Wilcoxson v. The City of Raleigh, et al

Filing 62

ORDER granting 35 Motion to Dismiss for Failure to State a Claim; denying 41 Motion to Dismiss; granting 54 Motion to Dismiss for Failure to State a Claim; denying plaintiff's requests to amend and adopting 61 Memorandum and Recommendation - Signed by District Judge Louise Wood Flanagan on 08/07/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-732-FL

EMMERLI WILCOXSON
Plaintiff,
v.
THE CITY OF RALEIGH; RALEIGH
POLICE DEPARTMENT; DIANA
PAINTER, individually and in her official
capacity; CHARLES MATTHEWS, II,
individually and in his official capacity;
PHILIP D. MATTHEWS, individually and in
his official capacity; and HARRY DOLAN,
individually and in his official capacity,
Defendants.

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ORDER

This matter comes before the court on the memorandum and recommendation (“M&R”) of
United States Magistrate Judge Robert B. Jones, pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal
Rule of Civil Procedure 72(b), wherein it is recommended that the court grant the motion to dismiss
filed by defendants City of Raleigh (“Raleigh”) and Raleigh Police Department (“RPD”) (DE 35),
grant the motion to dismiss filed by defendant Harry Dolan (“Dolan”) (DE 54), and deny the motion
to dismiss filed by defendant Charles Matthews, II (“C. Matthews”). (DE 41). It is also
recommended that the court deny without prejudice plaintiff’s requests to amend complaint, which
were made in her responses to the motions to dismiss. (DE 40, 6-7; DE 53, 6; DE 59, 7). No
objections to the M&R have been filed, and the time within which to make any objection has
expired. In this posture, the issues raised are ripe for ruling.

Upon a careful review of the M&R, the court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Because no objections have been filed, the court reviews the magistrate judge’s findings and
conclusions only for clear error, and need not give any explanation for adopting the M&R. Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983).
The magistrate judge recommends dismissing plaintiff’s claims against defendants Raleigh
and RPD. This recommendation includes a recommendation to dismiss claims against defendants
Dolan, Diana Painter, C. Matthews, and Philip D. Matthews in their official capacities because these
claims duplicate the claims against defendant Raleigh. The magistrate judge also recommends
dismissing all claims against defendant Dolan, and denying defendant C. Matthews’s motion to
dismiss. Finally, the magistrate judge recommends denying without prejudice plaintiff’s requests
to amend complaint in the event that the court agreed her claims warranted dismissal, as these
requests lacked a formal motion to amend properly supported by memoranda and a proposed
amended complaint.
Upon careful review of the M&R, the court finds the magistrate judge’s analysis to be
thorough, and there is no clear error. The court hereby ADOPTS the recommendation of the
magistrate judge as its own, and, for the reasons stated therein, the motion to dismiss filed by
defendants Raleigh and RPD (DE 35), and the motion to dismiss of defendant Dolan in his
individual capacity (DE 54), are GRANTED. The motion to dismiss of defendant C. Matthews (DE
41) is DENIED. Plaintiff’s requests to amend (DE 40, 53, 59) are DENIED, without prejudice.

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SO ORDERED, this the 7th day of August, 2014.

LOUISE W. FLANAGAN
United States District Court Judge

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