McAllister v. Malfitano et al

Filing 52

ORDER granting 43 Motion to Dismiss for Failure to State a Claim; granting in part 51 Motion to Amend/Correct. Signed by Chief Judge James C. Dever III on 4/30/2018. Sent to John D. McAllister at 2305 Columbus St. Apt. D Greensboro, NC 27406 via US Mail. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:17-CV-66-D

JOHN D. MCALLISTER,
Plaintiff,

v.
TIM MALFITANO, et al.,
Defendants.

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ORDER

On April3, 2017, plaintiff John D. McAllister ("McAllister" or ''plaintiff''), appearing pro
se, filed his complaint alleging violations of 42 U.S.C. § 1983 [D.E. 1]. On November 27, 2017,
McAllister amended his complaint and added Interlocal Risk Financing Fund ("Interlocal") as a
defendant [D.E. 38]. On December 11, 2017, Interlocal moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6)
for failure to state a claim [D.E. 43]. On December 28,2017, McAllister responded in opposition
[D.E. 48]. On February, 20, 2018, McAllister moved to file a second amended complaint and add
additional defendants [D.E. 51]. As discussed below, the court grants Interlocal' s motion to dismiss
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and grants in part McAllister's motion to amend his complaint.

I.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(l) tests

subject~matter

jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see Holloway v. Pagan
River Dockside Seafood. Inc., 669 F.3d 448,453 (4th Cir. 2012). A federal court "must determine
that it has subject-matter jurisdiction over the case before it can pass on the merits of that case."

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,479-80 (4th Cir. 2005).
Because McAllister asserts that this court has subject-matter jurisdiction, he must prove that
subject-matter jurisdiction exists.

See,~'

Steel Co., 523 U.S. at 103--{)4; Evans v. B.F. Perkins

Co., 166 F.3d 642,647 (4th Cir. 1999). In considering amotion to dismiss for lack of subject-matter
jurisdiction, the court may consider evidence outside the pleadings without converting the motion
into one for summary judgment.

See,~'

Evans, 166 F.3d at 647.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure
to state a claim upon which relief can be granted" tests whether the complaint is legally and factually
sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Com. v. Twombly, 550
U.S. 544, 562-63, 570 (2007); Giarratano v. Johnso!l, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a
court need not accept a complaint's legal conclusions drawn from the facts. See, ~' Iqbal, 556 U.S.
at 678. Similarly, a court ''need not accept as true unwarranted inferences, unreasonable conclusions,
or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 677-79.
The standard used to evaluate the sufficiency of a pleading is flexible, "and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickso!l, 551 U.S. at 94 (emphasis and quotation omitted). Erickso!l, however,
does not ''undermine [the] requirement that a pleading contain 'more than labels and conclusions."'
Giarratano, 521 F.3d at 304 n.S (quoting Twombly, 550 U.S. at 555); see Iqbal, 556 U.S. at 677-83;
Colemm1, 626 F.3d at 190; Nemet Chevrolet Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,
255-56 (4thCir. 2009); Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Although a court
must liberally construe a pro se plaintiffs allegations, it "cannot ignore a clear failure to allege facts"
that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing. LP, 867 F. Supp. 2d 766,

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776 (E.D.N.C. 2011); see Giarratano, 521 F.3d at 304 n.S.
McAllister's amended complaint alleges that various defendants violated his rights under the
Fourth Amendment and that the Jacksonville Police Department ''willfully, intentionally, and
maliciously falsely arrest[ed] and wrongfully incarcarate[d]" him for 15 days. Am. Compl.

~~

18-21. McAllister seeks "a declaration" that defendants violated his constitutional rights, a
preliminary and permanent injunction "ordering Police Chief Michael Yaniero, Detective Tim
Malfitano, Detective Steven A Selogy [sic], and IRFFNC to issue a public apology for the
wrongfully, willfully, intentionally, and malicious arrest[,]" and damages.

Id.

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23-31.

McAllister's only specific and non-conclusory allegation concerning Interlocal, however, is that
Interlocal "provides liability insurance to members of the City of Jackonsville and [its] Police
Department." Am. Compl. ~ 17.
To the extent McAllister argues that Interlocal violated his constitutional rights, that claim
fails. "To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by apersonactingundercolorofstate law." Westv. Atkins, 487U.S. 42,48 (1988); see
Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Additionally, a section 1983
plaintiff must plausibly allege the personal involvement of a defendant. See, ~' Iqbal, 556 U.S.
at 676; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978); Wright v. Collins, 766 F.2d
841, 850 (4th Cir. 1985). First, McAllister has not plausibly alleged that Interlocal is a state actor.
Thus, any section 1983 claim against Interlocal is "dismissed for lack of jurisdiction." Wiggins v.
11 Kew Garden Com:t, 497 F. App'x 262, 263 (4th Cir. 2012) (per curiam) (unpublished). Second,
and in any event, McAllister fails to allege Interlocal's personal involvement. Thus, the court
dismisses McAllister's section 1983 claim against Interlocal.

