Holder v. Town of Zebulon
ORDER granting 7 Motion to Dismiss for Failure to State a Claim and the complaint is DISMISSED without prejudice to Plaintiff to file an Amended Complaint within 21 days of this order; denying 13 Motion for Speedy Review of Evidence. The parties are reminded to read the order in its entirety for critical deadlines and information. Signed by Senior Judge James C. Fox on 6/24/2014. Copy sent to the plaintiff via US Mail. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
TOWN OF ZEBULON,
This matter is before the court on the Motion to Dismiss [DE-7] filed by Defendant Town
of Zebulon, and the Motion for Speedy Review ofEvidence [DE-13] filed by prose Plaintiff Alice
Holder. For the reasons stated below, the Motion for Speedy Review of Evidence [DE-13] is
DENIED, and Motion to Dismiss [DE-7] is ALLOWED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts, as alleged in the Complaint, are as follows. On or about November 20, 2009,
Plaintiff was involved in an argument at the Rams Food Mart. At least two Zebulon police officers
arrived at Rams Food Mart, in response to a call regarding the argument. One of the officers, Officer
Denny, began to speak with Plaintiff. During this conversation, "Officer B. Lane ... intervened by
forcing Plaintiff, against her will, chest down on the hood of her vehicle." Compl. [DE-1-2] p. 2, ~
6. According to Plaintiff, despite the fact that she was not placed under arrest or given Miranda
warnings, Officer Lane placed her "hands behind her back, by force and against the will of the
Plaintiff, and handcuffed her. !d.
7-8. "Officer Lane then proceeded [to] lift Plaintiff from the
hood of the vehicle by her arms, bringing her to an upright position and proceeded to turn Plaintiff
back over to Officer Denny." !d. ,-r 9. Plaintiff alleges that Officer Lane's actions "exacerbated a preexisting physical condition Plaintiff had relative to her neck and back." !d. ,-r 13. Plaintiff also
alleges that "since 2009, [she] has been subject to unwarranted traffic stops and other forms of
harassment" by the Zebulon police department. !d. ,-r 12. Plaintiff alleges a claim under § 1983,
asserting that Lane lacked probable cause to arrest her, and that his physical actions against her were
perpetrated "intentionally, in bad faith, or with a reckless indifference that his actions would cause
harm to Plaintiff." !d. ,-r,-r 14-18. Plaintiffs claim is asserted solely against Defendant, The Town of
Plaintiff, then represented by counsel, commenced a civil action in the Superior Court of
Wake County on November 19, 20 12, by filing and having approved by the clerk an Application and
Order Extending Time to File Complaint, pursuant to Rule 3(a) of the North Carolina Rules of Civil
Procedure. 1 The clerk's order allowed Plaintiff until December 9, 2012, to file her complaint.
Plaintiffs then-counsel filed the complaint one day past the deadline set forth in the clerk's order,
December 10, 2012. AN otice ofVoluntary Dismissal Without Prejudice was filed in the state court
action on December 19,2012.
Plaintiff, now proceeding prose, initiated the instant action by filing the Complaint in the
Superior Court ofWake County on December 11,2013. Defendant filed a Notice ofRemoval [DE1] in this court on January 10, 2014, pursuant to 28 U.S.C. § 1441, asserting federal question
Defendant set forth this procedural history in its Memorandum in Support oflts Motion to Dismiss [DE-8],
but did not attach any documents or records to support its recitation. Plaintiff, in response to the Motion to
Dismiss, has provided the state court documents supporting this procedural history. See State Court
jurisdiction. Four days later, Defendant filed the Motion to Dismiss, arguing that Plaintiffs claims
are barred by the statute of limitations, and that she has failed to state claim.
After the Motion to Dismiss was fully briefed, Plaintiff filed a Motion for Speedy Review
of Evidence, attaching 121 pages of documentation purportedly supporting her claims against the
Town of Zebulon.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to challenge the sufficiency of
the allegations in the complaint. A motion to dismiss under this rule determines only whether a
claim is stated on the facts alleged; "it does not resolve contests surrounding the facts, the merits of
a claim, or the applicability pf defenses." Republican Party v. Martin, 980 F .2d 943, 952 (4th Cir.
