COBBS v. GUILFORD COUNTY SHERIFF'S DEPARTMENT et al
Filing
44
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/31/2012, ORDERING that Plaintiff's Motion to Compel (Docket Entry 30 ) is DENIED AS UNRIPE but without preju dice to the refiling of said Motion once discovery has commenced. RECOMMENDING that the Motion to Dismiss the Second Amended Complaint by County of Guilford and Sheriff B.J. Barnes (Docket Entry 19 ) be granted in part and denied in part in that the Court should dismiss Plaintiff's claims against Guilford County and Plaintiff's Section 1983 claims against Sheriff Barnes, but allow Plaintiff to pursue claims for wrongful death against Sheriff Barnes based on principles of respondeat superior. The Clerk should promptly set this case for an Initial Pretrial Conference. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RONALD EUGENE COBBS, deceased,
by and through TRICOLIA A.
COBBS, Administratrix,
Plaintiff,
v.
COUNTY OF GUILFORD, SHERIFF
B.J. BARNES, and PRISON
HEALTH SERVICES, INC.,
Defendants.
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1:10CV806
MEMORANDUM OPINION, ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on the Motion to Dismiss
the Second Amended Complaint by County of Guilford and Sheriff B.J.
Barnes (Docket Entry 19) and for disposition of Plaintiff’s Motion
to Compel (Docket Entry 30).
For the reasons that follow, the
Motion to Dismiss should be granted in part and denied in part and
Plaintiff’s Motion to Compel will be denied as unripe.
BACKGROUND
Plaintiff’s Second Amended Complaint alleges that, in 2009,
Plaintiff was incarcerated in the Guilford County Jail “over a
period of several months.”
(Docket Entry 26, ¶ 2.)1
The Second
Amended Complaint identifies Sheriff B.J. Barnes as “Sheriff of
Guilford County” at all times relevant to this action (id. ¶ 3) and
1
For the purposes of this Memorandum Opinion, the undersigned
refers to the decedent, Cobbs, as “Plaintiff.”
Prison Health Services, Inc. (“Prison Health Services”) as “a
company that purports to provide medical services for prisons and
jail facilities throughout the United States” (id. ¶ 5) which, at
the time in question, “was contracted to provide medical screening,
evaluation, treatment and all other aspects of medical support for
individuals incarcerated in the Guilford County Jail” (id. ¶ 6).
According
to
the
Second
Amended
Complaint,
during
his
incarceration, an altercation occurred between Plaintiff and a
guard at the Guilford County Jail, and Plaintiff, unarmed, was
tased.
(See id. ¶¶ 18-19.)
The Second Amended Complaint goes on
to allege that Plaintiff was subsequently handcuffed with his hands
behind his back and “restrained and then tasered in the back.”
(Id. ¶ 20.)
Purportedly, Plaintiff “did not speak or evidence any
voluntary movement” after the application of the second taser and
“died as a result of an application of restraint that played a role
in his death.”
(Id. ¶¶ 21-22.)
The Second Amended Complaint,
however, does not allege any direct involvement in the foregoing
incident by Sheriff Barnes.
(See Docket Entry 26.)
As a result of these events, Plaintiff asserts claims under 42
U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendment
against Guilford County, Sheriff Barnes, and Prison Health Services
(id. ¶¶ 25-30) and seeks “any and all damages recoverable under the
North Carolina Wrongful Death Act, §28-18A” (id. ¶ 23), as well as
treble damages “pursuant to North Carolina General Statute §162-55”
(id. ¶ 24).
Sheriff Barnes and Guilford County have now filed a
Motion to Dismiss Plaintiff’s Second Amended Complaint (Docket
-2-
Entry 19) and Plaintiff has filed a Motion to Compel certain video
and photographic evidence of the incident (Docket Entry 30).
MOTION TO DISMISS
A plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,
556
U.S.
662,
678
(2009)
(emphasis
Ashcroft v.
added)
(internal
citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short
of the line between possibility and plausibility of “entitlement to
relief.”’”
