McKoy v. City of Raleigh et al

Filing 37

ORDER granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim; denying 28 Motion for Hearing; denying 33 Motion for Extension of Time; denying 35 Motion for Hearing; denying as moot 9 Motion to Dismiss fo r Failure to State a Claim; granting 15 Motion to Dismiss for Failure to State a Claim. Plaintiff has through and including April 4, 2025, to file an amended complaint in accordance with the foregoing. Signed by District Judge Terrence W. Boyle on 3/11/2025. (Pro se party has consented to receiving electronic service of all motions, notices, orders, and documents in civil cases in the Eastern District of North Carolina.) (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:24-CV-154-BO

RONALD MCKOY,

)
)
Plaintiff,
)
)
V.
)
)
CITY OF RALEIGH, RALEIGH POLICE )
DEPARTMENT, and TANNER C. GOSS , )
)
)
Defendants.
)

ORDER

This cause comes before the Court on motions to dismiss by defendants pursuant to Rules
12(b)(l), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. The appropriate responses
and replies have been filed, or the time for doing so has expired, and the motions are ripe for ruling.
Plaintiff has also filed motions for hearing and to extend time to make service, which are also ripe
for disposition.
BACKGROUND
Plaintiff, who proceeds pro se, instituted this action by filing a complaint against the City
of Raleigh and the Raleigh Police Department on March 7, 2024. [DE 1]. The City of Raleigh and
the Raleigh Police Department moved to dismiss the complaint. [DE 9]. Thereafter, plaintiff filed
an amended complaint. [DE 12]. Plaintiffs amended complaint identifies the City of Raleigh as
the defendant in the caption of the complaint, and further lists Karen McDonald, City Attorney;
Hunt K. Choi, Deputy City Attorney; and Officer Tanner C. Goss as defendants in the body of the
complaint. The Raleigh Police Department, City of Raleigh, and Tanner C. Goss in his official

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capacity moved to dismiss the amended complaint. [DE 15]. Plaintiff was notified of his right to
respond and filed a response. [DE 19]. Tanner Goss, in his individual capacity, moved to dismiss
the complaint [DE 25] and plaintiff, after being notified of his right to respond, filed a response.
[DE 31]. Plaintiff has filed two motions for hearing, [DE 28; DE 35], which defendant Goss has
opposed. [DE 32; DE 36]. Plaintiff also seeks an extension of time to effect service on Karen
McDonald. [DE 33].
The factual allegations in plaintiffs amended complaint are as follows. On May 16, 2023 ,
plaintiff was driving a U-Haul rental truck on Capital Boulevard in Raleigh, North Carolina.
Tanner Goss, an officer with the Raleigh Police Department, stopped plaintiff for driving with an
unsecured load. Plaintiff provided his driver's license and the rental paperwork to Goss. Goss
returned to his police vehicle and "began to profile [plaintiffs] driving and criminal record. " Amd.
Comp!. at 3. After about twenty-five minutes, another Raleigh Police vehicle arrived at the scene.
Goss conversed with another Raleigh Police Officer for about fifteen minutes and then returned to
plaintiffs vehicle. Goss informed plaintiff that there was a warrant for his arrest arising from a
traffic citation in Lenoir County in 1988.
Plaintiff was arrested and alleges that during the arrest his arms were pinned back and his
shoulders were aggressively hyperextended. Plaintiff was never informed of his Miranda rights.
On the date of his arrest, plaintiff was sixty-four years old. Plaintiff informed Goss and the other
officer that he was a disabled United States Marine Corps veteran with no criminal record and the
officers laughed. All criminal charges against plaintiff were subsequently dismissed by the Wake
County District Attorney ' s Office.
Plaintiff alleges that his Fourth and Fourteenth Amendment rights were violated and cites
to 42 U.S.C. § 1983 . He further appears to allege state law claims for illegal search and seizure,

