alleged is not sufficiently egregious to stat a claim for punitive damages against them in their individual capacities. The undersigned rejects this argument. See, e.g., Smith v. Wade, 461 U.S. 30 (1983); Carter v. Barker, 2000 WL 1008794 (4th Cir. 2000) ($200,000 punitive damages award in § 1983 action affirmed on appeal against Chief Deputy Sheriff who physically and sexually harassed underling through abuse of his power.). Plaintiffs have correctly noted in their objections that they did no assert punitive damages claims against the municipalities or the officers in their official capacities. It is therefore unnecessary to dismiss such claims.
B. Qualified immunity.
Defendants Thrift and Baker argue the Magistrate Judge should have found them entitled to qualified immunity as to the claims against them in their individual capacities. The Magistrate Judge noted that neither officer had provided an affidavit concerning their conduct on the date in question. Defendants object, claiming an affidavit was not necessary to such a determination.
Richard Wilkerson has alleged that Thrift broke his arm during an unnecessary and unwarranted subduing and thereafter sprayed him with pepper spray. He has alleged that Baker allowed Justice's police dog to bite him after Baker had Richard handcuffed and on the ground. I the Plaintiffs' assertions of facts are true, no reasonable officer could have believed his conduct was warranted. Lowery v. Redd, 14 F.3d 595 (table), 1993 WL 527998 (4th Cir. 1993). These allegations are sufficient to withstand dismissal at this point in the absence of sworn evidence from the officers concerning their perceptions of the unfolding events. Id.
C. The excessive force claim as to Plaintiff Lemmer Wilkerson.
Plaintiffs object to the Magistrate Judge's recommendation that Lemmer's excessive force claim be dismissed because she has alleged only de minimis injury. Counsel is correct that this claim could be analyzed pursuant to the Fourth Amendment because Lemmer was not in custody and had not been arrested at the time of the incident. Riley v. Dorton, 115 F.3d 1159 (4th Cir.), cert. denied, 522 U.S. 1030 (1997). However, based on the allegations of the complaint, it is unclear at this time whether the harm allegedly inflicted occurred in the course of an attempted arrest or apprehension of Lemmer who was suspected of criminal conduct. Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997). If not, the claim would be one for a "violation of the substantive due process right under the Fourteenth Amendment not to be subjected by anyone acting under color of state law to the wanton infliction of physical harm," i.e., the right to bodily integrity. Id. Since at this point it is unclear whether the § 1983 claim is governed by the Fourth, Eighth or Fourteenth Amendment, Lemmer's excessive force claim may not be dismissed.
D. State law claim for malicious prosecution.
Defendants Thrift and Baker argue that this claim should be dismissed; however, their argument is directed to the conspiracy causes of action which are pled pursuant to federal statute. Since the objections are not specific and do not address this claim, they are rejected.
E. The statute of limitations as to Defendants Conner and Mitchell.
Defendant Conner is the Chief of Police for the City of Spindale; Defendant Mitchell is the city's attorney. Plaintiffs allege these Defendants conspired with the Rutherfordton police officers to "cover-up" the use of excessive force by perjuring themselves in the state district court proceedings concerning Defendant Justice's use of the police dog. Their conduct, it is alleged, was not discovered by the Plaintiffs until a later but undisclosed time in a different state court. In response to the Defendants' motion to dismiss, counsel stated that this conduct was discovered during a hearing on November 4, 1996.
Attached to the amended complaint as an exhibit is a motion to have Defendants Conner and Mitchell held in contempt of court which was filed in state court on October 14, 1996. In the motion, Plaintiffs' attorney recounts that a subpoena was issued on August 16, 1996, to Conner for information concerning other incidents involving the use and handling of the police dog by Defendant Justice. Defendant Mitchell moved to quash the subpoena and that motion was heard on September 12, 1996. At that hearing, Conner was ordered to comply with the subpoena. The presiding judge also asked Conner and Mitchell if they knew of any incidents, other than those identified, involving Officer Justice and his police dog. They replied in the negative despite the fact that Plaintiffs' counsel had himself informed Mitchell of another such incident and a written complaint had been received by the police department nine days prior to the hearing. Plaintiffs' conspiracy allegations as to these Defendants are based on this information.
Plaintiffs' original complaint was filed on July 1, 1999, but it did not name Conner and Mitchell as defendants. On September 30, 1999, Plaintiffs moved for leave to amend the complaint to add them as Defendants. Conner and Mitchell opposed amendment, raising the issue of the statute of limitations. By Order filed January 5, 2000, the Magistrate Judge allowed Plaintiffs to amend the complaint and the amended pleading was filed on February 1, 2000. This complaint added Conner and Mitchell as parties and added the conspiracy causes of action.
That complaint did name Justice and the City of Spindale as Defendants.