Id. (quoting Twombly, 550 U.S. at 557).
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.
Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
I.
Id.2
Guilford County
Plaintiff contends that his “constitutional rights were []
violated as a direct and proximate result of . . . Guilford
County’s policies and/or customs and procedures and/or lack of
policies and/or customs and procedures” regarding the hiring,
2
“[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.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
-3-
retention, training and/or supervision of employees at the Guilford
County Jail.
(Docket Entry 26, ¶ 27.)
In addition, Plaintiff
seeks to assert a related wrongful death action against Guilford
County under North Carolina law.
(See id. ¶ 23.)
“In determining
whether a county is liable for its sheriff’s acts, a court must
examine how state law allocates power and responsibility in a
specific area or on a particular issue of policy.”
State ex rel.
Wellington v. Antonelli, No. 1:01CV01088, 2002 WL 31875504, at *3
(M.D.N.C. Dec. 20, 2002) (Osteen, Sr., J.) (unpublished) (citing
McMillian v. Monroe Cnty., 520 U.S. 781, 786 (1997), Knight v.
Vernon, 214 F.3d 544, 552 (4th Cir. 2000), and Dotson v. Chester,
937 F.2d 920, 924 (4th Cir. 1991)).
With respect to both responsibility over the jail generally
and, in particular, matters related to sheriff’s office personnel,
North Carolina law allocates final policymaking authority to the
sheriff. See N.C. Gen. Stat. § 162-22 (“The sheriff shall have the
care and custody of the jail in his county; and shall be, or
appoint, the keeper thereof.”); N.C. Gen. Stat. § 153A-103(1)
(“Each sheriff . . . has the exclusive right to hire, discharge,
and supervise the employees in his office.”).
As this Court (per
Judge Osteen, Sr.) observed in an analogous case: “Because Guilford
County did not have final policymaking authority . . ., it cannot
be held liable for the conduct of Sheriff Barnes or [his deputies].
Accordingly, [Guilford] County’s motion to dismiss Plaintiff’s
§
1983
claim
against
it
based
on
the
Fourth
and
Fourteenth
Amendments [should] be granted.” State ex rel. Wellington, 2002 WL
-4-
31875504, at *3; accord Wiley v. Buncombe Cnty., ___ F. Supp. 2d
___, ___, 2012 WL 683112, at *6 (W.D.N.C. 2012) (“Since Buncombe
County by law has no control over the Sheriff’s employees and/or
control over the jail, Buncombe County cannot [] be liable for the
actions of [the sheriff] or those of his detention officers for
events
that
occur
at
the
Buncombe
County
Detention
Facility
operated by the Sheriff of Buncombe County.”). Plaintiff’s related
state law claim against Guilford County fails as a matter of law on
this same basis.
See, e.g., Bailey v. Polk Cnty., N.C., No.
1:10CV264, 2011 WL 4565469, at *5-6 (W.D.N.C. Mar. 27, 2011)
(unpublished) (recommending dismissal of supplemental state tort
claims against county based on lack of policymaking authority over
sheriff), recommendation adopted, 2011 WL 4565449 (W.D.N.C. Sept.
29, 2011) (unpublished).
II.
Sheriff Barnes
A.
Section 1983 Claims - Individual Capacity
Plaintiff’s Second Amended Complaint does not specify whether
it asserts Section 1983 claims against Sheriff Barnes in his
official capacity, individual capacity, or both. (See Docket Entry
26.)
Plaintiff’s Response Brief states that the “Complaint is
drafted broadly to include both individual and official capacity
claims against Sheriff Barnes that are applicable under the facts.”
(Docket Entry 28 at 2.)
In regards to individual liability, Plaintiff’s Second Amended
Complaint does not allege any actions taken directly by Sheriff
Barnes.
(See Docket Entry 26.)
