Aikens v. Ingram et al

Filing 50

ORDER GRANTING 33 Defendants' Motion for a Decision on Defendants' Remaining Grounds for Dismissal. Defendants' motion to dismiss the plaintiff's Fourth Amendment claim for failure to state a claim is DENIED. The defendants&# 039; motion to dismiss the plaintiff's state law claim for invasion of privacy is DENIED AS MOOT. Defendants' motion to dismiss on immunity grounds is DENIED WITHOUT PREJUDICE with leave to reassert at the summary judgment stage of the proceeding. Signed by US District Judge Terrence W. Boyle on 2/3/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:11-CV-371-BO

FREDERICK AIKENS,

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Plaintiff,
V.

WILLIAM E. INGRAM, JR., individually
and in his capacity as Adjutant General of
the NORTH CAROLINA ARMY
NATIONAL GUARD and PETER VON
JESS, individually and in his capacity as
Lieutenant Colonel of the NORTH
CAROLINA NATIONAL GUARD

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Defendants.

ORDER

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This cause comes before the Court on defendants' motion for a decision on the remaining
grounds raised in their motion to dismiss filed on September 2, 2011. For the reasons discussed
below, defendants' motion for decision is granted and defendants' remaining grounds for
dismissal are denied.
BACKGROUND
Both the factual and procedural background of this matter have been recounted several
times in several decisions, both by this Court and the court of appeals. The Court therefore
incorporates by reference its discussion included in its order entered February 27, 2012. Since
that time, the court of appeals has reversed the Court's order dismissing plaintiffs complaint as
beyond the statute of limitations. Once the matter was returned to this Court, defendants filed an
answer and a scheduling order was entered setting deadlines for discovery as well as the time for

filing dispositive motions. Three months after the Fourth Circuit's mandate had issued,
defendants filed the instant motion, asking the Court to rule on their remaining grounds for
dismissal and, a month later, filing a supplemental memorandum in support. Plaintiff has
responded, opposing defendants' grounds for filing a supplemental memorandum and
incorporating by reference his responses to defendants' original motion to dismiss.
DISCUSSION

Defendants have moved to dismiss plaintiffs complaint for failure to state a claim upon
which relief can be granted pursuant to Rule 12(b)( 6) of the Federal Rules of Civil Procedure. A
Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Attain, 478 U.S.
265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should
accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts
plead "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged"; mere recitals of the elements of a cause of action supported by conclusory
statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

I.

SUFFICIENCY OF PLAINTIFF'S COMPLAINT, GENERALLY

Defendants first challenge the sufficiency of plaintiffs complaint. Specifically,
defendants contend that plaintiff has failed to state a claim under 42 U.S. C. § 1983 for violation
of the Fourth Amendment because plaintiff had no reasonable expectation of privacy in his
emails and plaintiff consented to the search of his emails. The Court has considered the

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allegations in plaintiffs complaint in light of the applicable standard and finds that dismissal of
his Fourth Amendment claim is not warranted at this stage. Plaintiff has alleged that he had an
expectation of privacy in the emails he sent and that, while he was on active duty, unauthorized
members of the North Carolina National Guard unlawfully accessed, or hacked, plaintiffs email
communications. These and the remaining allegations are sufficient to nudge plaintiffs Fourth
Amendment claim across the line from conceivable to plausible, Twombly, 550 U.S. at 570, and
thus defendants' motion to dismiss this claim is denied.
Plaintiff has clarified in his response to defendants' motion to dismiss that he has not
brought a state law claim for invasion of privacy. [DE 10 at 20]. Defendants' motion to dismiss
this claim is therefore denied as moot.

II.

DEFENSES OF SOVEREIGN AND QUALIFIED IMMUNITY

Defendants next raise in their motion defenses of Eleventh Amendment sovereign
immunity and qualified immunity. The Court finds that these defenses would be better
addressed once the record in this matter has been developed and relevant facts have had an
opportunity to be discovered. Accordingly, the Court denies without prejudice defendants'
motion to dismiss as it relates to their immunity defenses and will reconsider such defenses at the
summary judgment stage. In so doing, the Court is mindful that a ruling on immunity defenses
should be made early in the proceedings in order to avoid the burdens of litigation, see e.g.
Pearson v. Callahan, 129 S.Ct. 808, 815 (2009), but in this particular instance and in light of

both the prior proceedings and the current posture of the case, as well as defendants' delay in
seeking such ruling, the Court finds that its resolution of these issues would be better made after
further development of the record.

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It is also for these reasons that the Court declines to consider defendants' newly raised

argument regarding the Feres-Mindes doctrine at this stage. Defendants may raise such issue at
the dispositive motion filing stage if appropriate.
CONCLUSION
Accordingly, for the reasons discussed above, defendants' motion for a decision on
defendants' remaining grounds for dismissal [DE 33] is GRANTED. Defendants' motion to
dismiss plaintiff's Fourth Amendment claim for failure to state a claim is DENIED, their motion
to dismiss plaintiff's state law claim for invasion of privacy is DENIED AS MOOT, and
defendants' motion to dismiss on immunity grounds is DENIED WITHOUT PREJUDICE with
leave to reassert at the summary judgment stage of proceeding.

SO ORDERED, this

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day of February, 2014.

UNITED STATES DISTRICT

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DGE