BIERS v. CLINE, et al
Filing
28
MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR. on 7/24/2015. For the reasons stated herein, Defendants Paul Martin's, Durham County Sheriff's Office's, Michael Andrews', Worth Hill's, The Hartford Financial Services Group, Inc.'s and County of Durham, North Carolina's Motion to Dismiss (Doc. # 17 ) is GRANTED.(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SAMUEL BIERS,
Plaintiff,
v.
TRACEY CLINE, PAUL MARTIN,
DURHAM COUNTY SHERIFF’S
OFFICE, MICHAEL ANDREWS,
WORTH HILL, THE HARTFORD
FINANCIAL SERVICES GROUP,
INC., COUNTY OF DURHAM,
NORTH CAROLINA, and THE
STATE OF NORTH CAROLINA,
Defendants.
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12CV375
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Paul Martin’s, Durham
County Sheriff’s Office’s, Michael Andrews’, Worth Hill’s, The Hartford
Financial Services Group, Inc.’s and County of Durham, North Carolina’s
(collectively “Defendants”) Motion to Dismiss (Doc. #17) pursuant to Rule
12(c) of the Federal Rules of Civil Procedure for failure to state a claim upon
which relief can be granted. The motion has been fully briefed and is ripe
for review. For the reasons that follow, Defendants’ Motion to Dismiss is
granted.
I.
According to the Complaint, on December 23, 2010, Plaintiff Samuel
Biers was offered employment as a magistrate sitting in Durham County,
North Carolina. (Compl. ¶ 12.) During the course of his employment, he
allegedly witnessed several other magistrates take numerous improper and
unlawful actions. (Id. ¶ 13.) Mr. Biers submitted a verified complaint on
March 9, 2011, reporting these alleged violations, along with related
allegations against the then-district attorney, Tracey Cline, a named
defendant in the instant action. In addition to filing his verified complaint,
Mr. Biers objected to and questioned various other incidents related to the
magistrates. (Id. ¶¶ 18-22.) Allegedly in retaliation for his making formal
complaints exposing the misconduct of the magistrates and others, thenSheriff’s Deputy Paul Martin, among others, individually and in concert with
others, agreed to take, and did take, action against him. (E.g., id. ¶¶ 25,
28.)
On April 13, 2012, Mr. Biers filed the Complaint in the instant action
against numerous defendants, alleging thirteen causes of action.1 At issue
1
On July 16, 2012, Defendants Cline and the State of North Carolina filed a
motion to dismiss for lack of jurisdiction (Doc. #10), which the Court granted in
part (Doc. #20).
2
in Defendants’ motion are Mr. Biers’ claims of (1) retaliation in violation of
the First Amendment pursuant to 42 U.S.C. § 1983 against Defendant
Martin in his individual and official capacities, (2) stigmatization pursuant to
42 U.S.C. § 1983 against Defendant Martin in his individual and official
capacities, and (3) “entity liability” pursuant to 42 U.S.C. § 1983 against
Defendant County of Durham, North Carolina and Defendant Durham County
Sheriff2. Defendants argue that Mr. Biers has failed to state claims pursuant
to 42 U.S.C. § 1983 upon which relief can be granted, and the Court
agrees.3
2
Mr. Biers did not define “Durham County Sheriff” in his Complaint, despite
referring to “Durham County Sheriff” in many of his claims. At first glance, it is
difficult to determine if he is referring to Defendant Durham County Sheriff’s
Office, Defendant Hill, or Defendant Andrews. Defendants Hill and Andrews
served as Sheriff of Durham County allegedly from the spring of 2011 to January
1, 2012, and January 1, 2012, to the present, respectively. (Compl. ¶ 5; Answer
¶ 5.) Although Mr. Biers refers to each individual sheriff as Defendant Hill and
Defendant Andrews in paragraph 5 of the Complaint (under the heading “THE
PARTIES”), he also describes each as “the former Durham County Sheriff, Worth
Hill” and “the current elected Durham County Sheriff Michael Andrews,”
respectively, in paragraph 3 of the Complaint (also under the heading “THE
PARTIES”). After careful review of the Complaint, it is determined that Mr. Biers’
repeated reference to “Durham County Sheriff” is a reference to the individual
defendants serving as Sheriff of Durham County during their respective terms, not
Defendant Durham County Sheriff’s Office.
