Shreve v. Limpert et al
Filing
88
ORDER granting 31 Motion to Dismiss for Failure to State a Claim; granting 37 Motion to Dismiss for Failure to State a Claim; granting 37 Motion to Dismiss for Lack of Jurisdiction; granting 53 Motion to Dismiss fo r Lack of Jurisdiction; granting 53 Motion to Dismiss for Failure to State a Claim; granting 83 Motion to Dismiss for Lack of Jurisdiction; granting 83 Motion to Dismiss for Failure to State a Claim; denying 87 Motion to Amend/Correct. Th e court hereby NOTIFIES plaintiff that she must provide proof of service on remaining defendants Jones, Butcher, Marlo, Ingersoll, Carroll, Critcher, Stephenson, and Parrott, within 21 days of the date of this order. Failure to file proof of service within the time period provided may result in dismissal without prejudice of all claims against said defendants. Signed by District Judge Louise Wood Flanagan on 11/15/2019. (A certified copy of this Order was sent via US mail to Kimberly Shreve, 1528 Varsity Dr. #43, Raleigh, NC 27606.) (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:19-CV-178-FL
KIMBERLY SHREVE, a/k/a Kimberly
Ann Shreve,
Plaintiff,
v.
OFFICER LIMPERT, OFFICER
HOWELL, OFFICER WOLFE, OFFICER
LOCKHART, OFFICER DAVIDSON,
OFFICER MEYERS, B. JONES, R.M.
PARRISH, G. JENKINS, A.S. ODETTE,
B. SCIOLI, OFFICER LAYMAN, L.M.
BUTCHER, B.H. WINSTON, OFFICER
FRISBEE, OFFICER MCLEOD,
OFFICER POWELL, OFFICER G.S.
MARLO, OFFICER ASATO, OFFICER
PETERSEN, OFFICER DUFAULT,
OFFICER DAVIS, OFFICER MORGAN,
J.R. MARX, OFFICER BRUNO,
OFFICER SINGLETARY, S.M.
INGERSOLL, J.B. WIGGS, OFFICER
MICHAEL, T.K. CARROLL, B.M.
STEPHENSON, J.R. CRITCHER,
OFFICER WINKLE, and R.D.
PARROTT,
Defendants.
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ORDER
This matter comes before the court upon motions to dismiss brought by 26 defendants of
the 34 named defendants variously working in law enforcement in Wake County, North Carolina,
identified by plaintiff as employees of the Raleigh, Fuquay-Varina, and Wendell Police
Departments, a law officer employed at North Carolina State University, and employees of the
Wake County Sheriff’s Office. (DE 31, 37, 53, 83). Plaintiff has responded in opposition to
several of the motions. (DE 44, 45, 47, 49, 48).1 Also before the court is plaintiff’s motion to
amend complaint. (DE 87). For the following reasons, the court grants defendants’ motions and
denies plaintiff’s motion.
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, claims defendants violated her Fourth Amendment rights by
falsely arresting her multiple times over a span of 19 years. 2 She commenced this action by letter
complaint filed March 20, 2019, in the United States District Court for the District of South
Carolina. Upon its transfer April 12, 2019, to this district, the action was categorized incorrectly
as a prisoner civil rights matter, and plaintiff was noticed to present her complaint on the district’s
approved prisoner complaint form. Plaintiff followed this direction, and on May 1, 2019, her
complaint was taken into the record, alleging violations of her civil rights under 42 U.S.C. § 1983.
Plaintiff attaches documentation of these alleged arrests, including grievances she filed against the
arresting officers, to her complaint. For relief, plaintiff seeks expungement of her criminal record.
The movants present in four separate motions filed between May 23, 2019, and July 29,
2019, similar reasons why plaintiff’s case should not be allowed to proceed against each of these
26 defendants. In motion filed on behalf of defendant R.M. Parrish, (“Parrish”), asserted member
of the Fuquay-Varina Police Department, defendant contends plaintiff’s complaint about a 1999
arrest should be dismissed in accordance with Rule 12(b)(6), Fed. R. Civ. P., because the statute
1
Plaintiff’s responsive filing lodged on the docket at entry number 56 is not catalogued here where it is
merely duplicative of response filed at entry number 45.
2
Plaintiff does not state whether she is suing the defendants in their individual or official capacities.
2
of limitations has expired. (DE 31). Motion filed on behalf of G. Jenkins (“Jenkins”), asserted
member of the Wendell Police Department, promotes his dismissal on grounds this court is without
personal jurisdiction, insufficiency of process and service of process, and failure to state a claim.
