Opinion
1:00CV922
March 4, 2002
MEMORANDUM OPINION
This case is now before the Court on the Defendant's Motion to Dismiss [Doc. # 3] pursuant to Rules 4, 12(b)(1), (2), (5), and (6) and 17 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.
I.
The facts, in the light most favorable to the Plaintiff, Kenace Wright, are as follows. In early September. 1997, Plaintiff was sleeping in East End Park when he was awakened by Officers Anthony Smith and Jack Cates of the Durham Police Department, who were patting him and asking "Where are the drugs? Who are you? . . . We want to pat you down. . . ." Plaintiff agreed to let the officers pat him down. Upon finding no contraband on Mr. Wright, Officer Cates asked to see his identification. Mr. Wright could not find his identification but offered an identification number to the officers. Mr. Wright alleges that neither of the officers tried to verify the identification number he provided.
Officer Cates then repeatedly asked for permission to search Mr. Wright's bag. Mr. Wright asked the officers if they had a warrant to search the bag. Officer Cates became upset and began searching the bag without Mr. Wright's permission. A gun was found in the bag and the officers placed Mr. Wright under arrest, slamming him down on a picnic table in the process. Mr. Wright "began to suffocate" and felt his "spine snap." He was brought to jail complaining of pain and numbness in his left fingers, left foot and leg.
Once in jail, Mr. Wright states that he pleaded for medical care but that no one responded to his pleas "until the NAACP and brothers and family" interfered. Mr. Wright claims that "the jail staff refused to help" until they were pressured "by the NAACP and N.O.I. organizations." Two weeks after he was placed in the intake ward and first requested medical care, Mr. Wright was given an aspirin and sent to a regional hospital. When Mr. Wright finally saw a physician, the physician gave Mr. Wright Tylenol and told him to keep a rag on his neck.
Mr. Wright filed a complaint with the Clerk of Court on September 18, 2000, alleging multiple claims under 42 U.S.C. § 1983. He attempted service by mail on January 18, 2001, to "Sheriff's (Dept.) Office of Detention Facility and Durham County Jail." Plaintiff did not send the request by certified mail and did not request any type of return receipt. Defendants Durham County Jail and Medical Staff have moved to dismiss Plaintiff's case pursuant to Federal Rules of Civil Procedure 4, 12(b)(1)(2), (5), and (6) and 17, stating that Plaintiff's claim should be dismissed because of insufficient service of process and lack of subject matter and personal jurisdiction. Defendant Durham County Jail asserts the 12(b)(6) motion, claiming that Plaintiff has failed to state a claim against it upon which relief can be granted.
II.
Plaintiff's case against the Durham County Jail and Medical Staff, etc. is dismissed under 12(b)(5) for insufficiency of service of process and under 12(b)2) for lack of personal jurisdiction. Mr. Wright failed to properly serve the defendants, failed to attempt service within 120 days of the filing of the original complaint, and he named defendants that are not suable entities under North Carolina law.
Rule 4 of the Federal Rules of Civil Procedure dictates the manner in which a Plaintiff may serve the defendant or defendants. Rule 4(e) allows service pursuant to the law of the state in which the district court is located or by personal service as outlined in Rule 4(e)(2). The North Carolina Rules of Civil procedure allow service upon defendants by registered or certified mail. N.C. R. Civ. Pro. 4(j)(1)(c). Rule 4(d) of the Federal Rules allows service by registered mail only if the defendant has waived service.
Mr. Wright attempted to serve process on both defendants by sending the summonses and complaint in a single envelope, via U.S. Mail, addressed to "Sheriff's (Dept.) Office of Detention Facility and Durham County Jail." Defendants have provided the affidavit of Becky Scaggs, a Nurse Supervisor in the Jail Division of the Durham County Public Health Department, affirming that she received the envelope on January 23, 2001 and that she is not authorized to accept service of process on behalf of the Detention Center, the Sheriff or the County. Here, service was not made by registered or certified mail, which is required under the Rules.
Mr. Wright's also failed to attempt service within the time period required by Rule 4(m). The envelope containing the summonses and complaint was postmarked January 18, 2001, 122 days after the complaint was filed with the Court. The Federal Rules require that a plaintiff serve defendants within 120 days after the filing of the complaint unless the plaintiff can show good cause for the delay in service. However, a finding of good cause alone would not save the case from dismissal. Mr. Wright's complaint is dismissed under 12(b)(5) for insufficient service of process because his service was improper and service was not timely.
