MCNEILL v. SCOTT et al

Filing 41

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/13/2014 as set out herein. RECOMMENDED that the Motion to Dismiss Official Capacity Claims in Amended Complaint Against Defendants Scott and Cleary (Docket Entry 33 ) be granted in that all official capacity claims against Defendants Cleary and Scott should be dismissed. RECOMMENDED that the Partial Motion of Defendants Scott and Cleary to Dismiss (Official Capacity Claims) (Docket Entry 27 ) be denied as moot. ORDERED that Plaintiff's Motion for Appointment of Counsel (Docket Entry 38 ) is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EMMIT L. MCNEILL,
Plaintiff,
v.
PTL. BRANDON SCOTT, JEREMY R.
CLEARY, CORPORAL B. RODGER,
and SGT. TRACY GRADY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

1:09CV698

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for recommended rulings on the Partial Motion of
Defendants Scott and Cleary to Dismiss (Official Capacity Claims)
(Docket Entry 27) and the Motion to Dismiss Official Capacity
Claims in Amended Complaint Against Defendants Scott and Cleary
(Docket Entry 33), as well as for a ruling on Plaintiff’s Motion
for Appointment of Counsel (Docket Entry 38).
dated Mar. 25, 2014 and Apr. 2, 2014.)

(See Docket Entries

For the reasons that

follow, Defendants’ first instant Motion should be denied as moot,
their second instant Motion should be granted, and Plaintiff’s
Motion for Appointment of Counsel will be denied.
I.

Background

Plaintiff’s Amended Complaint alleges Defendant Brandon Scott,
a Raeford City police officer (Docket Entry 31 at 7), “used
excessive force against [Plaintiff] on [February 27, 2009] while

[Plaintiff] was lying on the ground and in handcuffs, not resisting
arrest” (id. at 9).

According to the Amended Complaint, Defendant

Scott “jump[ed] in the air and kneed [Plaintiff] in [the] lower
back[,] hit [Plaintiff] in the back of the head several times[,]
. . . kicked [him] in the arm, side, thigh and ankle[,] . . .
picked [Plaintiff] up off the ground . . . [and] slung [him] around
and thr[ew] [him] back down to the ground . . . .”

(Id. at 8.)

The Amended Complaint further states that Plaintiff received a
broken ankle as a result.

(Id.)

In addition, the Amended

Complaint alleges that, “while all this was going on,” Defendants
Jeremy R. Cleary (a Raeford City police officer), B. Rodger, and
Tracy Grady (both with the Hoke County Sheriff’s office) “just
watched.”

(Id. at 8-9.)1

Based on these allegations, Plaintiff’s

asserts that his “Fourth and Eighth Amendmet [sic] were violated.”
(Id. at 9.)
Defendants Scott and Cleary filed their first instant Motion
(Docket Entry 27) prior to Plaintiff’s filing of the Amended
Complaint

(Docket

Entry

31).

Defendants

Scott

and

Clearly

subsequently filed their second, nearly identical, instant Motion
(Docket Entry 33), to which Plaintiff responded (Docket Entry 37).
In his Response, Plaintiff “move[s] the Court for a partial

1

The “STATEMENT OF CLAIM” section of the Amended Complaint
also includes “Deputy Nall (Hoke County Sheriff)” among the
officers who watched the alleged excessive force. (Docket Entry 31
at 9.) However, the Amended Complaint does not identify Deputy
Nall as a defendant in the “PARTIES” section. (See id. at 7-8.)
2

dismissal therefore agreeing with [D]efendants[’] [M]otion to
[D]ismiss all official (only) capacity claims in Amended Complaint
against [Defendants] Scott and Cleary.”
(emphasis in original).)

(Docket Entry 37 at 1

Plaintiff also filed his instant Motion

(Docket Entry 38), to which Defendants Cleary and Scott, as well as
Defendants

Grady

and

Rodger

separately

responded

(see

Docket

Entries 39, 40, respectively).
II.

Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a complaint
falls short if it does not “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, 678 (2009) (emphasis

added) (internal citations omitted) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

This standard “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.

In other words, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to
legal conclusions.
of

action,

suffice.”

Threadbare recitals of the elements of a cause

supported

by

mere

conclusory

statements,

do

not

Id.

“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.”

3

Francis v. Giacomelli, 588

F.3d 186, 193 (4th Cir. 2009).

Moreover, although the Supreme

Court has reiterated the importance of affording pro se litigants
the benefit of liberal construction, Erickson, 551 U.S. at 94, the
United States Court of Appeals for the Fourth Circuit has “not read
Erickson to undermine Twombly’s requirement that a pleading contain
more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d
298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted)
(applying Twombly standard in dismissing pro se complaint); accord
Atherton v. District of Columbia Off. of Mayor, 567 F.3d 672, 68182 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to
less stringent standards than formal pleadings drafted by lawyers.’
But even a pro se complainant must plead ‘factual matter’ that
permits the court to infer ‘more than the mere possibility of
misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal, 556
U.S. at 679, respectively)), cert. denied, 130 S. Ct. 2064 (2010).
Defendants Cleary and Scott contend that Plaintiff’s Amended
Complaint “fails to state valid official capacity claims . . . [in
that it] fails to state any facts or allegations which state,
assert, support or forecast that the alleged (but denied) violation
of

[P]laintiff’s

constitutional

rights

resulted

from

a

constitutionally invalid practice, custom, or policy by the City of
Raeford and its officials.”