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wrongful arrest, racial profiling, and defamation of character. Plaintiff seeks $750,000 m
compensatory damages and $1,500,000 in punitive damages.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(l) authorizes dismissal of a claim for lack of subject
matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the burden of
proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co. , 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To this end, "the nonmoving party
must set forth specific facts beyond the pleadings to show that a genuine issue of material fact
exists." Id. (citing Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553 , 1558-59 (9th Cir.
1987)). The movant's motion to dismiss should be granted if the material jurisdictional facts are
not in dispute and the movant is entitled to prevail as a matter of law. Id.
Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes dismissal for lack of
personal jurisdiction. When personal jurisdiction has been challenged on the papers alone, the
plaintiff must make a prima facie case showing that personal jurisdiction exists, and a court
construes all facts and inferences in favor of finding jurisdiction. Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989).
A Rule 12(b)( 6) motion tests the legal sufficiency of the complaint. Papas an v. Allain , 4 78
U.S. 265, 283 (1986). When acting on 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 complaint

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must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged," and mere
recitals of the elements of a cause of action supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual
allegations do not nudge the plaintiffs claims "across the line from conceivable to plausible."
Twombly, 550 U.S. at 570. " [A] prose complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble , 429 U.S . 97,
106 (1976) (internal quotation and citation omitted). However, a court does not "act as an advocate
for a prose litigant," Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), nor is it required to
'"discern the unexpressed intent of the plaintiff[.]' " Williams v. Ozmint, 716 F.3d 801 , 805 (4th
Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 413 n. 3 (4 th Cir. 2006) (en bane)).
At the outset, because plaintiff has filed an amended complaint, the motion to dismiss the
original complaint is denied as moot. Fawzy v. Wauquiez Boats SNC, 873 F.3d 451 , 455 (4th Cir.
2017). Additionally, plaintiff has filed two motions seeking a hearing. A hearing would not aid the
Court in reaching its decision, and the motions for hearing are denied. See Local Civil Rule 7 .1 (j).
The Raleigh Police Department is not a named defendant in the caption of the amended
complaint. [DE 12]. However, each of plaintiffs oppositions to the motions to dismiss list the
following defendants in the caption: City of Raleigh, Officer Tanner Goss, and Raleigh Police
Department. To the extent that it remains a party to this action, the Raleigh Police Department is
not an entity capable of being sued, and it is appropriately dismissed. Smith v. Munday, 848 F.3d
248, 256 (4th Cir. 2017) ("Under North Carolina law, police departments cannot be sued as
entities.").

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The Court notes that the precise nature of the claims alleged and against whom the claims
are alleged is not easily discemable from the complaint. For example, plaintiff cites to § 1983 in
the beginning of his complaint, but fails to clarify in any other section of the pleading that he brings
claims under federal as well as state law. The Court, as it must, construes plaintiffs allegations
liberally and thus addresses, where appropriate, claims raised under both state and federal law.
The § 1983 claims against the City of Raleigh are dismissed. Under 42 U.S.C. § 1983, a
municipality may be liable for its policies and customs which result in the deprivation of civil
rights under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). But
plaintiff has failed to allege any policy or custom for which the City of Raleigh could be held
liable. See Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). Additionally, municipal liability
under Monell is not available under the theory of respondeat superior, so to hold the City liable its
employees must have taken "constitutionally offensive acts in furtherance of municipal policy or
custom." Burgess v. Goldstein, 997 F .3d 541, 562 (4th Cir. 2021) (citing Milligan v. City of
Newport News , 743 F.2d 227, 229 (4th Cir. 1984)). As plaintiff has not alleged the existence of
any policy or custom which resulted in the deprivation of his civil rights, the § 1983 claims against
the City of Raleigh are dismissed.
The state law claims against the City are barred by governmental immunity. Governmental
immunity provides a complete defense that "shields a defendant entirely from having to answer
for its conduct at all in a civil suit for damages." Craig ex rel. Craig, 678 S.E.2d 351, 354 (N.C.
2009). This immunity exists when the government is performing governmental functions, such as
providing police services. Arrington v. Martinez, 716 S.E.2d 410, 414 (N.C App. 2011). North
Carolina state courts have not resolved whether governmental immunity provides a bar to suit on
subject matter jurisdiction or personal jurisdiction grounds. Yarbrough v. East Wake First Charter

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Sch., 108 F. Supp. 3d 331 , 336 (E.D.N.C. 20 15). To demonstrate appropriate jurisdiction, the
plaintiff must plead waiver of governmental immunity and show the basis for such waiver. M

Series Rebuild, LLC v. Town ofMount Pleasant, Inc., 730 S.E.2d 254, 257 (N.C. App. 2012).
The amended complaint does not plead a waiver of governmental immunity. Nor has
plaintiff demonstrated that governmental immunity would not apply to any of his state law claims.