Rather, it declares:
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Upon information and belief, [Plaintiff’s] constitutional
rights were further violated as a direct and proximate
result of [Sheriff] Barnes[’s] . . . policies and/or
customs and procedures and/or lack of policies and/or
customs and procedures in:
(a)
Failing to properly hire, train, and/or
supervise officers in the performance of
duties;
(b)
Failing to properly hire, train, and/or
supervise officers and/or deputies with regard
to the proper usage of tasers in the detention
of prisoners;
(c)
Failing to properly hire, train, and/or
supervise officers and/or deputies with regard
to the proper usage of force in the detention
of prisoners;
(d)
Failing to properly hire, train, and/or
supervise officers and/or deputies with regard
to the proper usage of restraints in the
detention of prisoners; and
(e)
Failing to have policies and/or implement
policies
regarding
providing
emergency
assistance to individuals injured or rendered
unconscious by taser.
(Id. ¶ 27.)
Plaintiff acknowledges the lack of direct allegations
against Sheriff Barnes in his Response Brief: “Plaintiff does not
claim that Sheriff Barnes was personally involved in the incident
in a physical sense, but was involved via his deputies, policies,
and procedures for which he is statutorily responsible.”
(Docket
Entry 28 at 2.)
Plaintiff’s Section 1983 claim against Sheriff Barnes in his
individual
capacity
thus
must
rest
either
on
“deliberate
indifference” supervisory liability or a “failure to train” theory
because the doctrine of respondeat superior does not apply under 42
U.S.C. § 1983.
See Iqbal, 566 U.S. at 676.
-6-
As to the first of the
potential rationales, “[s]upervisory officials may be liable under
§ 1983 if ‘(1) . . . the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed ‘a
pervasive
and
unreasonable
risk’
of
constitutional
injury
to
citizens like the plaintiff; (2) . . . the supervisor’s response to
that
knowledge
was
so
inadequate
as
to
show
‘deliberate
indifference to or tacit authorization of the alleged offensive
practices []’; and (3) . . . there was an ‘affirmative causal link’
between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.”
McFadyen v. Duke Univ., 786 F.
Supp. 2d 887, 963 (M.D.N.C. 2011) (Beaty, C.J.) (quoting Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994)) (alterations provided by
McFadyen).
Other recent authority has further fleshed out the foregoing
requirements:
To meet the first requirement, the plaintiff must proffer
evidence that the misconduct has occurred on other
occasions or is “widespread.” [Shaw, 13 F.3d at 799.]
Further, to establish that the supervisor’s response is
deliberately indifferent, the plaintiff must show the
supervisor’s “‘continued inaction in the face of
documented widespread abuses,’” which is a “heavy
burden.” Id. (quoting Slakan v. Porter, 737 F.2d 368,
372-73 (4th Cir. 1984)). Finally, the plaintiff may show
an affirmative causal link between the supervisor’s
response and the plaintiff’s injury when the injury is a
“natural consequence[ ]” of the supervisor’s inaction.
Id. at 800 (quoting Slakan, 737 [F.2d] at 376).
Goodwin v. Beasley, No. 1:09CV151, 2011 WL 238640, at *1 (M.D.N.C.
Jan. 24, 2011) (Tilley, J.) (unpublished).
In light of this standard, Plaintiff’s allegations are wholly
inadequate to state a claim against Sheriff Barnes for failure to
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properly supervise. First, Plaintiff recounts a single incident as
opposed
to
“widespread”
misconduct.
(See
Docket
Entry
26.)
Second, Plaintiff offers no factual assertions to support an
inference of “continued inaction” on the part of Sheriff Barnes,
especially in light of the absence of any factual allegations even
consistent with “widespread abuses.”
(Id.)
Finally, despite
Plaintiff’s contention that Sheriff Barnes’s “policies on [taser]
usage is [sic] a causal link to the harm suffered by Mr. Cobbs”
(Docket Entry 28 at 3), the Second Amended Complaint contains no
factual assertions regarding those policies (see Docket Entry 26).
In sum, Plaintiff’s Second Amended Complaint offers no factual
matter to support a Section 1983 claim against Sheriff Barnes under
any recognized theory of supervisory liability, but instead offers
only general and conclusory allegations that fail to meet the
standards set by Iqbal and Twombly.
