Ferrell, et al. v. The Town of Lillington, et al.

Filing 27

ORDER granting in part and denying in part 17 Motion to Dismiss. Traci Ferrell as administrator of the estate of AustinFerrell is the sole plaintiff moving forward, and the claims for which she will be plaintiff include: assault and battery, § ; 1983 against the Town of Lillington, § 1983 against the officer defendants in their individual capacities, and wrongful death. Plaintiffs Austin Stewart Ferrell, Jamie Ferrell, and Traci Ferrell in her individual capacity are hereby terminated as parties to the action, as is defendant Lillington Police Department. Signed by District Judge Terrence W. Boyle on 6/13/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:15-CV-677-BO
AUSTIN STEWART FERRELL, JAMIE
FERRELL, and TRACI FERRELL, individually
and as administrator ofthe ESTATE OF AUSTIN
STEWART FERRELL,
Plaintiff,
v.
THE TOWN OF LILLINGTON, LILLINGTON
POLICE DEPARTMENT, DAVID KIRKLAND
and SOONAOSO J. LETULI, both individually
and in their official capacities,
Defendants.

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ORDER

This cause comes before the Court on defendants' partial motion to dismiss. The
appropriate responses and replies have been filed, and the matter is ripe for ruling. For the
reasons discussed below, defendants' motion is GRANTED IN PART AND DENIED IN PART.
[DE 17].
BACKGROUND
On November 10, 2013, plaintiff Austin Stewart Ferrell was riding in a car driven by a
Mitchell Shane Gamer on North Carolina Highway 421 North, heading toward the town of
Lillington in Harnett County, North Carolina. Garner drove through a checkpoint that Lillington
Police Department Officers David Kirkland and Soonaoso Letuli were attempting to conduct.
Plaintiffs contend there were numerous problems with the execution of the checkpoint. When
Gamer drove through, Kirkland and Letuli began pursuing his vehicle at a high rate of speed
down Neill's Creek Road. Plaintiffs contend the manner of the chase rendered Garner with no
safe way to stop the car. Plaintiffs also contend the officers may have made contact with the rear

of Garner's vehicle. Either way, Garner's vehicle crashed into a tree, causing the death of Austin
Ferrell.
DISCUSSION
A Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be
granted challenges the legal sufficiency of a plaintiffs complaint. Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009). When ruling on the motion, the court "must accept as true all of
the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although complete and
detailed factual allegations are not required, "a plaintiffs obligation to provide the 'grounds' of
his 'entitle[ment] to relief requires more than labels and conclusions." Twombly, 550 U.S. at 555
(citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). Similarly, a court need not accept as true a plaintiffs "unwarranted
inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. J.D. Assocs. Ltd.,
213 F.3d 175, 180 (4th Cir. 2000). A trial court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550 U.S. at 555.
Here, plaintiffs, decedent Austin Ferrell and his parents, Jamie Ferrell and Traci Ferrell
(who is a plaintiff in her individual capacity and as administrator of Austin's estate), brought
claims of assault and battery, violations of 42 U.S.C. § 1983, violations of the North Carolina
Constitution, intentional infliction of emotional distress, and damages for the wrongful death of
Austin. Defendants move to dismiss certain claims. The Court will now address the proper
parties to the suit and each of plaintiffs' claims.

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I.

Lillington Police Department
Before addressing the substantive claims, the Court will consider whether the Lillington

Police Department (LPD) is a proper defendant. The Court finds that it is not. "Unless a statute
provides to the contrary, only persons in being may be sued. In North Carolina there is no statute
authorizing suit against a police department. The Police Department is a component part[] of
defendant City ... and as such lack[s] the capacity to be sued." Coleman v. Cooper, 366 S.E.2d
2, 5 (N.C. Ct. App. 1988) (internal citations omitted); see also Moore v. City ofAsheville, 290 F.
Supp. 2d 664, 673 (W.D.N.C. 2003), affd, 396 F.3d 385 (4th Cir. 2005) (dismissing claims
against city police department for lack of capacity to be sued); Wilson v. Fayetteville Police

Dep't, 2014 U.S. Dist. LEXIS 17071, *2 (E.D.N.C. Feb. 8, 2014) ("Courts have routinely found
that lawsuits brought against municipal police departments are not authorized."). Moreover,
plaintiffs have not alleged any basis of liability against this defendant. Accordingly, the LPD is
an improper defendant and will be terminated as such.
II.