1992). In order to survive a motion to dismiss, the complaint must contain "sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating
whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiffl,]" but does not consider "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). Nor does the court accept as
true '"unwarranted inferences, unreasonable conclusions, or arguments."' /d. (quoting Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009)). When considering a
motion to dismiss, the court must keep in mind that" a prose complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551
U.S. at 93 (internal citation omitted). Notwithstanding the courts obligation to liberally construe a
prose plaintiffs allegations, however, the court cannot ignore a clear failure to allege facts which
set forth a claim cognizable in a federal district court. See Weller v. Dep't ofSoc. Servs., 901 F.2d
387,391 (4th Cir. 1990).
Moreover, dismissal is appropriate when the face of the complaint clearly reveals the
existence of a meritorious affirmative defense. See Brooks v. City of Winston-Salem, 85 F .3d 178,
181 (4th Cir.1996); see generally, 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1357 ("A complaint showing that the statute oflimitations has run
on the claim is the most common situation in which the affirmative defense appears on the face of
the pleading," rendering dismissal appropriate). In ruling on a motion to dismiss, the court may take
judicial notice of matters of public record without converting the motion into one for summary
judgment. Clarkv. BASF Salaried Employees' Pension Plan, 329 F. Supp. 2d 694,697 (W.D.N.C.
Defendant argues that Plaintiffs claim is barred by the applicable statute of limitations, and
that she fails to state a claim against Defendant under§ 1983. The court finds Defendant's statute
of limitations argument to be without merit, but agrees with Defendant that Plaintiff has failed to
adequately allege a claim against it.
Plaintiff's § 1983 claim is not barred by the statute of limitations
Rule 3 of theN orth Carolina Rules of Civil Procedure governs the commencement of actions
in North Carolina courts, and does not limit the commencement of actions to the filing of complaint.
N.C. R. Civ. P. 3(a); Hovey v. Fed Emergency Mgmt. Agency, No. 2:07-CV-34-FL, 2008 WL
2113171, at *1 (E.D.N.C. May 19, 2008). Rather, a plaintiff may commence a civil action by
applying for and obtaining an order from the clerk stating the nature and purpose of the action and
permitting the person to file a complaint within 20 days, and having a summons issued therewith
before the limitations period expires. N.C. R.Civ.P. 3(a);see Hovey,2008 WL2113171, at* 1. Under
Rule 3(a), an action is commenced when a summons is issued. N.C. R. Civ. P. 3(a). The rule
expressly provides that "[i]fthe complaint is not filed within the period specified by the clerk's
order, the action shall abate." Id; see Cannon v. Kroger Co., 837 F.2d 660, 661 n.2 (4th Cir.
1998)("[F]ailure to file a full complaint within the 20-day extension period would abate the action.").
North Carolina courts have recognized that in this context, the "word abate means that the action is
utterly dead and cannot be revived except by commencing a new action." Osborne v. Walton, 110
N.C. App. 850, 853, 431 S.E.2d 496, 498 (1993).
Here, Plaintiff alleges a claim arising under§ 1983. It is undisputed that the applicable statute
oflimitations for a§ 1983 claim arising in North Carolina is three years. See Wallace v. Kato, 549
U.S. 384,388 (2007); Nat'!Adver. Co. v. City ofRaleigh, 947 F.2d 1158, 1162 (4th Cir. 1991); N.C.
Gen. Stat.§ 1-52. Moreover, the parties have assumed that the savings provision of Rule 41(a) of
the North Carolina Rules of Civil Procedure applies to§ 1983 actions commenced in North Carolina
state courts. See Cannon v. Exum, 799 F.2d 751, 1986 WL 17225, at *2 (4th Cir. Aug. 13, 1986) (per
curiam) (observing that federal courts should not only apply the analogous state statute oflimitations
for § 1983 claims, but also should apply the state's rule for tolling the statute of limitations, and
concluding that North Carolina Rule of Civil Procedure 41(a)(1) is applicable to§ 1983 claims).