Defendants moved to dismiss the claims against Conner and Mitchell based on the three year statute of limitations applicable to §§ 1983 and 1985 causes of action. At issue is the point in time when Plaintiffs "possess[ed] sufficient facts about the harm done to [them] that reasonable inquiry [would] reveal [their] cause of action." Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 955 (4th Cir. 1995). Based on the exhibit attached to the amended complaint, it is clear that during the September 12, 1996, hearing, counsel became aware of sufficient facts to support the conspiracy claims. There is nothing in the record showing a hearing on November 4, 1996, other than counsel's mere reference thereto. Moreover, the pleadings themselves show that as of September 12, 1996, the Plaintiffs knew of the alleged conduct to which they object. The issue now becomes whether the amended complaint may be allowed to relate back to the time of filing of the original complaint.
In order for an amendment which adds new parties to relate back to the time of filing of the original complaint, Federal Rule of Civil Procedure 15(c)(3) requires (1) that "the claim . . . asserted . . . in the amended pleading arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading;" (2) within 120 days of filing of the original complaint, the parties to be added receive such notice of the action "that the part[ies] will not be prejudiced in maintaining a defense on the merits;" and (3) the parties to be added knew that but for a mistake concerning the identity of the proper party, the action would have been brought against them. Fed.R.Civ.P. 15(c)(3); Keller v. Prince George's County, 923 F.2d 30, 33 (4th Cir. 1991). Here, the allegations of a conspiracy against Conner and Mitchell relate to their conduct during the September 12, 1996, hearing and thus, "arise from separate occurrences of `both time and type.'" United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000). Moreover, the conspiracy claims were not apparent from the original complaint and therefore, may not relate back in time. Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir. 1989). And, the Fourth Circuit has held that an amendment which seeks to add new parties may not relate back where there was a lack of knowledge of the proper party. Id.
[A] new defendant cannot be substituted or added by amendment after the statute of limitations has run. Rule 15(c)(3) permits an amendment to relate back only where there has been an error made concerning the identity of the proper party, and where that party is not chargeable with knowledge of the mistake. . . . There is relation back where a plaintiff has misnamed the party the plaintiff actually intended to sue who is already part of the lawsuit, but not where the plaintiff was simply wrong about who the plaintiff wanted to sue.
Rennie v. Omniflight Helicopters, Inc., 165 F.3d 19 (table), 1998 WL 743678 **2 (4 th Cir 1998). Defendants Conner and Mitchell are therefore entitled to dismissal from the action.
As to Defendants Thrift, Baker and Justice, the amended complaint alleges that the conspired to deprive Plaintiffs of constitutional rights by charging them with the offenses of which they were convicted in the state district court. They also are alleged to have testified falsely in those proceedings. Although not specified, it is assumed the charges were brought on the day of arrest, or shortly thereafter. And, although no dates for the district court trials are specified, the convictions appear to have been obtained in 1996. Thus, the amended complaint filed in February 2000 was not timely. And, because the statute of limitations for filing conspiracy claims had expired, relation back is not proper as to these added claims. Fed.R.Civ.P. 15(c)(1); Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (Because the statute of limitations had not yet barred the plaintiff from asserting parallel claims, amendment and relation back allowed.).
Moreover, the undersigned would dismiss these claims in any event. Plaintiffs' conspiracy claims, based on 42 U.S.C. § 1985(2), (3), and 1986, allege that Thrift, Baker and Justice conspired to cover up their wrongdoing by bringing false charges against the Plaintiffs and that Mitchell, Conner and the municipalities conspired to assist in the cover up as it related to Justice's custom of using his police dog on African-Americans.
The law is well settled that to establish a sufficient cause of action for "conspiracy to deny equal protection of the laws" under section 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy. . . . This Court, under that standard, has rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a section 1985 conspiracy. . . . Indeed, we have specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.
Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995) (internal citations omitted). The allegations here are nothing more than speculation. Hinkle v. City of Clarksburg, W.Va., 81 F.3d 416, 423 (4th Cir. 1996). There is another reason for the Defendants' conduct which is just as likely as racial animus: the officers filed the charges and allegedly perjured themselves to avoid discipline for the alleged use of excessive force. In cases with far more compelling facts than those at hand, the Fourth Circuit has concluded that conspiracy claims were not stated. Simmons, supra (involving use of a race profile); Hinkle, supra (rejecting conspiracy under §§ 1983, 1985 and 1986 where police officer destroyed shirt worn by victim in excessive force claim); Gooden v. Howard County, 954 F.2d 960 (4th Cir. 1992) (conspiracy claim by African-American tenant taken to psychiatric hospital after report of disturbance rejected). Moreover, as to Defendant Justice's alleged custom of releasing his police dog on African-Americans, "it simply must be shown that there was a `single plan, the essential nature and genera scope of which [was] known to each person who is to be held responsible for its consequences.'" Simmons, 47 F.3d at 1378 (citing Lenard v. Argento, 699 F.2d 874, 882-83 (7th Cir. 1983)). I is not alleged that the other Defendants knew of Justice's custom.
The dismissal of the § 1985 claim is dispositive of the § 1986 claim since it is dependent on the existence of a § 1985 violation. Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir 1985).
F. Plaintiffs' motion to amend the complaint a second time.
Taking note of a comment in the Magistrate Judge's Memorandum, Plaintiffs now seek leave to amend their complaint to add a claim of conspiracy pursuant to § 1983. A new conspiracy claim based on § 1983 instead of § 1985 would also be time-barred and thus, amendment of the complaint a second time would be futile. Int'l Paper Co. v. Schwabedissen Maschinen Anlagen, 206 F.3d 411, 420 (4th Cir. 2000).
