Lee v. Town of Seaboard

Filing 25

ORDER: The court GRANTS defendant's 11 motion to dismiss count four, and count four in the amended complaint is DISMISSED. Plaintiff's 20 motion to file a sur-reply is DENIED. Signed by Chief Judge James C. Dever III on 10/17/2013. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:13-CV-20-D

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BRIAN C. LEE, SR.,
Plaintiff,

v.
TOWN OF SEABOARD,
Defendant.

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ORDER

On March 30, 2013, Brian C. Lee, Sr. ("Lee") filed a complaint against the Town of Seaboard
("Town") [D.E. 1]. Lee seeks to recover damages under North Carolina law for injuries that he
sustained after one of the Town's police officers, Harold Gray Phillips, Jr., shot him. See id.
On July 8, 2013, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Town
moved to dismiss count four of Lee's complaint. See [D.E. 11]. In count four, Lee seeks to state
a claim directly under the North Carolina Constitution. See [D.E. 11, 12].
On July 17, 2013, Lee filed an amended complaint, but did not materially alter count four.
See [D .E. 13] 11. On August 2, 2013, Lee responded in opposition to the motion to dismiss. See
[D.E. 16]. On August 13, 2013, the Town replied. See [D.E. 19].

In analyzing a motion to dismiss under Rule 12(b)(6), a court must determine whether the
complaint is legally and factually sufficient to state a plausible claim for relief. See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007);
Coleman v. Md. Court of Aweals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A court need not accept a complaint's

"legal conclusions, elements of a cause of action, and bare assertions devoid of further factual
enhancement." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 255 (4th Cir.
2009); see Iqbal, 556 U.S. at 678-79. Similarly, a court "need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation
omitted); see Iqbal, 556 U.S. at 678-79.
A "direct cause of action under the [North Carolina] Constitution is permitted only 'in the
absence of an adequate state remedy."' Davis v. Town ofS. Pines, 116 N.C. App. 663, 675, 449
S.E.2d 240, 247 (1994) (quoting Corum v. Univ. ofN.C., 330 N.C. 761, 782,413 S.E.2d 276,289
(1992)); see Craig ex rei. Craig v. New Hanover Cnty. Bd. ofEduc., 363 N.C. 334, 338, 678 S.E.2d
351,354 (2009). In Lee's complaint and amended complaint, Lee alleges three other claims under
North Carolina law against the Town, including negligent use of excessive force, assault and battery,
and negligent supervision. See [D.E. 1, 13]. Simply because the Town has asserted certain
immunities or affirmative defenses in connection with these North Carolina tort claims or because
Lee has not sued the police officer who allegedly shot and wounded him does not mean that Lee is
permitted to pursue a direct claim under theNorth Carolina Constitution against the Town. See, ~,
Maney v. Fealy, No. 1:12CV800, 2013 WL 3779053, at *8-9 (M.D.N.C. July 18, 2013)
(unpublished); J.W. v. JohnstonCnty.Bd. ofEduc.,No. 5:11-CV-707-0,2012 WL4425439,at *17
(E.D.N.C. Sept. 24, 2012) (unpublished); Edwards v. City of Concord, 827 F. Supp. 2d 517,520-24
(M.D.N.C. 2011); Cooper v. Brunswick Cnty. Bd. of Educ., No. 7:08-CV-48-BO, 2009 WL
1491447, at *4 (E.D.N.C. May 26, 2009) (unpublished); Iglesias v. WolforQ, 539 F. Supp. 2d 831,
838-39 (E.D.N.C. 2008); Rousselo v. Starling, 128 N.C. App. 439,448-49,495 S.E.2d 725,731-32
(1998). Furthermore, the Town acknowledges that "it participates in a risk pool which, by law,
would waive governmental immunity as to certain covered claims." [D.E. 19] 3 n.2 (citing
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Defendant's Answer to Amended Complaint~~ 8, 58). Thus, Lee has an adequate state remedy. Cf.
Craig ex rei. Craig, 363 N.C. at 335-36, 678 S.E.2d at 353 (permitting direct claim under North
Carolina Constitution to proceed where "the doctrine of sovereign immunity defeats plaintiffs
common law negligence claim because the [defendant] does not carry insurance that would cover
these claims and, thus, has never waived its immunity for the alleged injury") (footnote omitted);
White v. Cochran, No. COA13-155, 2013 WL 4442285, at *5-8 (N.C. Ct. App. Aug. 20, 2013)
(discussing waiver of governmental immunity via purchase ofliability insurance). Accordingly, the
Town's motion to dismiss count four is granted.
In sum, the court GRANTS defendant's motion to dismiss count four [D.E. 11], and count
four in the amended complaint is DISMISSED. Because the materials adequately describe the legal
issues, plaintiffs motion to file a sur-reply [D.E. 20] is DENIED.
SO ORDERED. This __rt_ day of October 2013.

J
SC.DEVERlli
Chie United States District Judge

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