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To the extent McAllister seeks money damages, an injunction, or any other form of relief
from Interlocal, McAllister similarly fails to state a claim. Ordinarily, a plaintiff "must sue either
the tortfeasor in tort, or perhaps his own insurance company in contract[,]" but the plaintiff"cannot
sue the tortfeasor's insurance company directly." Donald v. Liberty Mut. Ins. Co., 18 F.3d 474, 480
(7th Cir. 1994). A plaintiff may, however, sue a third-party's insurance company ifhe can show he
is a direct beneficiary under the insurance contract.

See,~' Woolard v. Davenport,

166 N.C. App.

129, 136, 601 S.E.2d 319, 324 (2004). A plaintiffproceeding under a direct beneficiary theory must
allege: (1) the existence of an insurance contract between two other persons; (2) that the contract
was enforceable; and (3) that the contract was "entered into for his direct, and not incidental,
benefit." RaritanRiverSteelCo. v. Cheny. Bekaert&Holland, 79N.C.App. 81,85-86,339 S.E.2d
62, 65 (1986), rev' don other grounds, 322 N.C. 200, 367 S.E.2d 609 (1988); see Hoots v. Pryor, 106
N.C. App. 397,408,417 S.E.2d 269,276 (1992); Metric Constructors. Inc. v. Indus. Risk Insurers,
102 N.C. App. 59, 63, 401 S.E.2d 126, 129 (1991). McAllister did not plausibly allege that
Interlocal and the Jacksonville Police Department entered into the liability insurance contract for his
direct benefit. Thus, McAllister cannot sue Interlocal directly.
To the extent McAllister seeks a declaration that Interlocal will be liable to him if the
Jacksonville Police Department is found liable to him, the court lacks subject-matter jurisdiction to
adjudicate such claim. In order for a federal court to adjudicate a claim for a declaratory judgment,
both Article III of the Constitution and the Federal Declaratory Judgment Act require an "actual
controversy." Steffel v. Thompson, 415 U.S. 452, 458 (1974); 28 U.S.C. § 2201. A federal court
has jurisdiction over a declaratory judgment action when three elements are met: "(1) the complaint
alleges an 'actual controversy' between the parties of sufficient immediacy and reality to warrant
issuance of a declaratory judgment; (2) the court possesses an independent basis for jurisdiction over

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the parties (e.g., federal question or diversity jurisdiction); and (3) the court does not abuse its
discretion in its exercise ofjurisdiction." Volvo Constr. Equip. N. Am. Inc. v. CLMEquip. Co., 386
F.3d 581, 592 (4th Cir. 2004) (quotation omitted). An actual controversy exists when the dispute
is "definite and concrete, touching the legal relations of parties having adverse legal interests."
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937).
Courts have found the case or controversy requirement lacking when the plaintiffhas
no interest in the case, when the defendant has no interest in the case, when no
conflict exists in the case, when there is no adverse claimant, when there is no
conflict in the case because of a defect in the parties and when there is no legal
relationship between the parties.
Provident Life & Accident Ins. Co. v. Transamerica-Occidental Life Ins. Co., 850 F.2d 1489, 1491
(11th Cir. 1988). Here, McAllister has not plausibly alleged any legal relationship between
Interlocal and McAllister. Thus, ''there is no basis on which to rule either party liable to the other."
Id. Accordingly, the court grants lnterlocal's motion to dismiss.

II.
As for McAllister's motion to amend, under Federal Ru1e of Civil Procedure 15(a)(1)(B), a
plaintiff may amend his complaint once as a matter of course within 21 days after the earlier of (1)
service of a responsive pleading or (2) service of a motion under Ru1e 12(b), (e), or (f). After
expiration of this time period, a party may amend only with either the opposing party's written
consent or the court's leave. See Fed. R. Civ. P. 15(a)(2). Under Ru1e 15, a

"moti~n

to amend

shou1d be denied only where it wou1d be prejudicial, there has been bad faith, or the amendment
wou1d be futile." Nourison Rug Corp. v. Parvizim1, 535 F.3d 295, 298 (4th Cir. 2008); see Foman
v. Davis, 371 U.S. 178, 182 (1962).
The amendment wou1d not be prejudicial, and McAllister has not acted in bad faith.
McAllister, however, cannot name Interlocal as a defendant in his second amended complaint.
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Therefore, the court grants in part McAllister's motion to amend.
The second amended complaint is due no later than May 15, 2018. Defendants may plead

in response to the second amended complaint in accordance with the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 15(a)(3).
III.
In sum, the court GRANTS Interlocal's motion to dismiss [D.E. 43] and GRANTS in part
McAllister's motion to amend [D.E. 51]. The amended complaint is due no later than May 15, 2018.
SO ORDERED. This J..D_ day of April2018.

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