While some disagreement among the district courts in this Circuit exists as to a court's discretion in extending time for service absent a showing of good cause, the Fourth Circuit has held that a district court must find good cause for the delay in service in order to grant an extension of time in which to effect proper service. Mendez v. Elliot, 45 F.3d 75 (1995) (stating that district courts must find good cause in order to excuse a plaintiff's failure to effect service within 120 days); see Hammad v. Tate Access Floors, Inc., 31 F. Supp.2d 524 (D. Md. 1999) (calling Mendez into question in light of Henderson v. United States, 517 U.S. 654, 116 S.Ct. 1638 (1996), where the Supreme Court interpreted Rule 4(m) to mean that courts have discretion to enlarge the 120-day period "'even if there is no good cause shown'").
Mr. Wright's complaint is also dismissed under Rule 12(b)(2) for lack of personal jurisdiction. The named defendants are not suable legal entities. State law controls the issue of a government agency's capacity to be sued in federal court. Fed.R.Civ.Pro. 17(b); Avery v. Burke, 660 F.2d 111 (4th Cir. 1981) North Carolina law requires that "the Defendant in a civil action must be an existing legal entity, either natural or artificial." Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 284 S.E.2d 697, 701 (1981); see also N.C. Gen. Stat. § 1-75.2(1) (stating for purposes of jurisdiction a person is "any natural person, partnership, corporation, body politic, and any unincorporated association, organization, or society which may sue or be sued under a common name"). North Carolina has provided by statute that a county is a legal entity which may be sued. N.C. Gen. Stat. § 153A-11 (1999). However, no North Carolina statute provides authority to sue a county jail. Instead, the sheriff himself has the care and custody of the jail in his county. N.C. Gen. Stat. § 162-22 (1999).
Under Federal Rule of Civil Procedure 17(b), the ability to sue or be sued is dictated by the law of an individual's domicile, a corporation's state of organization, and in all other cases the state in which the district court sits. Under any of these classifications, the ability to sue or be sued in this case is dictated by North Carolina law.
While Defendants are correct that Plaintiff has attempted to sue an entity that is not suable, this alone would not normally have the effect of a dismissal. Instead, the Fourth Circuit has suggested that it is appropriate for a district court to take measures it might not otherwise take in cases where a plaintiff is proceeding pro se and asserting that certain civil rights have been violated. Gordon v. Leeke, 574 F.2d 1147, 1149-51 (finding, among other things, that it was not inappropriate for a district court to deny a 12(b)(6) motion and request additional information from the defendants in order to determine when and how the alleged events occurred and who was involved). The Fourth Circuit has found that when a pro se plaintiff has:
alleged a cause of action which may be meritorious against a person or persons unknown, the district court should afford him a reasonable opportunity to determine the correct person or persons against whom the claim is asserted, advise him how to proceed and direct or permit amendment of the pleadings to bring that person or persons before the court.Gordon v. Leeke, 574 F.2d 1147, 1152-53 (4th Cir. 1977); see also Garrett v. Elko, 1997 U.S. App. LEXIS 21271 (1997) (unpublished opinion). In his response brief, Mr. Wright attempted to describe more specifically the individuals with whom he dealt at the jail. Mr. Wright also has specifically named the officers involved in his complaint concerning the Fourth Amendment right violations. Mr. Wright, however, will not be able to amend his complaint because the Supreme Court has suggested that such an act is inappropriate when there are other, multiple defects in the case. McNeil v. United States, 508 U.S. 106 (1993) (stating that procedural rules in ordinary civil litigation "should [not] be interpreted so as to excuse mistakes by those who proceed without counsel"). Mr. Wright's case has numerous procedural defects which requires that the case be dismissed.
Officers Jack Cates and Anthony Smith have not responded to the complaint. Because all of the summonses and complaints were apparently mailed to Ms. Scaggs, the officers may or may not have received notice of the lawsuit. Because service was not proper, Plaintiff's complaint is dismissed as to the officers for the reasons set forth in this opinion.
III.