Rule 41 (a)( 1) provides that if a plaintiff voluntarily dismisses a filed action without prejudice, a new
action on the same claim may be filed within one year of the dismissal, even if otherwise barred by
the statute oflimitations. See N.C. R. Civ. P. 41(a).
In this case, Plaintiff alleges that the incident giving rise to her § 1983 claim occurred on
November 20, 2009,2 making November 20,2012, the last date on which Plaintiff could have filed
the claim. Defendant represents, and the record reflects, that on November 19, 2012-one day prior
to the statute of limitations expiring-Plaintiff sought and was granted an order from the clerk for a
20-day extension of time in which to file her complaint, up to and including December 9, 2012.
Additionally, the clerk issued a civil summons, and thereby complied with the requirements of Rule
3 for commencing an action without a complaint.
It also is undisputed that Plaintiff eventually filed the original state court complaint3 on
December 10, 20 12-one day beyond the 20-day extension in the clerk's order. Defendant argues that
the because Plaintiff failed to file her complaint before the extension expired, that action abated in
accordance with the specific language in Rule 3. According to Defendant, Plaintiffs later filing of
a notice of voluntary dismissal on December 19,2012, pursuant to Rule 41(a) of the North Carolina
Rules of Civil Procedure had no impact because the case already had abated. 4
Defendant's argument would be well-taken, if the court could not take judicial notice of the
fact that December 9, 2012, fell on a Sunday. Rule 6(a) of the North Carolina Rules of Civil
Defendant argues that the incident giving rise to Plaintiff's claim occurred on September 16, 2009. The
Complaint, however, alleges that the incident occurred on November 20, 2009. On a motion to dismiss, as
Defendant is aware, the court must accept the well-pleaded factual allegations as true. Defendant offers no
argument as to why this court should disregard Plaintiff's allegation as to date of the incident, nor does
Defendant proffer evidence, such as a matter of public record, of which the court can take judicial notice
without converting this motion to dismiss into a motion for summary judgment. See Phillips v. Pitt Cty. Mem.
Hasp., 572 F.3d 176, 180 (4th Cir. 2009). Accordingly, the court assumes for purposes ofthis motion that
the incident giving rise to Plaintiff's claim occurred on November 20, 2009.
Plaintiff asserts in her response to the motion to dismiss that her then-attorney forged her name on both
the complaint and the subsequent notice of voluntary dismissal. The court does not reach the issue of whether
Plaintiff's signature was forged.
Rule 41 (a)( 1) is important because if the original state court action was still active, the filing of the Notice
of Voluntary Dismissal had the effect of giving Plaintiff until December 19, 2013 tore-file her action. As
the court already has observed, Plaintiff did in fact re-file her action in state court on December 11, 2013.
Procedure provides, in pertinent part, that in computing any period of time allowed by an order of
a court, '"[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday,
or a legal holiday when the courthouse is closed for transactions, in which event the period runs until
the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is
closed for transaction." N.C. Civ.R. P. 6(a). Accordingly, although the clerk's order provided that
Plaintiff had to file her original state court complaint by December 9, 2012, because that date fell
on a Sunday, Plaintiff actually had until December 10,2012, to do so. See Seafare Corp. v. Trenor
Corp., 88 N.C. App. 404,409, 363 S.E. 2d. 643, 648 (1988) (explaining that where plaintiff obtained
an order extending the time to file its complaint until a date that fell on a Sunday, plaintiff had an
extra day to file complaint).
Plaintiffs original state court action, therefore, did not '"abate" within the meaning of Rule
3(a). Defendants' motion to dismiss on the basis of the statute oflimitations is therefore DENIED.
Plaintiff has failed to state a claim against Defendant, a municipality
Plaintiff attempts to assert a claim against Defendant, The Town of Zebulon, for a violation
of§ 1983. A municipality, however, cannot be held liable under§ 1983 on a respondeat superior
theory ofliability. See Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 694 (1978). Rather, to establish
liability of the entity, a plaintiff must allege facts showing that: (1) a government actor deprived the
plaintiff of her federal rights; and (2) the harm was the result of municipal policy or custom. /d.