(DE 37). Defendant J. B. Wiggs (“Wiggs”), an officer at North Carolina State University, also
relies upon Rules 8(a), 12(b)(2), 12(b)(5), and 12(b)(6), in his motion for dismissal, on account of
defects in process, and plaintiff’s failure to state a claim based on insufficiency of allegations as
well as expiration of the limitations period where the arrest at issue occurred in 2014. (DE 53).
Finally, the many, asserted members of the Raleigh Police Department, including defendants
Officer Asato (“Asato”), Officer Bruno (“Bruno”), Officer Davidson (“Davidson”), Officer Davis
(“Davis”), Officer Dufault (“Dufault”), Officer Frisbee (“Frisbee”), Officer Howell (“Howell”),
Officer Layman (“Layman”), Officer Limpert (“Limpert”), Officer Lockhart (“Lockhart”), J.R.
Marx (“Marx”), Officer McLeod (“McLeod”), Officer Meyers (“Meyers”), Officer Michael
(“Michael”), Officer Morgan (“Morgan”), A. S. Odette (“Odette”), Officer Petersen (“Petersen”),
Officer Powell (“Powell”), B. Scioli (“Scioli”), Officer Singletary (“Singletary”), Officer Winkle
(“Winkle”), B.H. Winston (“Winston”), and Officer Wolfe (“Wolfe”), who come before the court
in a fourth motion to dismiss, add to the chorus of defendants who contend this court is without
personal jurisdiction because of plaintiff's failure to properly serve them, plaintiff's complaint is
time-barred (with respect to all but one of these 23 defendants), and so devoid of sufficient factual
allegations against any member of the Raleigh Police Department as to compel dismissal. (DE
83).
Plaintiff's responses in opposition, each entitled “Request for Withdrawal of a Motion,”
uniformly recognize the significance of her criminal history. She also lobs against any attempt by
defendants Parrish, Jenkins, and Wiggs to raise the shield of qualified immunity, though not
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mentioned in movants’ papers. Plaintiff protests against dismissal also on account of these
defendants’ separate, alleged negligent acts, causing her emotional distress. Furthermore, in
plaintiff’s instant motion entitled “motion to/for,” which the court construes as a motion to amend
complaint, plaintiff raises new allegations of harassment by police officers in Raleigh, claims she
was deprived of her epilepsy medicine while housed in Wake County Jail, and asserts she was
taken to Federal Correctional Complex, Butner (“Butner”) “for no apparent reason.” In support,
plaintiff attaches a document chronicling her various arrests, which date back to 1998.
The remaining eight defendants named in the complaint have not entered an appearance
and, accordingly, did not join in the instant motions to dismiss. These include defendants B. Jones
(“Jones”), L.M. Butcher (“Butcher”), GS Marlo (“Marlo”), SM Ingersoll (“Ingersoll”), TK Carroll
(“Carroll”), BM Stephenson (“Stephenson”), J.R. Critcher (“Critcher”), and R.D. Parrott
(“Parrott”).
STATEMENT OF FACTS
The facts alleged in plaintiff’s complaint are set forth in relevant part below:
[Defendant] Limpert charged me with communicating threats . . . with Malcolm
Huffman, my ex-boyfriend, the victim. I have a picture included where Malcolm
hit me. Why would I communicate threats to Huffman when he would jerk me by
my hair and I was terrified of him? I was taken to Wake County Jail and had a
bond.
[Defendant] Howell charged me with assault simple (not aggravated) to Malcolm
Huffman. Every time I needed help and called the cops, about [three to five] would
appear out of nowhere, standing [five] feet away whispering. Many times I was
handcuffed tight and thrown in the back of a car.
[Defendant] Wolfe charged me with mental commitment. I was not taken to a
mental hospital. I was taken to Wake County Jail.
[Defendant Butcher] charged me with damage to property and Malcolm Huffman
was the victim. [Defendant Butcher] wrote I lived at American Towing, 281
Brewton Place, Raleigh and Huffman lived at 120 Plainview (not true). [Defendant
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Butcher] also charged me Vandalism/Civilian . . . I do not understand why I had
such a low bond, and it was dismissed after Wake County Jail.