To the extent Plaintiff’s claim alleges a failure of Sheriff
Barnes to train, “the inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons with
whom the police come into contact.”
City of Canton v. Harris, 489
U.S. 378, 388 (1989). “[D]eliberate indifference in the context of
failure-to-train arises when ‘in light of the duties assigned to
specific officers . . . the need for more or different training is
so obvious, and the inadequacy [is] so likely to result in the
violation of constitutional rights.’”
-8-
Goodwin, 2011 WL 238640, at
*1 (quoting Canton, 489 U.S. at 390) (alterations provided by
Goodwin).
Here, Plaintiff again offers only conclusory allegations, not
factual matter, which, if taken as true, would state a claim to
relief that is plausible on its face.
In this regard, Plaintiff’s
Second Amended Complaint lacks any factual allegations showing:
“(1) the nature of the training of the sheriff’s officers . . . ,
(2) that any failure to train was a ‘deliberate or conscious’
choice . . ., or (3) that [the officer’s] conduct was caused by a
failure to train.”
2010
WL
93268,
at
Drewry v. Stevenson, Civil No. WDQ-09-2340,
*4
(alterations added).
(D.
Md.
Jan.
6,
2010)
(unpublished)
Moreover, Plaintiff’s reliance on a single
incident of alleged misconduct constitutes an inadequate basis to
assert a such a claim.
Id. (“[A] single incident of misconduct by
a police officer is not sufficient to state a claim for inadequate
training.”).
Accordingly, Plaintiff’s Section 1983 claim against
Sheriff Barnes in his individual capacity should be dismissed.
B.
Section 1983 Claims - Official Capacity
Plaintiff’s official capacity claims against Sheriff Barnes
represent claims against the government entity associated with
Sheriff Barnes.
See Nivens v. Gilchrist, 444 F.3d 237, 249 (4th
Cir. 2006). “Some uncertainty exists as to the proper nomenclature
for the local government entity associated with North Carolina
sheriffs and their personnel and as to the capacity of any such
entity to be sued.”
McNeil v. Guilford Cnty. Sheriff Dep’t, No.
1:09CV999, 2010 WL 377000, at *3 n.3 (M.D.N.C. Jan. 25, 2010)
-9-
(unpublished) (citing cases).
Regardless of the identity of the
entity in question, the standard remains the same: “Official
liability will attach under § 1983 only if ‘execution of a []
policy or custom . . . inflicts the injury.’”
Gantt v. Whitaker,
203 F. Supp. 2d 503, 509 (M.D.N.C. 2002) (Osteen, Sr., J.) (quoting
Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992))
(alterations added).
Here, Plaintiff’s Second Amended Complaint does not assert a
plausible
claim
to
relief
because
it
lacks
allegations regarding any “custom” or “policy.”
adequate
factual
(See Docket Entry
26.) Plaintiff neither has identified a written policy nor offered
factual assertions regarding “a widespread practice that is ‘so
permanent and well settled as to constitute a ‘custom or usage’
with the force of law,’” McFadyen, 786 F. Supp. 2d at 954 (quoting
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Again,
the Second Amended Complaint sets out factual matter only as to a
single incident, coupled with conclusory allegations.
Under these
circumstances, Plaintiff’s official capacity claim against Sheriff
Barnes fails as a matter of law.
C.
State Law Claims
Plaintiff’s Second Amended Complaint also asserts a state law
claim for wrongful death against Sheriff Barnes.
Under North
Carolina law:
[e]very person injured by the neglect, misconduct, or
misbehavior in office of any . . . sheriff . . . or
other officer, may institute a suit or suits against said
officer or any of them and their sureties upon their
respective bonds for the due performance of their duties
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in office in the name of
assignment thereof . . . .
the
State,
without
any
N.C. Gen. Stat. § 58-76-5. “The statutory mandate that the sheriff
furnish a bond works to remove the sheriff from the protective
embrace of governmental immunity, but only where the surety is
joined as a party to the action.”
