Troyano, et al. v. Kirkland, et al.

Filing 35

ORDER granting in part and denying in part 16 Motion to Dismiss. The parties are further DIRECTED to confer and present to the Court not later than April 17, 2017, a plan for consolidation and management of all pending cases in this Court arising from this incident. Signed by US District Judge Terrence W. Boyle on 3/28/2017. (Stouch, L.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

)
)
)
)
v.
)
THE TOWN OF LILLINGTON, DAVID
)
)
KIRKLAND and SOONAOSO J. LETULI, both
Individually and in their Official Capacity as Police )
Officers for the Town of Lillington,
)
Defendants.
)

AUTUMN ZIMMER and JEFF ZIMMER,
Plaintiffs,

No. 5:16-CV-892-BO

and

)
)
)
)
)
v.
)
THE TOWN OF LILLINGTON, DAVID
)
KIRKLAND and SOONAOSO J. LETULI, both
)
Individually and in their Official Capacity as Police )
)
Officers for the Town of Lillington,
Defendants.
)

MARINA TROY ANO and MICHELLE
TROYANO,
Plaintiffs,

No. 5:16-CV-893-BO

ORDER

This cause comes before the Court on defendants' partial motions to dismiss certain
claims in plaintiffs' complaints. The appropriate responses have been filed 1, and the motions are
ripe for ruling. A hearing was held before the undersigned on February 23, 2017, at Raleigh,

1

Defendants notified the Court of their intent not to reply to plaintiffs' responses.

'

.
North Carolina and, for the reasons discussed below, defendants' motions are granted in part and
denied in part.
BACKGROUND
On November 10, 2013, plaintiffs were riding in a car driven by Mitchell Shane Gamer
on North Carolina Highway 421 North, heading toward the town of Lillington in Hamett County,
North Carolina. Gamer drove through a purported 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 Gamer with no safe way to
stop the car. Plaintiffs also contend the officers may have made contact with the rear of Gamer's
vehicle. Either way, Gamer's vehicle crashed into a tree, causing serious injuries to plaintiffs
Autumn Zimmer and Marina Troyano. These cases are companion cases to an earlier filed
action by the Estate of Austin Ferrell, No. 5:15-CV-677-BO (E.D.N.C.); Austin Ferrell was also
a passenger in Gamer's vehicle and was killed as a result of the collision.
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

2

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. JD. 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.
The Zimmer and Troyano plaintiffs bring claims for assault and battery, gross negligence,
violations their Fourth, Fifth, Sixth, and Fourteenth Amendment rights under 42 U.S.C. § 1983,
and damages for personal injuries. In their motions to dismiss, defendants seek dismissal of
plaintiffs' § 1983 claims against the Town of Lillington for failure to allege a plausible claim
based on a theory of municipal policy or custom, dismissal of all claims against Kirkland and
Letuli in their official capacities as duplicative of the claims against the Town, and dismissal of
all claims against Kirkland and Letuli in their individual capacities for failure to plead sufficient
acts. Defendants do not seek dismissal of plaintiffs' § 1983 claims against the Town of
Lillington for the conduct of Kirkland and Letuli in their official capacity or the assault and
battery and gross negligence claims against the Town of Lillington.
As noted by plaintiffs, the facts and claims alleged are nearly identical in all three
companion cases, and this Court has previously considered defendants' Rule 12(b)(6) challenge
to the pleadings and denied in substantial part their motion. 2 See Ferrell v. Town of Lillington,
No. 5:15-CV-677-BO (E.D.N.C. June 13, 2016). Accordingly, the Court ADOPTS its holding in
the Ferrell case insofar as it applies to the claims raised in these cases and incorporates its
discussion provided in the Ferrell order as if fully set out herein. The single argument identified
2

The complaint in the Ferrell case included claims and parties not alleged in the Zimmer and
Troyano complaints.
3

by defendants at the hearing as not having been raised in their Ferrell motion relates to the
sufficiency of the individual capacity claims against Kirkland and Letuli. Specifically,
defendants argue that in order to be found individually liable plaintiffs must and have failed to
sufficiently allege that Kirkland and Letuli acted outside the scope of their official duties or that
their conduct was malicious or corrupt.
The Court finds that at this stage of the proceedings plaintiffs' complaints allege
sufficient facts to state claims for relief against Kirkland and Letuli in their individual capacities.
The conduct complained of is sufficient to put defendants on notice that plaintiffs' allegations of
wanton and reckless conduct, which arguably fell outside the scope of defendants' official duties,
leads plaintiffs to seek recovery from not only the Town but also from defendants Kirkland and
Letuli directly. See, e.g. Cmp.

~~

24-25; see also Meyer v. Walls, 347 N.C. 97, 110 (1997) ("The

crucial question for determining whether a defendant is sued in an individual or official capacity
is the nature of the relief sought, not the nature of the act or omission alleged.") (citation
omitted). Accordingly, plaintiffs may proceed with their individual capacity claims, leaving to
be resolved at a later date whether qualified or public officer immunity applies. Stewart v. North

Carolina, 393 F.3d 484, 491 (4th Cir. 2005).
CONCLUSION
For the foregoing reasons, the partial motions to dismiss are GRANTED IN PART AND
DENIED IN PART. [DE 18 in Zimmer and DE 16 in Troyano]. The following claims in
plaintiffs' complaints remain: assault and battery, gross negligence, and § 1983 claims against
the Town of Lillington both for the conduct of Kirkland and Letuli and for municipal policy or
custom. Plaintiffs' claims against Kirkland and Letuli in their individual capacities may also

4

proceed. The claims against Kirkland and Letuli in their official capacities are DISMISSED as
duplicative of plaintiffs' claims against the Town of Lillington.
The parties are further DIRECTED to confer and present to the Court not later than April
17, 2017, a plan for consolidation and management of all pending cases in this Court arising
from this incident.

SO ORDERED, this ~ay of March, 2017.

r~i/.&·~.h
TERRENCE W. BOYLE
~ .
UNITED STATES DISTRICT JUDGE

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