3
Defendants also argue that the Durham County Sheriff’s Office is not a legal
entity capable of being sued, and Plaintiff does not dispute this. Not only has this
Court previously held that the “Sheriff’s Office” is not a legal entity subject to suit,
e.g., Capers v. Durham Cnty. Sheriff Dep’t, No. 1:07CV825, 2009 WL 798924,
*5 (M.D.N.C. Mar. 23, 2009) (noting that plaintiff had already named the
proper party, the sheriff, as a defendant) adopted July 17, 2009, but,
3
II.
A motion for judgment on the pleadings pursuant to Rule 12(c) of the
Rules of Civil Procedure “‘tests only the sufficiency of the complaint and
does not resolve the merits of the plaintiff’s claims or any disputes of fact.’”
Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (quoting Drager v.
PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014)). Such a motion is
analyzed under the same standard as a motion to dismiss for failure to state
a claim under Rule 12(b)(6) of the Rules of Civil Procedure. Id. at 347.
Therefore, the complaint “must 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, 129 S. Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id., 129 S.
Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965); see
also McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780
F.3d 582, 585 (4th Cir. 2015) (noting that a complaint must “contain[]
because Mr. Biers fails to state a claim against Defendant Martin, any claims
against Durham County Sheriff’s Office are dismissed.
4
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face in the sense that the complaint’s factual allegations
must allow a court to draw the reasonable inference that the defendant is
liable for the misconduct alleged”). However, when a complaint states facts
that are “’merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of ‘entitlement to relief.’’” Iqbal,
556 U.S. at 678, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557,
127 S. Ct. at 1966). When evaluating whether the complaint states a claim
that is plausible on its face, the facts are construed in the light most
favorable to the plaintiff and all reasonable inferences are drawn in his favor.
U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131,
136 (4th Cir. 2014). Nevertheless, “labels and conclusions[,]” “a formulaic
recitation of the elements of a cause of action[,]” and “naked assertions . . .
without some further factual enhancement” are insufficient. Twombly, 550
U.S. at 557, 127 S. Ct. at 1966; see also Massey, 759 F.3d at 353 (noting
that the Court is not obligated to accept allegations that are “‘unwarranted
inferences, unreasonable conclusions, or arguments’” or “‘that contradict
matters properly subject to judicial notice or by exhibit’”) (quoting
Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006)).
5
When analyzing a Rule 12(c) motion, a court may consider the answer,
as well. See id. at 347 (noting that the court could consider the complaint,
the answer, matters of public record, exhibits to the answers, and exhibits
to the Rule 12(c) motions that were integral to the complaint and authentic);
Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL 3360644, *2
(M.D.N.C. Aug. 3, 2011). Factual allegations of the answer “‘are taken as
true only where and to the extent they have not been denied or do not
conflict with the complaint.’” Alexander, 2011 WL 3360644 at *2 (quoting
Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C. 1991) and noting that a
defendant cannot rely on facts alleged only in the answer, including
affirmative defenses, which contradict the complaint because a plaintiff is
not required to reply to the answer and all allegations in the answer are
deemed denied).
III.
First, Defendants argue that Mr. Biers’ claim against Defendant Martin
in his individual and official capacities for retaliation in violation of the First
Amendment fails as a matter of law. Mr. Biers claims that “[t]his Court’s
determination [in its July 25, 2013 Order] that the Complaint states an
actionable First Amendment Retaliation claim against Defendant Cline
controls Defendant Martin’s Motion to Dismiss that claim against him.”
6
(Doc. #25 at 4.) It does not. It is determined that Mr. Biers has failed to
state a plausible claim for relief against Defendant Martin for retaliation in
violation of the First Amendment pursuant to 42 U.S.C. § 1983.
A.