Messick v. Catawba Cnty., N.C.,
110 N.C. App. 707, 715, 431 S.E.2d 489, 494 (1993), disc. rev.
denied, 334 N.C. 621, 435 S.E.2d 336 (1993).
Here, Plaintiff has
failed to join the surety as a party to this action.
(See Docket
Entry 26.) However, this failure is not fatal and can be corrected
by an amendment to the pleadings.
See Clark v. Burke Cnty., 117
N.C. App. 85, 89-90, 450 S.E.2d 747, 749 (1994).
With respect to the substance of Plaintiff’s claim, Sheriff
Barnes contends that he “is protected by public officer’s immunity
from state law negligence claims against him in his individual
capacity.”
(Docket Entry 20 at 11.)
North Carolina law affords
public officers certain protection from claims under the doctrine
of public official immunity, which declares that “a public officer
who exercises his judgment and discretion within the scope of his
official authority, without malice or corruption, is protected from
liability.”
McCarn v. Beach, 128 N.C. App. 435, 437, 496 S.E.2d
402, 404 (1998) (citation omitted); see also Grad v. Kaasa, 312
N.C. 310, 313, 321 S.E.2d 888, 890 (1984) (“A defendant acts with
malice when he wantonly does that which a man of reasonable
intelligence would know to be contrary to his duty and which he
intends to be prejudicial or injurious to another.”).
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Because Plaintiff has alleged no direct action by Sheriff
Barnes in the incident in question and, as discussed above, has
asserted insufficient factual allegations against Sheriff Barnes to
hold Sheriff Barnes liable for inadequate supervision or training,
any claim against Sheriff Barnes for wrongful death lies only on
principles of respondeat superior, which, unlike as to claims under
Section 1983, can apply to state law torts.
See W.E.T. v.
Mitchell, No. 1:06CV487, 2007 WL 2712924, at *10, 13 (M.D.N.C.
Sept. 14, 2007) (Beaty, C.J.) (unpublished) (finding, in motion to
dismiss
context,
that
state
law
tort
claims
against
local
government could proceed on theory of respondeat superior, while
simultaneously ruling that case could not proceed against said
entity under Section 1983).
Accepting the facts as pled in the Second Amended Complaint as
true, as the Court must do at this stage of the proceedings, see
Iqbal, 556 U.S. at 678, the Court should not dismiss Plaintiff’s
wrongful death action.
Plaintiff alleges that, while unarmed and
after being tasered once, he was “handcuffed behind his back, after
which time he was restrained and then tasered in the back.”
(Docket Entry 26, ¶¶ 18-20.)
At the motion to dismiss stage, said
allegations sufficiently state a claim notwithstanding the public
officer
immunity
doctrine
under
North
Carolina
law,
in
that
tasering an unarmed, restrained individual could be deemed an
action which an officer knew “to be contrary to his duty and . . .
injurious to another,” Grad, 312 N.C. at 313, 321 S.E.2d at 890.
Because public official immunity does not apply as a matter of law,
-12-
the wrongful death claim may proceed against Sheriff Barnes under
principles of respondeat superior.
LEAVE TO AMEND
In his Response Brief, Plaintiff contends:
The instant action arises from a prisoner who died
in [sic] while under the custody and care of Sheriff
Barnes and his deputies. Virtually all information that
will be needed to support allegations must necessarily
come from the defendants as they survived to tell the
tale of Mr. Cobbs [sic] demise. As such, information may
be obtained during discovery in this matter that could
allow a future amendment to the pleadings, which could
support claims that may not currently be sufficiently
supported by allegation. For this reason, Plaintiff asks
that no claim be dismissed and that the alternative
measure of allowing an amendment to the pleadings be
ordered if so needed.
(Docket
Entry
28
at
4-5.)
Defendants,
in
reply,
note
that
“Plaintiff has already been permitted to amend [the] Complaint
twice in the short pendency of this lawsuit” (Docket Entry 31 at
6); that Plaintiff’s request “does not comport with the Federal
Rules of Civil Procedure” (id.); and that dismissing the claims is
“justified” (id.).