Moreover, the undersigned would not grant leave to amend the complaint a second time. The events at issue occurred over six years ago. Plaintiffs were granted leave to amend their complaint in February of this year yet, now, they seek another amendment over a year after the action was begun. While delay alone is insufficient reason to deny amendment, delay accompanied by prejudice and bad faith is not. Id. This motion was brought only after Plaintiff learned that portions of their action would be unsuccessful upon adoption of the Memorandum and Recommendation. Id. Plaintiffs have failed repeatedly to cure deficiencies in this complaint. Pittston Co. v. United States, 199 F.3d 694, 705 (4th Cir. 1999). The case is in no better posture now than when filed over one year ago. Yet, as time progresses, memories fade and the ability of both sides to present a cogent case deteriorates. Amendment at this point would be prejudicial not only to the Defendants but also to the Plaintiffs who are entitled to have their day in court and who have viable claims which if proven will certainly be successful.
G. Plaintiffs' objection to the dismissal of the City of Rutherfordton.
The Magistrate Judge recommended dismissal of claims against the City of Rutherfordton because the complaint does not sufficiently allege actual or constructive knowledge of custom and failure to correct unconstitutional practices. Plaintiffs object claiming the complaint adequately alleges deficient police training programs and failure by the City to stop unlawful conduct by police officers.
Reviewing the amended complaint, Plaintiffs have alleged that the City had deficient training programs concerning proper procedures for vehicle stops, arrest, search and seizure of an individual and for impounding of a vehicle, the use of pepper spray and excessive force during arrests. Plaintiffs also alleged a practice or custom of using excessive force and pepper spray against African-Americans and a pattern or practice of vehicle stops targeting African-Americans which the City failed to correct. The Magistrate Judge found that because Plaintiffs did not allege that the City had knowledge of prior incidents and a failure to correct the practice, the motion should be granted.
It is correct that "proof of a single incident of the unconstitutional activity charged is no sufficient to prove the existence of a municipal custom." Semple v. City of Moundsville, 195 F.3d 708, 713-14 (4th Cir. 1999), cert. denied, 120 S.Ct. 1243 (2000). However, at this point, the issue is whether the Plaintiffs have stated a claim.
The substantive requirements for proof of municipal liability are stringent. . . . The Supreme Court, however, has confirmed that section 1983 claims are not subject to a "heightened pleading standard" paralleling the rigors of proof demanded on the merits. . . . [A]fter Leatherman [v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 1160 (1993)], a section 1983 plaintiff seeking to impose municipal liability must satisfy only the usual requirements of notice pleading specified by the Federal Rules. He is required under Rule 8(a)(2) to provide nothing more than "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." There is no requirement that he detail the facts underlying his claims, or that he plead the multiple incidents of constitutional violations that may be necessary at later stages to establish the existence of an official policy or custom and causation.
Jordan by Jordan v. Jackson, 15 F.3d 333, 338-39 (4th Cir. 1994) (quoting Leatherman, 113 S.Ct. at 1163 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))) (footnote omitted). Thus, although Plaintiffs' claims may not withstand summary judgment, at this point they have stated a claim upon which relief may be granted. "The allegations are sufficient to provide the [City] notice of the nature of the claim against them and the grounds on which it rests, and it does not appear beyond doubt that there is no set of facts which the [Plaintiffs] could prove in support of this claim which would entitle them to relief." Id., at 340 (holding the district court committed reversible error by granting the motion to dismiss.).
IV. ORDER
IT IS, THEREFORE, ORDERED as follows:
1. The Defendants' motions to dismiss the claims against them in their personal capacities are hereby DENIED;
2. The Defendants' motions to dismiss punitive damages claims against them in their personal capacities are hereby DENIED;
3. The Defendants' motions to dismiss on the grounds of qualified immunity are hereby DENIED without prejudice to renewal
4. The motion of Defendants Conner and Mitchell to dismiss on the grounds of statute of limitations is hereby GRANTED and the Plaintiffs' claims against them are hereby DISMISSED in their entirety;
5. The Defendants' motions to dismiss the conspiracy claims are hereby GRANTED;
6. The Defendants' motions to dismiss the claims of malicious prosecution are hereby DENIED;
7. The Defendants' motions to dismiss the excessive force claims are hereby DENIED without prejudice;
8. The Defendants' motions to dismiss the alternate state constitutional claims are hereby GRANTED;
9. The motion of Defendant Justice for judgment on the pleadings is hereby DENIED;
10. The motion of Defendant City of Rutherfordton for dismissal is hereby DENIED; and
11. The Plaintiffs' second motion to amend the complaint is hereby DENIED.
For purposes of clarification, the claims remaining in the action are the Plaintiffs § 1983 claims for excessive force, illegal seizure and unlawful prosecution, and the common law claim of malicious prosecution.
The Clerk of Court is instructed to schedule a pre-trial conference before the undersigned with all due expediency.
THIS the __________ day of August, 2000.