See, e.g. , Anderson v. Caldwell Cnty. Sheriff's Off, 524 F. App'x 854, 863 (4th Cir. 2013) (claim
for false arrest barred by governmental immunity); Kline v. Cleveland Cnty. , No. 1: 19-CV-197MOC-WCM, 2020 WL 7264463 , at *3 (W.D.N.C. Dec. 10, 2020) (defamation claim barred by
governmental immunity). Any state law claims alleged against the City of Raleigh are dismissed.
To the extent that plaintiff has alleged claims against Officer Goss in his official capacity,
those claims are also dismissed. Where a defendant has been named in his official capacity for
claims under§ 1983, those claims are "treated as a suit against the entity." King v. Rubenstein, 825
F .3d 206, 223 (4th Cir. 2016). The same is true for plaintiffs state common law claims.
"Governmental immunity protects not only the county, but also its officers and employees when
they are sued in their official capacities." Childs v. Johnson , 155 N.C. App. 381 , 386 (2002).
Accordingly, any claims against Officer Goss in his official capacity are duplicative of the claims
against the City and are dismissed.
The motion to dismiss the amended complaint by the City of Raleigh, Raleigh Police
Department, and Officer Goss in his official capacity is granted. Officer Goss also moves to
dismiss the claims against him in his individual capacity for fai lure to state a claim upon which
relief can be granted.
Plaintiff alleges a claim for wrongful arrest. Plaintiff has alleged that Officer Goss arrested
him pursuant to an arrest warrant, but also specifically alleges that there was not an active warrant

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at the time of his arrest. Amd. Compl. at 3. The existence of a valid arrest warrant would defeat
any state law wrongful arrest claim, see Myrick v. Cooley, 91 N.C. App. 209, 212 (1988) ("A false
arrest, i.e. , one without proper legal authority, is one means of committing a false imprisonment."),
as well as a § 1983 wrongful arrest claim. Porterfield v. Lott, l 56 F .3d 563, 568 (4th Cir. 1998)
("a public official cannot be charged with false arrest when he arrests a [person] pursuant to a
facially valid warrant."); see also McPhearson v. Anderson, 874 F. Supp. 2d 573 , 580 (E.D. Va.
2012). But taking plaintiffs allegation as true, there was not an active warrant for plaintiffs arrest
at the time Officer Goss arrested him. The motion to dismiss the wrongful arrest claim is denied.
Plaintiff also appears to allege a claim for excessive force. Plaintiff describes his shoulders
being aggressively hyperextended while he was arrested. Mindful that the Court must construe
plaintiffs claims liberally, the Court finds that plaintiff has plausibly alleged a Fourth Amendment
excessive force claim. See, e.g. , Smith v. Ray, 781 F.3d 95 , 101 (4th Cir. 2015). Officer Goss did
not move to dismiss a claim for excessive force. However, plaintiffs allegations in support of this
claim are minimal. Accordingly, the Court will permit plaintiff an opportunity to amend his
amended complaint to provide additional factual support for this claim.
Plaintiffs illegal search and seizure claim fails to state a claim. The Fourth Amendment
prohibits unreasonable searches and seizures. U.S. Const. Amend. IV; see also State v. Carter,
322 N.C. 709, 712 (1988). Plaintiff alleges that Officer Goss stopped plaintiffs vehicle for having
an unsecured load, which is a violation of North Carolina law that Officer Goss was authorized to
enforce. See N.C. Gen. Stat. §§ 20-116(g)(l); 20-183(a). Plaintiff does not allege that his U-Haul
did not have an unsecured load. Plaintiffs allegations fail to plausibly allege that Officer Goss '
traffic stop was unreasonable.