(Docket Entry 34 at 1-2.)

In his

Response, Plaintiff concedes that the Court should dismiss the part

4

of his Amended Complaint alleging official capacity § 1983 claims
against Defendants Cleary and Scott.

(Docket Entry 37 at 1.)

Moreover, claims against officials in their official capacity
“‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’”

Monell v.

Department of Soc. Servs., 436 U.S. 658, 691 n.55 (1978).

As

Defendants Cleary and Scott point out (see Docket Entry 34 at 5-8),
in order to state claims against them in their official capacity,
i.e., against the local governmental entity of the City of Raeford,
“it must be shown that the actions of [Defendants Cleary and Scott]
were unconstitutional and were taken pursuant to a custom or policy
of the entity.”

Giancola v. State of W. Va. Dep’t of Pub. Safety,

830 F.2d 547, 550 (4th Cir. 1987) (emphasis added) (citing Monell,
436 U.S. at 690–92); accord Board of Cnty. Comm’rs of Bryan Cnty.,
Okla., 520 U.S. 397, 403 (1997) (“[L]ocal governmental bodies . . .
may not be held liable under § 1983 solely because [they] employ[]
a tortfeasor. . . . Instead, in Monell and subsequent cases, [the
Supreme

Court]

ha[s]

required

a

plaintiff

seeking

to

impose

liability on a [local governmental body] under § 1983 to identify
a

[local

governmental]

plaintiff’s injury.”).

‘policy’

or

‘custom’

that

caused

the

Accordingly, Plaintiff must show that a

“constitutional injury [wa]s proximately caused by a written policy
or ordinance, or by a widespread practice that is ‘so permanent and
well settled as to constitute a “custom or usage” with the force of

5

law.’”

McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 954 (M.D.N.C.

2011), rev’d in part on other grounds, 703 F.3d 636 (4th Cir. 2012)
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988)).

Plaintiff’s Amended Complaint makes no allegation that

the events it describes resulted from a policy or custom of the
City of Raeford.

(See Docket Entry 31 at 8-11.)2

For all of these reasons, the claims against Defendants Cleary
and Scott in their official capacities should be dismissed.
III.

Motion for Appointment of Counsel

Plaintiff, citing 28 U.S.C. § 1915(e)(1), “moves for an order
appointing counsel to represent him in this case.”
38 at 1.)

(Docket Entry

Section 1915 authorizes a court to “request an attorney

to represent any person unable to afford counsel.”
§ 1915(e)(1).

28 U.S.C.

In support of his request, Plaintiff contends the

following:
1. Plaintiff is unable to afford counsel.
requested leave to proceed in forma pauperis.

He

has

2. Plaintiff’s imprisonment will greatly limit his
ability to litigate. The issues involved in this case
are complex, and will require significant research and
investigation.
Plaintiff has no access to the law
library and limited knowledge of the law.
3. A trial in this case will likely involve conflicting
testimony, and counsel would better enable [P]laintiff to
present evidence and cross examine witnesses.

2

Nor do the supplemental documents provided by Plaintiff
show the existence of any such policy or custom. (See Docket Entry
31.)
6

(Docket Entry 38 at 1-2.)
“The power to appoint is a discretionary one, but it is an
abuse of discretion to decline to appoint counsel where the case of
an indigent plaintiff presents exceptional circumstances.

The

question of whether such circumstances exist in any particular case
hinges

on

characteristics

of

the

claim

and

the

litigant.”

Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (internal
citations omitted), abrogated on other grounds by Mallard v. United
States Dist. Court for S. Dist. of Iowa, 490 U.S. 296 (1989).

“If

it is apparent to the district court that a pro se litigant has a
colorable claim but lacks capacity to present it, the district
court should appoint counsel to assist him.”

Gordon v. Leeke, 574

F.2d 1147, 1153 (4th Cir. 1978).3
This Court previously denied Plaintiff’s first Motion to
Appoint Counsel (Docket Entry 16 at 1). (See Text Order dated Aug.
3, 2012.)

The Court held that, “at this stage of the proceedings,

it is apparent neither that [Plaintiff] has a colorable claim nor
that he lacks the capacity to present any such claim.”
Nothing has changed in that regard.

(Id.)

Should this case advance to

the trial stage or other circumstances warrant, Plaintiff may ask
the Court to revisit this issue.

3

The United States Supreme Court has held that
§ 1915(e)(1) (previously § 1915(d)) does not authorize a court to
appoint an attorney for an indigent civil plaintiff, but rather
permits the court to request that an attorney represent said
plaintiff. Mallard, 490 U.S. at 301-08.
7

IV.

Conclusion

Plaintiff has failed to plead sufficient facts to state
Section 1983 claim(s) against Defendants Cleary and Scott in their
official capacities.

Moreover, Plaintiff has failed to show

entitlement to assistance from the Court in securing counsel at
this stage of the proceedings.
IT

IS

THEREFORE

RECOMMENDED

that

the

Motion

to

Dismiss

Official Capacity Claims in Amended Complaint Against Defendants
Scott and Cleary (Docket Entry 33) be granted in that all official
capacity claims against Defendants Cleary and Scott should be
dismissed.
IT

IS

FURTHER

RECOMMENDED

that

the

Partial

Motion

of

Defendants Scott and Cleary to Dismiss (Official Capacity Claims)
(Docket Entry 27) be denied as moot.
IT IS ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Docket Entry 38) is DENIED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 13, 2014

8