Spivey v. Norris et al

Filing 31

ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim and granting 28 Motion to Amend. Signed by District Judge Terrence W. Boyle on 1/7/2016. Counsel is reminded to read the order in its entirety for critical deadlines and information. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-160-BO
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DANIELLE GORE SPIVEY,
Plaintiff,

v.
DETECTIVE KEVIN NORRIS, in his
official and individual capacity; LEWIS L.
HATCHER, in his official capacity as
Columbus County Sheriff; and WESTERN
SURETY CO., as the SURETY for the
Columbus County Sheriff,
Defendants.

ORDER

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This matter is before the Court on defendant Kevin Norris's motion to dismiss and
plaintiff's motion to amend the complaint. Both motions are ripe for ruling. For the following
reasons, defendant's motion is granted in part and denied in part, and plaintiff's motion is
granted.
BACKGROUND
On August 1, 2015, plaintiff filed her complaint in the instant action, asserting seven
claims arising out of alleged harassment by Detective Kevin Norris of the Columbus County
Sheriff's Department. Plaintiff alleges that she was the victim of a "malicious vendetta" by
Detective Norris that culminated in frivolous criminal charges against which caused her personal
and professional harm. Plaintiff sues Detective Norris in his official capacity via 42 U.S.C. §
1983 for violations of her First, Fourth, and Fourteenth Amendment rights, in his individual
capacity via§ 1983 for violations of her Fourth and Fourteenth Amendment rights, and in both
his individual and official capacities under state law for malicious prosecution, abuse of process,
intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff

also sues Sheriff Lewis Hatcher in his official capacity via § 1983 for violations of her First,
Fourth, and Fourteenth Amendment rights and for negligent infliction of emotional distress
under state law under a theory of supervisory indifference, inaction, or failure to supervise.
Detective Norris now argues that the charges against him are redundant and should be dismissed
as such because Sheriff Hatcher also is a named defendant in this suit.
DISCUSSION
Detective Norris has moved to dismiss the claims against him pursuant to Federal Rule of
Civil Procedure 12(b)(6). 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, 94 (2007) (citing Bell At!. 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 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." E. Shore Mkts.,

Inc., v. JD. Assocs. Ltd, 213 F.3d 175, 180 (4th Cir. 2000).
Defendant argues that suits against officers in their official capacities "represent only
another way of pleading an action against an entity of which an officer is an agent." Monell v.

Dep't a/Soc. Servs., 436 U.S. 658, 690 n. 55 (1978). Detective Norris argues that because
sheriffs detectives are the employees of the sheriff, plaintiffs official capacity claims against

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Detective Norris are in fact claims against Sheriff Hatcher. Although defendant is correct that the
claims against Detective Norris in his official capacity represent a way of pleading an action
against the Sheriffs Office, his argument argument ignores the fact that the Court does not
analyze whether the parties are redundant, but instead analyzes whether the claims are redundant.
See, e.g., Gantt v. Whitaker, 203 F. Supp. 2d 503 (M.D.N.C.), aff'd by 57 F. App'x 141 (4th Cir.

2003). Detective Norris is the only party named (in both his official and individual capacity) in
claims one and two as well as claims four through six. Sheriff Hatcher is the only party in claim
three, which asserts that he is liable for his failure to train and supervise rather than for his direct
actions against plaintiff. To dismiss the claims pied solely against Detective Norris in his official
capacity would remove the Sheriffs Department entirely from these claims. Accordingly, the
claims against Detective Norris are not redundant, and defendant's motion is denied as to claims
one, two, four, five, and six.
Claim seven presents a different scenario. That claim asserts negligent infliction of
emotional distress against Detective Norris in his official and individual capacity and Sheriff
Hatcher in his official capacity. Plaintiff concedes that this claim is redundant, but argues that the
need for public accountability merits suit against both Detective Norris and Sheriff Hatcher in
their official capacities. See, e.g., Chase v. City ofPortsmouth, 428 F. Supp. 2d 487, 489
(E.D.Va. 2006) Where plaintiff has also sued the individual defendant in his individual capacity
as well as the entity-in this case Sheriff Hatcher in his official capacity-the public policy
reasons for allowing a redundant claim to proceed are diminished. Asserting the same claim
against Defendant Norris and Sheriff Hatcher in their official capacity is simply pleading the
claim against the Sheriffs Department twice. Accordingly, defendant's motion is granted as to
claim seven.

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Plaintiff has filed a motion to amend the complaint that does not add new parties or
substantively different facts, but seeks to clarify the claims for relief. Defendant has not objected
to plaintiffs motion to amend. As the time for amendment as a matter of course has passed,
plaintiff may amend "only with the opposing party's written consent or the court's leave. The
Court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). A court should
only deny leave to amend a pleading when the amendment would be prejudicial to the opposing
party, where there has been bad faith on the part of the moving party, or when the amendment
would be futile. Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citation
omitted). Here, there is no indication by either party that any of the conditions above counsel
against granting plaintiffs' motion to amend. Therefore, plaintiffs' motion to amend is granted,
but plaintiff is directed to file a new amended complaint within five days of the date this Order is
filed that comports with the Court's instant ruling. Defendant shall have fourteen days from the
date the amended complaint is filed to respond.

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CONCLUSION
For the foregoing reasons, defendants' motion to dismiss [DE 23] is GRANTED IN
PART as to claim seven and DENIED IN PART as to all other claims. Plaintiff's motion for
leave to amend the complaint [DE 28] is GRANTED.
Within five days of the date this Order is filed, plaintiff is DIRECTED to file an amended
complaint that is identical to her proposed amended complaint save that it comports with the
Court's ruling on defendant's motion to dismiss by removing Detective Norris in his official
capacity from claim seven. Defendant shall have fourteen days from the date the amended
complaint is filed to respond.

SO ORDERED, this

_:1 day of January, 2016.

~~w.IJ~

;;:RENCE W. BOYLE

UNITED STATES DISTRICT JUDGE

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