A plaintiff alleging a § 1983 claim must allege that (1) the defendant
“deprived plaintiff of a right secured by the Constitution and laws of the
United States,“ and (2) the deprivation was performed under color of state
law. Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
“The First Amendment right of free speech includes not only the affirmative
right to speak, but also the right to be free from retaliation by a public
official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 685 (4th Cir. 2000). In order to state a claim for First
Amendment retaliation, Mr. Biers must allege sufficient facts supporting
three elements: (1) that his speech was protected under the First
Amendment, (2) that Defendant Martin’s retaliatory action adversely
affected Mr. Biers’ constitutionally protected speech, and (3) that a causal
relationship exists between Mr. Biers’ protected speech and Defendant
Martin’s retaliatory action. See Tobey v. Jones, 706 F.3d 379, 387 (4th Cir.
2013) (citing Suarez, 202 F.3d at 685-86). If Defendant Martin’s alleged
retaliatory act is in the form of speech, absent threat, coercion, or
7
intimidation suggesting punishment, sanction, or adverse regulatory action
will imminently follow, his speech does not adversely affect Mr. Biers’ First
Amendment right. Suarez, 202 F.3d at 687.
First, as to whether a plaintiff’s speech is protected under the First
Amendment, “[w]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 547 U.S.
410, 421, 126 S. Ct. 1951, 1960 (2006). However, even if the speech
concerns the subject matter of employment or the public employee
expresses his views inside his office, those factors are not dispositive. Id. at
420-21, 126 S. Ct. at 1959. The “controlling factor” is whether the speech
was made pursuant to the employee’s duties. Id. at 421, 126 S. Ct. at
1959-60. Outside of determining the protection of a public employee’s
speech made during the course of employment, it is clear that discussing the
conduct of public officials in office is constitutionally protected speech. See
Tobey, 706 F.3d at 391 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)
(“Whatever differences may exist about interpretations of the First
Amendment, there is practically universal agreement that a major purpose of
8
that Amendment was to protect the free discussion of governmental
affairs.”)).
Next, “for purposes of a First Amendment retaliation claim under §
1983, a plaintiff suffers adverse action if the defendant’s allegedly
retaliatory conduct would likely deter ‘a person of ordinary firmness’ from
the exercise of First Amendment rights.” Constantine v. Rectors & Visitors
of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). “The
determination of whether government conduct or speech has a chilling effect
or an adverse impact is an objective one – we determine whether a similarly
situated person of ‘ordinary firmness’ reasonably would be chilled by the
government conduct in light of the circumstances presented in the particular
case.” The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006).
In conducting this objective analysis, it is not necessary to find that the
retaliatory action prevents all exercise of the plaintiff’s First Amendment
rights. Constantine, 411 F.3d at 500. “The cause of action [for First
Amendment retaliation] targets conduct that tends to chill such activity, not
just conduct that freezes it completely.” Id. at 500-01.
The Fourth Circuit has stated that adverse action may be found where
the defendant public employer takes action that threatens harm to a public
employee’s employment, Suarez, 202 F.3d at 686; the defendant
9
government official threatens additional regulatory scrutiny of a private
citizen’s business, see Blankenship, 471 F.3d at 529-30; or the defendant
public university harms a plaintiff’s academic standing, see Constantine, 411
F.3d at 500-01. In other words, Mr. Biers must show that Defendant
Martin’s actions “resulted in something more than a ‘de minimis
inconvenience’” to Mr. Biers’ exercise of his First Amendment rights. Id. at
500.
Finally, “[i]n order to establish [a] causal connection, a plaintiff in a
retaliation case must show, at the very least, that the defendant was aware
of [the plaintiff’s] engaging in protected activity.” Constantine, 411 F.3d at
501. “There must also be some degree of temporal proximity to suggest a
causal connection.” Id. (finding the complaint adequately alleged causal
connection where approximately four months elapsed between the exercise
of First Amendment rights and the alleged retaliatory conduct). See also,
e.g., Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004) (finding that
the defendant’s knowledge of the plaintiff’s protected activity and the
passage of nine months from the time of the protected activity and the
alleged retaliatory conduct was sufficient, although a close question, to
allege causation).
10
B.
1.