[Defendant] B.H. Winston charged me with Felony/Larceny of a pug dog that had
been missing for over one month and I had hung flyers to find the dog when
Malcolm Huffman told [defendant B.H. Winston] I had stolen the dog. [Defendant
B.H. Winston] turned without question, charged me with Felony/Larceny, and had
taken me to Wake County Jail.
[Defendant] Asato charged me with Larceny/All others . . . and the victim was
Malcolm Huffman. What would I steal from Huffman if I was living with him? I
was taken to Wake County Jail and had a low bond.
[Defendant] Critcher charged me with Second Degree Trespass. By general
procedures I was suppose[d] to be given an “oral warning” then a “written
warning.” How could I be charged with Second Degree Trespass? I could not find
a copy of the Incident Report . . . I was taken to Wake County Jail and had a bond.
[Defendant] Stephenson charged me [with] Resisting Public Officer, Intoxicated
and Disorderly. How could I be charged [with] intoxicated when no drug/alcohol
test was given? . . . . I could not find a copy of the Incident Report . . . I was taken
to Wake County Jail and had a bond.
(Compl. (DE 17) p. 21-23).3
In addition, with respect to defendant Winkle, plaintiff filed a document containing the
following statements:
I am writing today to complain of the poor service I received from [d]efendant
Winkle on November 29, 2016. The incident happened at 222 W. Hargett St. The
Incident Report shows on that date, [defendant] Winkle charged me with All Other
Non-Offense. Why was I not charged with Trespassing at 222 W. Hargett St. like
in year 2009? Who is “victim” Jean Ballard Babson and what is a “victim” of all
other non-offense?
(Compl. (DE 17-1) p. 91).
3
Page numbers in citations to documents in the record specify the page number designated by the court’s
electronic case filing (ECF) system, and not the page number, if any, showing on the face of the underlying
document.
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DISCUSSION
A.
Standards of Review
1.
Motion to Amend Complaint
A plaintiff may amend complaint one time as a matter of course within 21 days after service
of a responsive pleading or 21 days after service of a motion under Rule 12(b), whichever is earlier.
Fed. R. Civ. P. 15(a). Otherwise, a plaintiff may amend complaint only by leave of the court or
by written consent of the defendant, although “[t]he court should freely give leave when justice so
requires.” Id. This liberal rule gives effect to the federal policy in favor of resolving cases on their
merits, rather than disposing of them on technicalities. See Ostrzenski v. Seigel, 177 F.3d 245,
252–53 (4th Cir. 1999).
Leave to amend freely should be given in the absence of “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility
of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). With respect to futility, the court
may deny leave to amend “if the proposed amended complaint fails to state a claim under the
applicable rules and accompanying standards.” Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462,
471 (4th Cir. 2011).
2.
Motion to Dismiss
“To survive a motion to dismiss” under Rule 12(b)(6), “‘a 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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts
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all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but
does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of
further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009) (citations omitted).
B.
Analysis
1.
Statute of Limitations
All moving defendants, except defendant Winkle, argue plaintiff’s claims for false arrest
under 42 U.S.C. § 1983 are time-barred. There is no federal statute of limitations for actions
brought under 42 U.S.C. § 1983. Instead, the analogous state statute of limitations applies. Burnett
v. Grattan, 468 U.S. 42, 49 (1984). Specifically, the state statute of limitations for personal injury
actions governs claims brought under 42 U.S.C. § 1983. See Wallace v. Kato, 549 U.S. 384, 38788 (2007). North Carolina has a three-year statute of limitations for personal injury actions. N.C.
Gen. Stat. § 1-52(5); see Tommy Davis Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 67
(4th Cir. 2015).
Although the limitations period for claims brought under section 1983 is borrowed from
state law, the time for accrual of an action is a question of federal law. Wallace, 549 U.S. at 388;
Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir. 1996). A claim generally
accrues when the plaintiff knows or has reason to know of the injury which is the basis of the
action. See Wallace, 549 U.S. at 391.
Here, plaintiff’s claims for false arrest accrued when she was allegedly arrested because
that is when she knew or had reason to know of the alleged violations. See Brooks 85 F.3d at 182
(holding that a claim for false arrest accrues on the date of arrest). Since plaintiff initiated this
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action on March 20, 2019, all arrests that occurred prior to March 20, 2016, are barred by the threeyear statute of limitations. As a result, plaintiff’s claims against moving defendants Parrish,4
Jenkins,5
Odette,6 Limpert,7 Howell,8 Wolfe,9 Lockhart,10 Davidson,11 Meyers,12 Scioli,13
Layman,14 Winston,15 Frisbee,16 McLeod,17 Powell,18 Asato,19 Petersen,20 Dufault,21 Davis,22
Morgan,23 Marx,24 Bruno,25 Singletary,26 Wiggs,27 and Michael28 are dismissed as time barred.29
2.