Assault and Battery
The Court begins with plaintiffs' claim of assault and battery. "The gist of an action for

assault is apprehension of harmful or offensive contact" and "[t]he gist of an action for battery is
the absence of consent to ... contact on the part of the plaintiff." Wilson v. Bellamy, 105 N.C.
App. 446, 465 (N.C. Ct. App. 1992) (internal quotation marks omitted) (internal citations
omitted). The Court finds that sufficient facts support a claim for assault and battery to survive
the motion to dismiss standard. The alleged aggressive chase tactics used by defendant officers
supports an argument of "apprehension of harmful or offensive contact," while the nature of the
crash supports the claim that any harmful contact decedent encountered as a result of the chase

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was certainly without consent. Accordingly, the motion to dismiss the assault and battery claim
is denied.
III.

42 U.S.C. § 1983
Plaintiffs' complaint also contains a cause of action pursuant to 42 U.S.C. § 1983. "To

prevail on a § 1983 claim, [plaintiffs] must show that (1) they were deprived of a federal
statutory or constitutional right; and (2) the deprivation was committed under color of state law."

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). The Court will address this claim as it relates
to each remaining defendant.
a. § 1983 Claim Against Town of Lillington
The Supreme Court has determined that § 1983 applies to local governments. Monell v.

New York City Dept. ofSoc. Servs., 436 U.S. 658, 690 (1978). However, this application is not
without limits. Indeed, "a local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents." Id. at 694. In other words, there is no respondeat superior
liability under§ 1983. Instead, "it is when execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible under§ 1983."

!d.
A policy or custom for which a municipality may be held liable can arise in four ways:
(1) through an express policy, such as a written ordinance or regulation; (2) through the
decisions of a person with final policymaking 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, 326 F.3d at 471 (internal quotation marks omitted). To succeed against a municipality, a
§ 1983 plaintiff must demonstrate that the custom or policy is the "moving force" behind the
alleged violation. City ofCanton v. Harris, 489 U.S. 378, 389 (1989).

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Here, plaintiffs allege violations of their Fourth, Fifth, Sixth, and Fourteenth Amendment
rights under the United States Constitution at the hands of defendants, who were acting under
color of state law. The Court finds plaintiffs have sufficiently alleged that a failure to train
officers on proper checkpoint and chase protocols as well as the alleged lack of policy on proper
checkpoint and chase techniques suffice to state a claim upon which relief can be granted as
omissions that manifest deliberate indifference to the rights of citizens. See Lytle, 236 F.3d at
471. Accordingly, the § 1983 claim against the Town of Lillington survives the motion to
dismiss.
b. § 1983 Claim Against Officers in Official Capacities
"Suits against public officers in their official capacities actually raise claims against the
entity for which the officer works." Anderson v. Caldwell County, 524 Fed. Appx. 854, 856 n.1
(4th Cir. 2013) (unpublished) (per curiam); see also Ky v. Graham, 473 U.S. 159, 166 (1985)
("Official-capacity suits, in contrast, 'generally represent only another way of pleading an action
against an entity ofwhich an officer is an agent."') (quoting Monell v. New York City Dept. of

Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Accordingly, the Court hereby dismisses the official
capacity suits against the LPD officers as duplicative of the claims against the Town of
Lillington. As discussed above, the claim against the Town of Lillington survives.
c. § 1983 Claim Against Officers in Individual Capacities
Defendants move to dismiss the § 1983 claim against the officers in their individual
capacities on fairly narrow grounds: that the complaint should only be considered as containing
claims against the officer defendants in their official capacities.
"When a plaintiff does not allege capacity specifically, the court must examine the nature
of the plaintiffs claims, the relief sought, and the course of proceedings to determine whether a

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state official is being sued in a personal capacity." Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir.
1995). As a foundational matter, the Court notes that plaintiffs here do allege capacity
specifically. Plaintiffs have sued the LPD officers in their official and individual capacities.
Nevertheless, defendants allege that the claims against the officers are actually only in their
official capacities.
First, defendant argues "there are no factual allegations or assertions in the body of the
complaint that indicate Plaintiffs' [sic] seek redress against the Officers individually." [DE 17-1].
The Court finds that the complaint contains ample reference to the actions of Officers Kirkland
and Soonaoso, most saliently in the discussion of the alleged shortcomings of the checkpoint and
the pursuit strategy employed by these two officers. Defendants also move to dismiss this claim
because of the references in the complaint to the officers at issue acting in their official capacities
as LPD officers. The Court recognizes that this language is contained in the complaint but does
not find that it constitutes grounds for dismissal at this early stage for several reasons. First,
plaintiffs also brought the suit against the officers in their official capacities. Second, the Court
believes it is difficult to parse, as written, whether plaintiffs were simply trying to establish that
defendants were employed as LPD officers when they performed the actions in question.
The Court also notes that plaintiffs seek punitive damages. The Fourth Circuit has held
that "[a]nother indication that suit has been brought against a state actor personally may be a
plaintiffs request for compensatory or punitive damages, since such relief is unavailable in
official capacity suits." Biggs, 66 F.3d at 61.
Finally, the Court is cognizant that
when as here, a Rule 12(b)( 6) motion is testing the sufficiency of a civil rights complaint,
[it] must be especially solicitous ofthe wrongs alleged and must not dismiss the
complaint unless it appears to a certainty that the plaintiff would not be entitled to relief
under any legal theory which might plausibly be suggested by the facts alleged."
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Edwards v. City of Goldsboro, 178 F .3d 231, 244 (4th Cir. 1999) (internal quotation marks
omitted) (emphasis in original). At this stage, and on the facts alleged, the Court is unwilling to
find that this civil rights claim would not be entitled to relief. Being especially solicitous of the
wrongs alleged, the Court finds that the existence of an individual capacity claim is plausibly
suggested. Accordingly, the Court refuses to dismiss it.
IV.

