Alston v. Wake Med Hospital et al
Filing
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ORDER granting 15 Motion to Dismiss. Signed by US District Judge Terrence W. Boyle on 9/22/2018. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:18-CV-118-BO
THELMA MARIE ALSTON,
Plaintiff,
v.
J.A. PRIVETTE, et al.,
Defendants.
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ORDER
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This matter comes before the Court on defendants' motion to dismiss. [DE 15]. It has
been fully briefed and is ripe for disposition. For the reasons discussed below, defendants'
motion to dismiss is GRANTED.
BACKGROUND
Plaintiff, Thelma Marie Alston, was terminated from her position as housekeeper at
defendant WakeMed on March 24, 2015, after she was arrested and charged with misdemeanor
larceny of a hospital patient's "Kindle" e-reader. [DE 2, iii! 17-23, 27]. Just over three years
later, on March 27, 2018, plaintiff initiated this suit against WakeMed and four individual
defendants: J.A. Privette, an officer with the WakeMed campus police who conducted the
investigation that resulted in plaintiffs arrest; David Ng, the chief of the WakeMed campus
police at the time; Lance Hoover, the housekeeping supervisor; and LaKeila Jackson, an
Employee Relations Specialist for WakeMed. [DE 2, iii! 7-10].
On March 18, 2015, a WakeMed patient reported that one of his two Kindle e-readers
was missing. [DE 2, iii! 17-21]. The patient had left his belongings in one room when he entered
surgery but he was taken to a different room after surgery. [DE 2, iii! 17-18]. When his
belongings were later returned to him, he discovered that one Kindle was missing. [DE 2, ~ 21].
The patient vacated his original room around 8: 15 AM. [DE 2, ~ 17]. Around 11 :3 0 AM, a
certified nursing aide (CNA) entered the patient's original room and collected his belongings, but
only found one Kindle. [DE 2,
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18]. At least two other WakeMed employees entered the
patient's original room: another housekeeper, who entered at approximately 9:30 AM, and a
"Tech," who moved patient's property to his new room. [DE 2,
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17, 22]. At approximately
12:30 PM, plaintiff entered the patient's original room to clean it. [DE 2,
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22]. Plaintiff reported
that she, too, found a Kindle while cleaning the room and that she gave it to the same CNA. [DE
2,
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20]. But only one Kindle was delivered to the patient. [DE 2,
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21]. Plaintiff was the last
employee to enter the room. [DE 2, ~ 22].
Defendant Privette investigated the missing Kindle. [DE 2,
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20]. After obtaining the
missing Kindle' s unique MAC address, Privette discovered that the missing Kindle had
connected to particular wireless access points throughout the hospital. [DE 2, ~~ 20-24]. In
particular, the missing Kindle connected to the access point inside the patient's original room
during the time that plaintiff was cleaning the room. [DE 2, ~ 20]. It also connected to access
points in an employee breakroom and a janitor's closet. [DE 2, ~ 24]. The missing Kindle did not
connect to any access points within the hospital after 3:30 PM, the time at which plaintiff left the
hospital. [DE 15-1, p. 5]. The Kindle that was still in the patient's possession, however,
connected to an access point within the hospital around 5:15 PM. [DE 15-1, p. 5].
On March 20, 2015, plaintiff met with defendants Privette, Hoover, and Jackson. [DE 2,
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25]. Plaintiff alleges that, at that meeting, she was not given Miranda warnings and was
"compelled ... to remain in a place where she did not wish to remain" by threats of arrest and
imprisonment. [DE 2,
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25, 68, 49].
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Following the questioning, on March 24, 2015, plaintiff was charged with misdemeanor
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larceny by the WakeMed campus police. [DE 2,
27]. Following the arrest, defendant WakeMed
"terminated [plaintiff's] employment for being charged with the criminal offense of
misdemeanor larceny" stemming from workplace conduct. [DE 2,
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31]. Plaintiff alleges that the
investigation and charges against her were racially motivated and meant to "put a Black face on
WakeMed's enduring problem of patient's property being stolen." [DE 2,
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40, 51]. Plaintiff
alleges that defendants, collectively, "manufactured probable cause" and "intended to cause [her]
severe emotional distress." [DE 2,
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86-87]. In August 2015, the Wake County District
Attorneys' Office dismissed the charges against plaintiff. [DE 2,
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31].