Failure to State a Claim
Plaintiff’s false arrest claim against sole remaining moving defendant Winkle is not time
barred. To state a claim for false arrest under 42 U.S.C § 1983, a plaintiff must establish that the
arresting officer lacked probable cause. Street v. Surdyka, 292 F.2d 368, 372-73 (4th Cir. 1974)
(“There is no cause of action for ‘false arrest’ under section 1983 unless the arresting officer lacked
probable cause.”).
4
Defendant Parrish allegedly arrested plaintiff on October 13, 1999. (Compl. (DE 17-1) p. 3-4).
Defendant Jenkins allegedly arrested plaintiff on April 29, 2000. (Compl. (DE 17-1) (p. 7-8).
6
Defendant Odette allegedly arrested plaintiff on May 12, 2002. (Compl. (DE 17-1) p. 9-12).
7
Defendant Limpert allegedly arrested plaintiff on May 28, 2002. (Compl. (DE 17-1) p. 13-14).
8
Defendant Howell allegedly arrested plaintiff on December 16, 2002. (Compl. (DE 17-1) p. 15-16).
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Defendant Wolfe allegedly arrested plaintiff on January 17, 2003. (Compl. (DE 17-1) p. 17-18).
10
Defendant Lockhart allegedly arrested plaintiff on April 18, 2003. (Compl. (DE 17-1) p. 19-20).
11
Defendant Davidson allegedly arrested plaintiff on June 14, 2003. (Compl. (DE 17-1) p. 21-22).
12
Defendant Meyers allegedly arrested plaintiff on June 14, 2003. (Compl. (DE 17-1) p. 23-24).
13
Defendant Scioli allegedly arrested plaintiff on June 29, 2003. (Compl. (DE 17-1) p. 25-26).
14
Defendant Layman allegedly arrested plaintiff on July 1, 2003. (Compl (DE 17-1) p. 27-28).
15
Defendant Winston allegedly arrested plaintiff on February 12, 2005. (Compl. (DE 17-1) p. 33-36).
16
Defendant Frisbee allegedly arrested plaintiff on March 11, 2005. (Compl. (DE 17-1) p. 37-38).
17
Defendant McLeod allegedly arrested plaintiff on March 12, 2005. (Compl. (DE 17-1) p. 42-43).
18
Defendant Powell allegedly arrested plaintiff on March 12, 2005. (Compl. (DE 17-1) p. 44-47).
19
Defendant Asato allegedly arrested plaintiff on August 16, 2005. (Compl. (DE 17-1) p. 48-51).
20
Defendant Petersen allegedly arrested plaintiff on August 19, 2005. (Compl. (DE 17-1) p. 52-53).
21
Defendant Dufault allegedly arrested plaintiff on November, 25 2005. (Compl. (DE 17-1) p. 54-55).
22
Defendant Davis allegedly arrested plaintiff on September 8, 2008. (Compl. (DE 17-1) p. 56-57).
23
Defendant Morgan allegedly arrested plaintiff on October 6, 2008. (Compl. (DE 17-1) p. 58-59).
24
Defendant Marx allegedly arrested plaintiff on January 16, 2009. (Compl. (DE 17-1) p. 60-63).
25
Defendant Bruno allegedly arrested plaintiff on February 4, 2009. (Compl. (DE 17-1) p. 67-68).
26
Defendant Singletary allegedly arrested plaintiff on July 17, 2009. (Compl. (DE 17-1) p. 69-70).
27
Defendant Wiggs allegedly arrested plaintiff on May 22, 2014. (Compl. (DE 17-1) p. 75-76).
28
Defendant Michael allegedly arrested plaintiff on June 19, 2014. (Compl. (DE 17-1) p. 77-78).
29
Claims against non-moving defendants Jones, Butcher, Marlo, Ingersoll, and Carroll are time barred as
well. (See Compl. (DE 17-1) p. 1, 29, 39, 71, 79).
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Probable cause to justify an arrest means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect has
committed . . . an offense. Probable cause is an objective standard of probability
that reasonable and prudent persons apply in everyday life, and determined by a
totality of the circumstances approach. While probable cause requires more than
bare suspicion, it requires less than that evidence necessary to convict.
