Wilson v. Fayetteville Police Department

Filing 40

ORDER GRANTING 16 Defendant's Motion to Dismiss for Failure to State a Claim, and DENYING 28 Plaintiff's Motion for Entry of Default. Plaintiff's claims are DISMISSED in their entirety. The clerk is directed to close the file. Signed by US District Judge Terrence W. Boyle on 2/8/2014. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-178-BO

CHRISTOPHER STEWART WILSON,
Plaintiff,
v.

FAYETTEVILLE POLICE
DEPARTMENT,
Defendant.

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ORDER

This matter is before the Court on defendant Fayetteville Police Department's ("FPD")
motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b). [DE 16], and plaintiff
Christopher Wilson's motion for entry of default [DE 28]. The motions are ripe for adjudication.
For the reasons stated herein, plaintiffs motion for entry of default is DENIED, and defendant's
motion to dismiss is GRANTED on other grounds.

BACKGROUND
Pro se plaintiff filed this action on March 12, 2013 alleging damages arising out of
alleged Fourth Amendment violations. Plaintiff alleges that on November 14, 2011, detectives
with the FPD placed a GPS tracking device on plaintiffs automobile without first obtaining a
search warrant. [DE 1 at 2]. Plaintiff states that this act violated his Fourth Amendment rights.
[ld at 3]. Magistrate Judge William A. Webb conducted a frivolity review of plaintiffs

complaint and entered an order on April 16, 2013 allowing plaintiffs suit to proceed. [DE 9]. On
February 3, 2014, in a related criminal case, No. 5:12-CR-353-B0-2, defendant pled guilty to
criminal charges stemming from the alleged unlawful search. [Criminal DE 153].

DISCUSSION
I.

MOTION TO DISMISS.

"The capacity of a governmental body to be sued in the federal courts is governed by the
law of the state in which the district court is held." Avery v. Burke Cnty., 660 F.2d Ill, 113-14
(4th Cir. 1981) (citing Fed. R. Civ. P. 17(b)). Under North Carolina law, "in the absence of
statute, the capacity to be sued exists only in persons in being." McPherson v. First Citizens
Nat 'l Bank, 81 S.E.2d 386, 397 (N.C. 1954). "In North Carolina there is no statute authorizing

suit against a police department." Coleman v. Cooper, 366 S.E.2d 2, 5 (N.C. 1988), overruled in
part on other grounds by Meyer v. Walls, 489 S.E.2d 880 (1997). A municipal police department

is a component part of a city and lacks the capacity to be sued. Id
Courts have routinely found that lawsuits brought against municipal police departments
are not authorized. See e.g. Moore v. City of Asheville, 290 F.Supp.2d 664, 673 (W.D.N.C.
2003), aff'd, 396 F.3d 385 (4th Cir. 2005) (holding in a§ 1983 case that "under North Carolina
law, the Asheville Police Department is not a 'person' and, therefore, lacks the capacity to be
sued."); Ostwalt v. Charlotte-Mecklenburg Bd of Educ., 614 F.Supp.2d 603, 607 (W.D.N.C.
2008) (holding that school board law enforcement department was entitled to dismissal as a
matter of law in § 1983 action because it did not have the capacity to be sued); McCray v.
Chapel Hill Police Dep't, 2008 U.S. Dist. LEXIS 22341, *4 (M.D.N.C. Mar. 19, 2008) aff'd,

289 F. App'x 605 (4th Cir. 2008) (holding that police department did not have the capacity to be
sued in§ 1983 action); Butler v. Tabor City Police Dep't, 2011 U.S. Dist. LEXIS 81794, *6-7
(E.D.N.C. Jul. 255, 2011) (holding that Tabor City Police Department is not a distinct legal
entity capable ofbeing sued in a§ 1983 action).

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Here, the Fayetteville Police Department is not an entity capable of being sued. Therefore
plaintiff fails to state a claim upon which relief may be granted and this action is dismissed.
II.

MOTION FOR ENTRY OF DEFAULT.

Plaintiff filed a motion notifying the Court that he had not yet received an answer, nor a
motion by defendant in this matter. He asked that, if defendant had not responded to this action,
that an entry of default be granted in his favor against defendant. Defendant timely filed a motion
to dismiss on May 17, 2013 and served plaintiff at his last known address. Their attempted
service was returned as undeliverable on June 3, 2013. On June 7, 2013, plaintiff filed a notice of
change of address. Immediately thereupon receiving that information, defendant served plaintiff
at the new address. It is clear to this Court that plaintiff was properly served and that a default
judgment is inappropriate. Plaintiffs motion is denied.
CONCLUSION

For the foregoing reasons, plaintiffs motion for entry of default is DENIED and
defendant's motion to dismiss is GRANTED. Plaintiffs claims are DISMISSED in their entirety.
The clerk is directed to close the file.
SO ORDERED.
This the

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day of February 7, 2014.

TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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