Violations of the North Carolina Constitution
In the complaint, plaintiffs allege violations of their constitutional rights under the North

Carolina Constitution. "To assert a direct constitutional claim ... a plaintiff must allege that no
adequate state remedy exists to provide relief for the injury." Copper v. Denlinger, 363 N.C. 784,
788 (N.C. 2010); see also Corum v. Univ. ofNorth Carolina, 330 N.C. 761,782 (1992) ("[I]n the
absence of an adequate state remedy, one whose state constitutional rights have been abridged
has a direct claim against the State under our Constitution."). In other words, to proceed on a
state constitutional violation claim, a plaintiff must demonstrate that there is no other adequate
remedy under state law.
Here, plaintiffs have not attempted to do so. Moreover, in their response to defendants'
motion to dismiss, plaintiffs seem to abandon this claim. [DE 22] ("[Plaintiffs] have stated valid
legal claims with facts sufficient to support the existence of wrongful death, assault and battery,
and civil rights violations under§ 1983."). As plaintiffs have not demonstrated a lack of
adequate state remedies and appear to have abandoned the North Carolina constitutional claim
accordingly, the Court hereby dismisses this claim.
V.

Intentional Infliction of Emotional Distress
Plaintiffs have also brought a cause of action for intentional infliction of emotional

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distress. The Court notes that plaintiffs, in their response to the instant motion to dismiss, also
appear to have abandoned this claim. [DE 22] ("[Plaintiffs] have stated valid legal claims with
facts sufficient to support the existence of wrongful death, assault and battery, and civil rights
violations under§ 1983."). Moreover, the Court finds that the claim for intentional infliction of
emotional distress is a "[t]hreadbare recital[] of the elements of a cause of action, supported by
mere conclusory statements," and, as such, cannot survive a motion to dismiss. Twombly, 550
U.S. at 555. For these reasons, the claim of intentional infliction of emotional distress is hereby
dismissed.
VI.

Wrongful Death
Defendants have not moved to dismiss this claim.

VII.

Proper Plaintiff

Pursuant to North Carolina law, Traci Ferrell as administrator of Austin's estate is the
only proper plaintiff for the claims moving forward. 1 See N.C.G.S. §28A-18-1, 2, 3. North
Carolina law states that "[u]pon the death of any person, all demands whatsoever, and rights to
prosecute or defend any action or special proceeding, existing in favor of or against such person .
. . shall survive to and against the personal representative or collector of the person's estate" and
"must be brought by or against them in their representative capacity." N.C.G.S. § 28A-18-1, 3.
As to the wrongful death claim specifically, the decedent's personal representative is again the
only proper plaintiff. See Brendle v. Gen. Tire & Rubber Co., 408 F.2d 116, 118 (4th Cir. 1969)
("Under North Carolina ... law, the decedent's personal representative is the proper party
plaintiff in a wrongful death action."); see also Graves v. Welborn, 260 N.C. 688, 690 (N.C.
1963) ("The right of action for wrongful death is purely statutory. It may be brought only by the
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The Court need not and does not decide whether the other plaintiffs would have been proper for
the claims that have been dismissed.

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executor, administrator, or collector of the decedent." (internal quotation marks omitted)).
Accordingly, Traci Ferrell in her capacity as administrator of Austin's estate will be the only
plaintiff moving forward.
CONCLUSION
For all the reasons discussed above, the partial motion to dismiss is GRANTED IN
PART AND DENIED IN PART. [DE 17]. Traci Ferrell as administrator ofthe estate of Austin
Ferrell is the sole plaintiff moving forward, and the claims for which she will be plaintiff
include: assault and battery, § 1983 against the Town of Lillington, § 1983 against the officer
defendants in their individual capacities, and wrongful death. Plaintiffs Austin Stewart Ferrell,
Jamie Ferrell, and Traci Ferrell in her individual capacity are hereby terminated as parties to the
action, as is defendant Lillington Police Department.

SO ORDERED, this

1J_ day of June, 2016.

~·+U-1' u
:ENCE W. BOYL~

A1- q.

UNITED STATES DISTRICT JUDGE

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