Humbert v. Mayor and City Council of Baltimore City, 866 F.3d 546, 555-56 (4th Cir. 2017)
(citations omitted).
Here, plaintiff claims defendant Winkle charged her with “All other non-offense” on
November 29, 2016. However, she fails to allege he lacked probable cause to arrest her. Instead,
she merely questions his selection of charges. (See Compl. (DE 17-1) p. 91) (“[Defendant] Winkle
charged me with All Other Non- Offense. Why was I not charged with Trespassing at 222 W.
Hargett St. like in year 2009?”). As illustrated by the Fourth Circuit in Humbert, probable cause
to make an arrest exists if an officer has cause to reasonably believe the suspect has committed
any offense. See 866 F.3d at 555-56. Thus, an officer’s selection of charges is immaterial to the
probable cause analysis. Since plaintiff fails to allege that defendant Winkle lacked probable
cause, her false arrest claim against defendant Winkle must be dismissed.30
3.
Status of Remaining Defendants
As noted above, eight defendants named in the complaint, Jones, Butcher, Marlo, Ingersoll,
Carroll, Stephenson, Critcher, and Parrott, have not entered an appearance and so did not join in
any motion to dismiss. Federal Rule of Civil Procedure 4(l) provides that “proof of service must
be made to the court.” Rule 4(m) further provides that “[i]f a defendant is not served within 90
days after the complaint is filed, the court – on motion or on its own after notice to the plaintiff –
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Because the court grants moving defendants’ motion to dismiss on the basis of failure to state a claim and
time bar, the court does not reach additional grounds for dismissal asserted by moving defendants.
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must dismiss the action without prejudice against that defendant or order that service be made
within a specified time.”
Plaintiff has not proved service on any of the remaining defendants. Although plaintiff
filed copies of summonses directed to defendants on May 9, 2019, and affidavits stating she sent
summonses through certified mail on May 16, 2019, she did not file signature cards indicating
defendants actually received summons or complaint. (See DE 23, 26). Moreover, plaintiff’s
documentation shows that she mailed summonses for defendants Critcher, Parrott, Butcher, Marlo,
and Jones to the Raleigh Police Department. (See DE 23 and 26). However, Fagan Stackhouse,
the Director of the Human Resources Department for the City of Raleigh, attested that the City of
Raleigh has never employed defendants Critcher, Parrott, Butcher, Marlo, or Jones. (DE 84-3 p.
2).
Accordingly, the court hereby provides notice to plaintiff that she must provide proof of
service on the remaining defendants Jones, Butcher, Marlo, Ingersoll, Carroll, Critcher,
Stephenson, and Parrott within 21 days of the date of this order. Failure to file proof of service
within the time period provided may result in dismissal without prejudice of all claims against
those defendants.
4.
Motion to Amend Complaint
Plaintiff raises the following new allegations in her motion to amend: 1) police officers in
Raleigh began harassing her after she commenced the instant action; 2) she was deprived of her
epilepsy medication while housed in Wake County Jail, which caused a seizure and head injury;
and 3) she was taken to Butner for forty days “for no apparent reason.” (DE 87 at 1-19).
The time in which plaintiff could amend her complaint as a matter of right has passed.
Moreover, by failing to indicate who committed the abuses alleged in her motion to amend,
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plaintiff has set forth bare assertions devoid of factual enhancement. As such, plaintiff fails to
state a claim for relief, rendering her amendment to complaint futile. Accordingly, plaintiff’s
motion to amend complaint is denied. See Katyle, 637 F.3d at 471 (holding the court may deny
leave to amend “if the proposed amended complaint fails to state a claim under the applicable rules
and accompanying standards.”).
CONCLUSION
Based on the foregoing, the court orders the following:
1)
Moving defendants’ motions to dismiss (DE 31, 37, 53, 83) are GRANTED. All claims
against moving defendants are DISMISSED WITHOUT PREJUDICE.
2)
The court hereby NOTIFIES plaintiff that she must provide proof of service on
remaining defendants Jones, Butcher, Marlo, Ingersoll, Carroll, Critcher, Stephenson,
and Parrott, within 21 days of the date of this order. Failure to file proof of service
within the time period provided may result in dismissal without prejudice of all claims
against said defendants.
3)
Plaintiff’s motion to amend complaint (DE 87) is DENIED.
SO ORDERED, this the 15th day of November, 2019.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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