Mr. Biers sufficiently alleges that his speech is protected under the
First Amendment. Defendants argue that Mr. Biers did not engage in
constitutionally protected speech because his complaint was submitted in
furtherance of his employment as a magistrate. Although Mr. Biers does not
include in the Complaint facts about his official duties as a magistrate, his
alleged speech is not likely among those duties. He alleges that he
petitioned judicial officials of Durham County for the redress of
his grievances by submitting a [verified] complaint alleging
misconduct in office of certain Durham County magistrates and
written objections to certain policies Plaintiff believed invaded
and altered the allocation of judicial responsibility and discretion
established by the laws and constitution of the State of North
Carolina.
(Compl. ¶ 45; see also id. ¶¶ 14-22.) Specifically, in his verified complaint,
he alleged that one magistrate unlawfully carried a handgun without a permit
while on duty, repeatedly left the handgun on top of a desk in a penal
institution where inmates had immediate access to it, conspired with the
then-district attorney and others to exercise influence over witnesses and
the disposition of criminal cases, conspired with the then-district attorney to
unlawfully recall and alter properly issued criminal process, and engaged in
ex parte communications with witnesses after criminal proceedings had been
11
initiated, among other actions. (Id. ¶¶ 14-15.) He also alleged in that same
verified complaint that another magistrate improperly took extended leaves
of absence for which she was paid. (Id. ¶ 16.) In addition to filing his
verified complaint, Mr. Biers allegedly objected to the suspension with pay of
another magistrate who was purportedly found to have committed crimes in
office, a compensation Mr. Biers believed was not permitted by state law.
(Id. ¶¶ 18-20.) He also allegedly inquired about the procedure for initiating
criminal proceedings to charge a magistrate with crimes committed while in
office and in Plaintiffs presence.4 (Id. ¶ 22.) As noted above, speaking
about the conduct of public officials in office, as Mr. Biers alleges that he
did, is constitutionally protected speech.
2.
However, Mr. Biers has not alleged sufficient facts about Defendant
Martin’s purported retaliatory action5 or in support of a causal connection
4
It is not apparent from the Complaint to whom or how Mr. Biers objected to the
failure to apply state laws to a magistrate suspended with pay, to whom or how he
questioned the designation of a magistrate judge as “chief magistrate,” or to whom
or how he inquired about the procedure for initiating criminal proceedings against a
magistrate.
5
Defendant Martin argues that “Plaintiff’s claim for retaliation as stated in the
complaint does not identify any retaliatory adverse employment action taken by
Defendant Martin[.]” Although Defendant Martin is correct in his assertion, Mr.
Biers is not making a claim against Defendant Martin for employer retaliation. Mr.
Biers does not allege that any of the defendants is his employer, and in
Defendants’ brief in support of their motion to dismiss, they assert that none
12
between Mr. Biers’ speech and Defendant Martin’s alleged retaliatory acts.
Not only are many of Mr. Biers’ allegations conclusory, but the nonconclusory factual allegations lack facial plausibility. See Iqbal, 556 U.S. at
680, 129 S. Ct. at 1950 (providing a two-step process for evaluating a
complaint – first, identify legal conclusions that are not entitled to the
assumption of truth and second, identify non-conclusory factual allegations
to determine if they give rise to a plausible suggestion of unlawful conduct).
Mr. Biers makes several conclusory allegations concerning Defendant
Martin’s purported unlawful conduct. He alleges that, after he made the
formal complaints against Magistrate Evans and others, Defendant Martin,
along with Magistrate Evans and Defendant Cline, “agreed to undertake a
course of conduct” against Mr. Biers. (Id. ¶ 25; see also id. ¶¶ 26, 27
(“Magistrate Evans, Defendant Cline, Defendant Martin, and others thereby
conspired . . . .“) He also alleges that Defendant Martin knew when he
submitted his affidavit6 in support of Mr. Biers’ removal, in which he
of them employed Mr. Biers. (Doc. #18 at 13.) Therefore, adverse employment
action is not a requisite allegation. Cf. Durham v. Jones, 737 F.3d 291, 299 (4th
Cir. 2013) (among the factors analyzed in a public employee’s claim of retaliatory
discharge is whether the employee’s speech was a substantial factor in the
employee’s discharge).
6
Defendant Martin’s affidavit in support of Mr. Biers’ removal is an exhibit to
Defendants’ brief in support of their motion to dismiss. (Doc. #18 Ex. 1 at 24.)