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Plaintiff further alleges that Officer Goss seized plaintiffs driver' s license and took it back
to the patrol vehicle when Officer Goss could not find anything for which to arrest plaintiff.
Plaintiff has not plausibly alleged that taking a driver' s license from the driver of a stopped vehicle
back to a patrol car amounts to an illegal seizure under either the Fourth Amendment or North
Carolina law. See Atkinson v. Godfrey, l 00 F.4th 498, 505 n.6 (4th Cir. 2024) (seizure of property
means "some meaningful interference with an individual ' s possessory interests in that property.");
see also United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008) (pursuant to traffic stop police
can request driver' s license and run computer check).
Plaintiff appears to allege a claim for "racial profiling." There is no federal claim for "racial
profiling," though the Fourth Circuit has recognized such claims as alleging a violation of the
Fourteenth Amendment's Equal Protection Clause. Hodge v. Gans/er, 547 F. App'x 209, 210 n.1
(4th Cir. 2013). The Equal Protection Clause "requires that similarly-situated individuals be treated
alike." Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008). Plaintiff has not alleged that he
was treated differently from any similarly-situated person, nor has he argued that North Carolina
law would provide him any relief for such a claim. This claim is conclusory and appropriately
dismissed.
Finally, plaintiff has failed to plausibly allege a defamation claim against Officer Goss.
Under North Carolina law, a plaintiff alleging defamation must generally show " 'that the
defendant caused injury to the plaintiff by making false, defamatory statements of or concerning
the plaintiff, which were published to a third person."' Desmond v. News & Observer Pub! 'g Co.,
375 N.C. 21 , 41 (2020) (citation omitted). Plaintiff alleges that "False statements that Defendant
said and written that caused mental and emotional stress, distress and harm to Plaintiff1' s]
reputation." Amd. Compl. at 2. Plaintiffs allegations in support of his defamation claim are

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conclusory. Moreover, any statements by Goss that were allegedly defamatory would be protected
by a qualified privilege. "(C]ertainly a police officer has an interest in undertaking an investigation
into allegations of criminal conduct and in engaging in good faith communications with" others
involved in the prosecution of an alleged crime. Averitt v. Rozier, 119 N.C. App. 216, 219 (1995)
(discussing elements of qualified privilege). Plaintiff has not alleged that Officer Goss was acting
in bad faith or with actual malice when investigating and arresting plaintiff. Id. Plaintiff has failed
to state a defamation claim. The motion to dismiss the claims against Officer Goss in his individual
capacity is therefore granted in part and denied in part.
Plaintiff seeks an extension of time "to serve for proof of service" of Karen McDonald, the
City Attorney for the City of Raleigh. [DE 33]. Fed. R. Civ. P. lO(a) requires that the title of the
complaint contain the names of all parties. Plaintiffs amended complaint caption names only the
City of Raleigh as a defendant. The body of the amended complaint lists Karen McDonald, Hunt
Choi, and Tanner Goss as defendants. [DE 12]. As noted above, plaintiffs oppositions to the
motions to dismiss include the City of Raleigh, Officer Goss, and the Raleigh Police Department
in the captions. [DE 19; DE 31; DE 34]. A fair reading of the amended complaint supports that
Officer Goss is a named defendant in addition to the City of Raleigh. However, no claims have
been alleged against Karen McDonald or Hunt Choi, Deputy City Attorney.
It is unclear whether plaintiff has served or is attempting to serve McDonald or Choi in an
effort to effectively serve the City of Raleigh or the Raleigh Police Department or whether he
intends to name McDonald and Choi as defendants. The City of Raleigh and the Raleigh Police
Department have appeared in this action through counsel. As no allegations in the amended
complaint identify McDonald or Choi, any attempt to effect service on them at this stage is
unnecessary. To the extent plaintiff has named McDonald and Choi as defendants, any claims

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against them are dismissed. See, e.g. , Stroupe v. Whisnant, No. 1:22-cv-00088-MR, 2022 U.S.
Dist. LEXIS 160930, at *5-6 (W.D.N.C. Sep. 6, 2022). The motion for extension of time to make
service is denied.
CONCLUSION
Accordingly, for the foregoing reasons, the first motion to dismiss by the City of Raleigh
and Raleigh Police Department [DE 9] is DENIED AS MOOT; the motion to dismiss the claims
in the amended complaint by the City of Raleigh, Raleigh Police Department, and Goss in his
official capacity [DE 15] is GRANTED. The motion to dismiss by Goss in his individual capacity
[DE 25] is GRANTED IN PART and DENIED IN PART. Plaintiff has through and including
April 4, 2025, to file an amended complaint in accordance with the foregoing.
Plaintiffs motions for hearing [DE 28 ; DE 35] are DENIED, and plaintiffs motion for
extension of time to make service [DE 33] is DENIED.

SO ORDERED, this

Ji day of March 2025 .

T~&~
UNITED STATES DISTRICT JUDGE

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