On March 27, 2018, more than three years after the events at issue, plaintiff filed her
Complaint [DE 1]. The Amended Complaint, filed the same day, included seven claims: (1) civil
rights violations pursuant to 42 U.S.C. § 1983, (2) civil rights violations pursuant to 42 U.S.C. §
1986, (3) false imprisonment, (4) assault and battery, (5) defamation, (6) intentional infliction of
emotional distress, and (7) malicious prosecution. [DE 2]. On June 13, 2018, defendants moved
to dismiss pursuant to, among others, Rule 12(b)(6) of the Federal Rules of Civil Procedure for
plaintiff's failure to state a claim upon which relief can be granted. [DE 15].
DISCUSSION
I. Counts I-V of Plaintiff's Amended Complaint
Defendants have moved to dismiss Counts I, II, III, IV, and V under Federal Rule of Civil
Procedure 12(b)(6) for plaintiff's failure to timely file each claim within the applicable statute of
limitations. When considering a motion to dismiss under Rule 12(b)(6), "the court should accept
as true all well-pleaded allegations and should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A court need not
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consider "unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet v.
Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2099). "A court may grant a 12(b)(6) motion
on statute of limitations grounds ... if the time bar is apparent on the face of the complaint."
Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017) (quotations omitted).
As to the first five counts of plaintiffs Amended Complaint, the "time bar is apparent on the face
of the complaint." See id.
Plaintiffs Count I, her Section 1983 claim, is barred by the applicable statute of
limitations. Section 1983 has no associated statute of limitations, so federal courts "borrow" the
applicable provision from the analogous state statute of limitations. See National Adver. v. City
of Raleigh, 947 F.2d 1158, 1161 (4th Cir. 1991). In North Carolina, the analogous statute is N.C.
Gen. Stat.§ 1-52(5), which provides for a three-year statute oflimitations. Id. at 1161-62. Ms.
Alston's Section 1983 claim is founded upon her arrest, allegedly without probable cause, on
March 24, 2015. [DE 2 ~ 49]. Because March 24, 2018 was a Saturday, the statute oflimitations
expired on March 26, 2018. Both plaintiffs Complaint [DE 1] and Amended Complaint [DE 2]
were filed on March 27, 2018. Thus, plaintiffs Section 1983 claim is barred by the statute of
limitations, and is dismissed.
Plaintiffs Count II, her Section 1986 claim, is also barred by the\applicable statute of
limitations. Section 1986 claims must have "commenced within one year after the cause of
action has accrued." 42 U.S.C. § 1986. All of the events rel.ated to plaintiffs claims took place in
2015, and the action was not commenced until 2018. Thus, plaintiffs Section 1986 claim is
barred by the statute of limitations, and is dismissed.
Plaintiffs Count III, her false imprisonment claim, is also barred by the applicable statute
oflimitations. North Carolina requires claims for false imprisonment to be brought within three
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years. N.C. Gen. Stat. § 1-52(19). Plaintiff bases her false imprisonment claim on two incidents:
(1) the March 20, 2015 meeting with defendants Privette, Hoover, and Jackson and (2) the March
24, 2015 arrest and release under unsecured bond at the Wake County Justice Center. [DE 2, ~~
25, 27, 68]. Each of these events took place more than three years before plaintiffs Complaint
and Amended Complaint were filed on March 27, 2018. Thus, plaintiffs false imprisonment
claim is barred by the statute of limitations, and is dismissed.
Plaintiffs Count IV, her assault and battery claim, is also barred by the applicable statute
oflimitations. North Carolina requires claims for assault and battery to be brought within three
years. N.C. Gen. Stat. § 1-52(19). Plaintiffs assault and battery claim arises from "nonconsensual and offensive contact with [her] person during her wrongful arrest." [DE 2, ~ 76].
That arrest took place on March 24, 2015. [DE 2, ~ 27]. This was more than three years before
plaintiffs Complaint and Amended Complaint were filed on March 27, 2018. Thus, plaintiffs
assault and battery claim is barred by the statute of limitations, and is dismissed.
Plaintiffs Count V, her defamation claim, is also barred by the applicable statute of
limitations. North Carolina requires claims for defamation to be brought within one year of the
publication date of the defamatory words. N.C. Gen. Stat. § 1-54(3). Plaintiff bases her
defamation claim on statements made by defendants on March 20, 2015. This was more than one
year before plaintiffs Complaint and Amended Complaint were filed on March 27, 2018. Thus,
plaintiffs defamation claim is barred by the statute of limitations, and is dismissed.