Even treating Plaintiff’s request regarding amendment as a
properly filed motion under M.D.N.C. LR7.3(a),3 Plaintiff fails to
meet the applicable standard.
Under Rule 15(a)(2) of the Federal
Rules of Civil Procedure, “[t]he [C]ourt should freely give leave
when justice so requires.”
The Court has some discretion, “but
outright refusal to grant the leave without any justifying reason
appearing for the denial is not an exercise of discretion . . . .”
3
Local Rule 7.3(a) requires that “[e]ach motion shall be set
out in a separate pleading.”
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Foman v. Davis, 371 U.S. 178, 182 (1962).
Reasons to deny leave to
amend a pleading include “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, [and] futility of
amendment,” id.
In this case, as an initial matter, because Plaintiff has not
provided the Court with the substance of any proposed amendment
(see Docket Entry 28), the Court cannot make any determination as
to whether justice requires leave to amend.
Furthermore, to allow
Plaintiff’s claims to survive based on a vague assertion that
Plaintiff may learn facts through discovery that would support his
claims would ignore federal pleading standards.
See Twombly, 550
U.S. at 561 (rejecting “no set of facts language” from Conley v.
Gibson, 355 U.S. 41 (1957), because it would allow “a wholly
conclusory statement of claim [to] survive a motion to dismiss
whenever the pleadings left open the possibility that a plaintiff
might later establish some ‘set of [undisclosed] facts’ to support
recovery”).
Finally, Plaintiff has amended his pleading on two
prior occasions but has failed to properly state a claim regarding
the matters as to which he seeks further leave.
Entries 2, 12, 26.)
(See Docket
In sum, the Court lacks any grounds to grant
Plaintiff’s instant request regarding amendment at this stage.
MOTION TO COMPEL
Plaintiff moves the Court for an order compelling Sheriff
Barnes and Prison Health Services “to produce any and all video
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footage and photography of the incident complained of in []
[P]laintiff’s Complaint including any and all the video footage
photography taken on August 15th 2009 at the location of the
incident complained of in the Complaint.”
Further,
Plaintiff
asserts
that,
(Docket Entry 30 at 1.)
although
Sheriff
Barnes
has
acknowledged “that the requested video exists,” he “has indicated
that [he] will not release any footage without a specific court
order to do so.”
(Id.)
In Response, Sheriff Barnes correctly
notes that the Clerk of Court “has not yet noticed the scheduling
of an Initial Pretrial Conference nor has a Rule 26(f) Plan been
submitted by the Parties nor approved by the Court.
The Court has
not yet issued an Initial Pretrial Order promulgating a discovery
plan or discovery schedule.”
(See Docket Entry 32 at 3.)
For the
reasons stated in Sheriff Barnes’s Response, the Court will deny
the instant Motion to Compel as unripe.
See Fed. R. Civ. P. 26(d).
CONCLUSION
Because Guilford County is an improper party to this action,
the Court should dismiss all claims against it.
With respect to
Plaintiff’s Section 1983 claims against Sheriff Barnes, the Second
Amended Complaint contains insufficient factual matter to state a
claim against Sheriff Barnes in either his individual or official
capacities. However, Plaintiff has asserted a legally viable claim
for wrongful death against Sheriff Barnes under a theory of
respondeat superior.
Finally, because the Court has not yet
entered a scheduling order, Plaintiff’s Motion to Compel is unripe.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
(Docket Entry 30) is DENIED AS UNRIPE but without prejudice to the
refiling of said Motion once discovery has commenced.
IT IS RECOMMENDED that the Motion to Dismiss the Second
Amended Complaint by County of Guilford and Sheriff B.J. Barnes
(Docket Entry 19) be granted in part and denied in part in that the
Court should dismiss Plaintiff’s claims against Guilford County and
Plaintiff’s Section 1983 claims against Sheriff Barnes, but allow
Plaintiff to pursue claims for wrongful death against Sheriff
Barnes based on principles of respondeat superior.
The Clerk
should promptly set this case for an Initial Pretrial Conference.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 31, 2012
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