Coulter v. Estate of Edward W. Grannis Jr. et al

Filing 50

ORDER denying without prejudice 17 Motion to Dismiss for Lack of Jurisdiction; denying without prejudice 19 Motion to Dismiss for Lack of Jurisdiction; denying without prejudice 34 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction; granting 39 Motion for Extension of Time to File Response; denying 27 Motion to Dispense with Mediation. Plaintiff is hereby DIRECTED to file an amended complaint not later than December 9, 2016. Plaintiff is further DIRECT ED to effect proper service on defendants Estate of Grannis and Russ not later than December 16,2016. Signed by District Judge Terrence W. Boyle on 11/22/2016. Counsel is reminded to read the order in its entirety for important information. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-277-BO

DARRYL EUGENE COULTER, SR.,
Plaintiff,

v.
THE ESTATE OF EDWARD W.
GRANNIS, JR., in his individual and
official capacity; MARGARET (BUNTIE)
RUSS, in her individual and official
capacity; CUMBERLAND COUNTY
SHERIFF EARL R. BUTLER, in his
individual and official capacity; ENNIS
WRIGHT, in his individual and official
capacity; MICHAEL B. EAST, Assistant
Special Deputy in Charge, in his individual
and official capacity; ROBIN
PENDERGRAFT, in her individual and
official capacity; and NORTH CAROLINA
STATE BUREAU OF INVESTIGATION;
Defendants.

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ORDER

This cause comes before the Court on two motions to dismiss by defendants. Plaintiff
has responded, defendants have replied, and a hearing was held on the motions before the
undersigned on November 9, 2016, at Raleigh, North Carolina. The motions are ripe for ruling,
and, for the reasons discussed below, they are denied without prejudice.
BACKGROUND
Plaintiff, a former Sergeant with the Spring Lake Police Department, filed this action in
Cumberland County Superior Court seeking legal and equitable relief under the North Carolina
Constitution, the law and common law of the State ofNorth Carolina, 42 U.S.C. § 1983, 42

U.S.C. § 1985, and the United States Constitution from the wrongful acts and omissions of
defendants in causing baseless but serious criminal charges to be brought against plaintiff.
Plaintiff alleges that as a result of these baseless charges he was stripped of his badge, arrested
and imprisoned in Central Prison for a period of approximately ten months, without cause or
justification. All charges against plaintiff were eventually dismissed.
Plaintiffhas named the following persons as defendants: the Estate of Edward Grannis
former District Attorney; Margaret Russ, an Assistant District Attorney; Cumberland County
Sheriff Earl Butler; Chief Deputy of the Cumberland County Sheriff's Office Ennis Wright;
Michael B. East, Assistant Special Agent in Charge with the North Carolina State Bureau of
Investigation (SBI); Robin Pendergraft, Director of the SBI; and the SBI. 1 Plaintiff's complaint
discusses two instances in 2008 in which he alleges that while on duty he appropriately
responded to complaints by citizens concerning alleged criminal activity promptly and according
to Spring Lake Police Department procedure, and that such incidents were turned against him by
defendants and used to create charges for which he would never be brought to trial. Plaintiff was
indicted in Cumberland County on May 4, 2009, for felonious breaking and entering/second
degree kidnapping, felonious obstruction of justice/simple assault, assault with a deadly weapon,
assault by pointing a gun, false imprisonment, and willful failure to discharge duties; these
charges allegedly arose from the two incidents which plaintiff has identified in his complaint.
Plaintiff alleges that defendants Grannis, Russ, Butler, Wright, East, Pendergraft, and the SBI, in
fact arrested plaintiff in retaliation for his refusal to assist defendant Grannis and his network in
building criminal cases against a list of state, county, and local African American officials and

1

Plaintiff also named the Spring Lake Police Department as a defendant. This defendant was
dismissed voluntarily by plaintiff. [DE 40].
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business owners. The charges against plaintiff were dismissed by the Assistant District Attorney
on April15, 2013, nearly four years after plaintiffs indictment, without meaningful explanation.
Defendants removed plaintiffs action to this Court on May 19,2016, pursuant to its
federal question jurisdiction. 28 U.S.C. §§ 1331; 1441. Thereafter the instant motions were filed
by two groups of defendants - the district attorney defendants and the SBI defendants. The
remaining defendants have answered the complaint.
DISCUSSION
The allegations in plaintiffs complaint themselves are troubling. Moreover, counsel for
plaintiff provided additional detail regarding the allegations in plaintiffs complaint at the
hearing before the undersigned. In light ofthose statements, the Court in its discretion and in
conformance with the liberal requirements ofRule 15 ofthe Federal Rules of Civil Procedure
directs plaintiff, sua sponte, to file an amended complaint to conform to the additional
allegations provided at the hearing. In so doing, the Court recognizes that plaintiffs complaint
was filed in state court where he anticipated review under a different standard from that
applicable here.
Additionally, defendants Estate of Grannis and Russ have raised a defense of insufficient
service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. The Court
will afford plaintiff an opportunity through and including December 16, 2016, to effect proper
service on these defendants pursuant to Rule 4 ofthe Federal Rules of Civil Procedure.
CONCLUSION
Plaintiff is hereby DIRECTED to file an amended complaint not later than December 9,
2016. Plaintiff is further DIRECTED to effect proper service on defendants Estate of Grannis
and Russ not later than December 16,2016. In light of the foregoing, the motions to dismiss

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[DE 17, 19, 34] are DENIED WITHOUT PREJUDICE with permission tore-file and
incorporate any argument by reference after the filing of plaintiffs amended complaint.
Plaintiffs motion for extension of time to respond [DE 39] is GRANTED and plaintiffs
response is deemed timely filed. The motion to dispense with mediation [DE 27] is DENIED.

SO ORDERED, this Uday ofNovember, 2016.

UNITED STATES DISTRICT JUDGE

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