II. Counts VI-VII of Plaintiffs Amended Complaint
Defendants have also moved to dismiss Counts VI and VII under Federal Rule of Civil
Procedure 12(b)(6) for plaintiffs failure to state a claim upon which relief can be granted. To
survive such a motion, a complaint must state a claim for relief that is facially plausible. Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the court can
"draw the reasonable inference that the defendant is liable for the misconduct alleged," as merely
reciting the elements of a cause of action with the support of conclusory statements does not
suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court need not accept the plaintiffs
legal conclusions drawn from the facts, nor need it accept unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiffs Count VI, her intentional infliction of emotional distress claim, does not state a
claim upon which relief can be granted and is, therefore, dismissed. To state a claim for
intentional infliction of emotional distress in North Carolina, a plaintiff must show (1) extreme
and outrageous conduct (2) which is intended to cause and (3) does cause (4) severe emotional
distress. Wilkerson v. Duke Univ., 229 N.C. App. 670, 675 (2013). To be "extreme and
outrageous," conduct "must exceed 'all bounds usually tolerated by decent society."' Pardasani
v. Rack Room Shoes, 912 F. Supp. 187, 192 (M.D.N.C. 1996) (quoting Dickens v. Puryear, 302
N.C. 437 (1981)). North Carolina courts have rarely found intentional infliction of emotional
distress claims actionable in the employment context. See Atkins v. USF Dugan, 106 F. Supp. 2d
799, 810-11 (M.D.N.C. 1999) (citing cases where verbal and physical abuse and discrimination
were not sufficiently extreme and outrageous).
Plaintiffs intentional infliction of emotional distress claim is founded upon various
actions taken by the individual defendants, but taken together and drawing reasonable inferences
on plaintiffs behalf, these actions were neither extreme nor outrageous. Even accepting all of
plaintiffs factual allegations as true, it is not disputed that the patient left two Kindles in his
original room when he went into surgery, plaintiff was the last employee to enter the room, the
missing Kindle was in the room at the time plaintiff was cleaning it, the missing Kindle
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connected to access points near the employee breakroom and janitor's closet during plaintiffs
shift, and the missing Kindle did not connect to any hospital access points after plaintiffs shift
ended. Defendant'Privette investigated the matter, questioned plaintiff, and obtained an arrest
warrant from a magistrate judge. The manner in which defendants handled the investigation and
subsequent arrest cannot be said to "exceed all bounds usually tolerated by decent society." See
Pardasani, 912 F. Supp. at 192. Even if plaintiff suffered "insults, indignities, or threats,"
defendants' collective conduct was neither extreme nor outrageous, and plaintiffs Count VI is,
thus, dismissed. See Howard v. Coll. Of the Albermarle, 262 F. Supp. 3d 322, 340 (E.D.N.C.
2017), aff'd, 697 F. App'x 257 (4th Cir. 2017).
Plaintiffs Count VII, her malicious prosecution claim, does not state a claim upon which
relief can be granted and is, therefore, dismissed. To establish a malicious prosecution claim in
North Carolina, "a plaintiff must show that the defendant (1) initiated or participated in the
earlier proceeding, (2) did so maliciously, (3) without probable cause, and (4) the earlier
proceeding ended in favor of the plaintiff." Turner v. Thomas, 369 N.C. 419, 425 (2016). In
malicious prosecution cases, "[p ]robable cause ... has been properly defined as the existence of
such facts and circumstances, known to [defendant] at the time, as would induce a reasonable
man to commence a prosecution." Id. (alterations and emphases in original).
It is not clear exactly which defendants are alleged to have "initiated or participated" in
plaintiffs prosecution. But even inferring that each defendant participated, plaintiffs claim must
be dismissed because her probable cause existed. Again, the undisputed "facts and
circumstances" at the time demonstrate, even once all reasonable inferences have been drawn in
plaintiffs favor, that a reasonable person would commence a prosecution. Thus, plaintiffs
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malicious prosecution claim is dismissed for failure to state a claim upon which relief can be
granted.
In sum, plaintiff's complaint fails to allege facts necessary to sustain any actions under
state or federal law, and it will be dismissed.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss [DE 15] is GRANTED. The
Clerk is DIRECTED to close the case.
SO ORDERED, this~ day of September, 2018.
~ (.,,}. Llurit
TRRENCEW:BOYLE
UNITED STATES DISTRICT JUDGE
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