The Durham County Jail moved for dismissal under 12(b)(6) because it argues that Mr. Wright's failure to name the jail in the text of the complaint is a fatal defect which warrants a dismissal on the merits. However, a complaint should not be dismissed under Rule 12(b)(6) for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). The rationale for this standard of proof has been "premised on the notion that disputes should be decided on their facts, as developed through discovery and at trial, rather than on the skill or ineptitude with which pleadings are drawn." Loe v. Armistead, et al., 582 F.2d 1291 (4th Cir. 1978) (citing Bolding v. Holshouser, 575 F.2d 461 (4th Cir. 1978); C. Wright, Federal Courts § 68 (3d ed. 1976)), and is particularly appropriate when dealing with a pro se complaint raising civil rights issues. Id. Because complaints by pro se plaintiffs are to be construed liberally, and because Mr. Wright has made allegations concerning activities that took place inside the jail, Mr. Wright has sufficiently referred to the jail in the complaint, and Defendants' 12 (b)(6) motion on this basis is denied. See Enweremadu. et al. v. Reichlin and Unknown Police Officers of the Chesterfield Co. Police Dept., 1993 U.S. App. LEXIS 20920 (4th Cir. 1978) (unpublished opinion) (finding plaintiffs' complaint sufficiently alleged a federal cause of action despite failure to specifically allege federal jurisdiction because plaintiff failed to mention application of the Fourth Amendment to the states via the Fourteenth Amendment; Court found plaintiffs could still prove facts to support their claim). As previously discussed, however, the jail is not a suable legal entity. If Mr. Wright elects to refile this case, the proper defendants must be named.
Mr. Wright alleges that he pleaded for medical care while in prison and was ignored until the NAACP and others interfered.
Defendants have also moved to dismiss under Fed.R.Civ.Pro. 12 (b)(1) because they allege that the jail is not a "person" for purposes of a § 1983 claim. Since the complaint is being dismissed for other reasons, and Mr. Wright will have to name other defendants if he refiles, it is unnecessary to discuss this motion.
IV.
If Mr. Wright refiles this lawsuit, it may be discovered that many, and perhaps all, of his claims are barred by the statute of limitations in North Carolina for 1983 actions. However, because his complaint in this case is so inartfully pleaded, it is impossible to tell which, if any, claims might survive.In a federal question case, the statute of limitations is determined by state law, but the time at which a statute of limitations begins to run is controlled by federal law. Brooks v. City of Winston-Salem, 85 F.3d 178, 180 (4th Cir. 1996). The most suitable corresponding state statute of limitations for a 1983 action is the three year statute of limitations for a personal injury action. Id. Under federal law,
for purposes of a § 1983 claim, a cause of action accrues either when the plaintiff has knowledge of his claim or when he is put on notice — e.g., by the knowledge of the fact of injury and who caused it — to make reasonable inquiry and that inquiry would reveal the existence of a colorable claim.Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 955 (4th Cir. 1995). Therefore, Mr. Wright needed to have filed his claim within three years of the time he became aware that a right had been violated.
North Carolina General Statute § 1A-1, Rule 41 of the North Carolina Rules of Civil Procedure, allows a court to specify that an action "commenced within the time prescribed therefore" is without prejudice and specify that a new action may be commenced within one year or less after such dismissal. N.C. Gen. Stat. § 1A-1 (1999). Federal courts are to use state tolling provisions when a federal cause of action is governed by state statutes of limitations. Birch v. Peters, 2001 U.S. App. Lexis 27218 (4th Cir. 2001) (citing Beck v. Caterpillar, Inc., 50 F.3d 405 (7th Cir. 1995)), which says that when a federal cause of action is governed by the state statute of limitations, as in 1983 actions, state tolling provisions apply).
Mr. Wright's complaint does not provide a clear picture as to when his alleged injuries occurred. It is impossible to tell with certainty whether the plaintiff brought this action within the statute of limitations. Because issues of fact remain concerning the statute of limitations, it would be inappropriate to dismiss this case with prejudice. Plaintiff is granted the right to refile his suit within one year or less after this dismissal and correct the procedural deficiencies outlined in this opinion, with the knowledge that his claim may not survive once the statute of limitations issues are resolved.
For the foregoing reasons, Mr. Wright's complaint is dismissed without prejudice.