'"This requirement limits municipal liability under section 1983 to those actions for which the
municipality is actually responsible by distinguishing between acts attributable to the municipality
and acts attributable only to municipal employees." Hill v. Robeson County, 733 F. Supp. 2d 676,
683 (E.D.N.C. 2010)(citingBd. ofCounty Comm 'rs ofBryan Countyv. Brown, 520 U.S. 397,403-
04 (1997) and Riddick v. Sch. Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000)). A policy or
custom for which a local government entity may be held liable may arise in four ways:
( 1) through an express policy, such as written ordinance or regulation; (2) through the
decisions of a person with final policyrnaking authority; (3) through an omission,
such as a failure to properly train officers, that "manifest[s] deliberate indifference
to the rights of citizens"; or (4) through a practice that is so "persistent and
widespread" as to constitute a "custom or usage with the force of law."
Lytle v. Doyle, 326 F.3d 463,471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215,218 (4th
Assuming that Plaintiff has alleged sufficient facts to show a constitutional violation, she
nevertheless has failed to allege any facts which give rise to the inference that the constitutional
violation was a result of a custom or policy of the Town of Zebulon. She fails to allege that an
express policy caused any constitutional violations. She fails to allege that any constitutional
violation was caused by a decision of a person with final policyrnaking authority. She fails to allege
that the Town of Zebulon failed, for example, to properly train its police officers. Finally, she fails
to allege facts showing that a constitutional violation was caused by a widespread practice amounting
to a custom of the Town of Zebulon. In sum, Plaintiff has failed to allege a § 1983 claim against
Defendant. Defendant's Motion to Dismiss for failure to state a claim is therefore ALLOWED.
The court is cognizant that it has the discretion to dismiss a claim with or without prejudice,
and where a defect in the complaint is curable, a claim should be dismissed without prejudice, even
if the court has doubts that a plaintiff will be able to overcome the defects. See Ostrzenski v. Seigel,
177 F .3d 245, 252-53 (4th Cir. 1999) (explaining that ordinarily a court, when ruling on a motion
to dismiss, should allow a plaintiff to file at least one amended complaint " 'regardless of how
unpromising the initial pleading appears because except in unusual circumstances it is unlikely that
the court will be able to determine conclusively on the face of a defective pleading whether plaintiff
can actually state a claim' ") (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE & PROCEDURE§ 1357, at 360-67 (2d ed 1990)). Here, the court cannot say on the record
before it that defects in the present complaint are incurable. Accordingly, Plaintiffs Complaint is
DISMISSED without prejudice to Plaintiff to file an Amended Complaint within twenty-one days
of the filing date of this Order. lfPlaintifffails to file an amended complaint within that time period,
the court will, without further notice, issue an order dismissing this case with prejudice. If, however,
Plaintiffs do file an amended complaint within that time period, Defendants may file an answer or
other responsive motion within the time period allowed by the Federal Rules of Civil Procedure and
the Local Rules.
Motion for Review of Evidence
Plaintiff has submitted over 121 pages of documents to the court, in support of her Motion
for Speedy Review of Evidence [DE-13]. The court finds that the review of evidence to be
premature at this juncture, and Plaintiffs motion is therefore denied.
For the foregoing reasons, Defendant's Motion to Dismiss [DE-7] is ALLOWED, and
Plaintiffs Complaint is DISMISSED without prejudice to Plaintiff to file an Amended Complaint
within twenty-one days of the filing date of this Order. lfPlaintifffails to file an amended complaint
within that time period, the court will, without further notice, issue an order dismissing this case with
prejudice. If, however, Plaintiff does file an amended complaint within that time period, Defendant
may file an answer or other responsive motion within the time period allowed by the Federal Rules.
Plaintiffs Motion for Speedy Review of Evidence [DE-13] is DENIED.
This the ;?t:_ day of June, 2014.
ior United States District Judge
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