This affidavit is a public document and is integral to the complaint and was filed
with a Certificate of True Copy from the Office of the Clerk of Superior Court in
13
allegedly stated that Mr. Biers misrepresented his date of birth in his
employment application, that Mr. Biers had submitted a copy of his driver’s
license with his employment application that clearly showed his correct birth
date, and that Defendant Martin omitted this fact from his affidavit. (Id. ¶
28.j.; cf. Martin Aff. ¶¶ 3-6 Doc. #18 Ex. 1 at 24.) Mr. Biers further
alleges, “Upon information and belief, Magistrate Evans, Defendant Cline,
and Defendant Martin agreed to disseminate the false statements relating to
Plaintiff’s employment application and prior criminal record” to the media.
(Id. ¶ 31.)
Although this alleged conspiracy and related conduct sound as though
they would likely deter a person of ordinary firmness from exercising his
First Amendment rights, these allegations are conclusory, “naked assertions
devoid of further factual enhancement.” Iqbal, 556 U.S. at 678, 129 S. Ct.
at 1949 (citation omitted). There are no facts alleged as to a meeting of the
minds to support the conspiracy allegations. Likewise, there are no facts
alleged to support the conclusion that Defendant Martin knew information
that he deliberately omitted. Therefore, these are not entitled to be assumed
true. Id. at 681, 129 S. Ct. at 1951.
Durham County. Therefore, the Court may consider is. See Philips, 572 F.3d at
180.
14
Mr. Biers’ non-conclusory factual allegations against Defendant Martin
do not plausibly suggest that he acted unlawfully. Defendant Martin is
alleged to have requested and received reports from Michigan and Nevada
that Mr. Biers had been involved in criminal proceedings,7 to have prepared
an affidavit in support of Mr. Biers’ removal from office, and to have
provided Kenya Newell with information about Mr. Biers8 that she used in
her affidavit in support of Mr. Biers’ removal.9 (Compl. ¶¶ 28.h., 28.j., 29;
cf. Martin Aff. Doc. #18 Ex. 1 at 24, Newel Aff. Doc. #18 Ex. 2 at 14-18.)
“Defendants” are alleged to have made false statements relating to Mr.
Biers’ employment file and criminal record to a news reporter.10 (Id. ¶ 32.)
7
Although it is ultimately determined that Mr. Biers has failed to state a claim for
relief against Defendant Martin, it is worth noting that the allegations in paragraph
28.h. sound in fraud and trigger the heightened pleading requirements of Rule 9(b)
of the Federal Rules of Civil Procedure. As alleged, the facts in paragraph 28.h.
are not stated with sufficient particularity.
8
The allegations in paragraph 29 do not clearly attribute the provision of false
claims that Mr. Biers had a criminal record and protected information from his
personnel files to a particular party. As written, Mr. Biers alleges that Defendant
Martin both made false claims about Mr. Biers and gave protected personnel
information to Newell. However, the preceding allegations only attribute actions
surrounding Mr. Biers’ criminal history to Defendant Martin. Cline, on the other
hand, is the only party alleged to have obtained Mr. Biers’ personnel files.
9
Newell’s affidavit in support of Mr. Biers’ removal is an exhibit to Defendants’
brief in support of their motion to dismiss. (Doc. #18 Ex. 2 at 14-18.) See supra
n. 6.
10
Although Mr. Biers does provide specific, albeit deficient, allegations against
Defendant Martin elsewhere in the Complaint, plaintiffs who refer generally to
“Defendants” are found to have employed a “conclusory and shotgun approach . .
. [that] fails to provide each Defendant the factual basis for the claim(s) against
him . . . .” Luna-Reyes v. RFI Const., LLC, 57 F. Supp. 3d 495, 503 (M.D.N.C.
2014).
15
Mr. Biers’ factual allegations are similar to those in Twombly where
the plaintiff alleged that the defendants engaged in parallel conduct and,
therefore, they had to have entered into a conspiracy in violation of § 1 of
the Sherman Act.11 550 U.S. at 551, 556-57, 127 S. Ct. at 1962-63, 1966.
Because the plaintiff was required to state enough factual matter, taken as
true, to suggest that an agreement was made, the allegation of parallel
conduct and “a bare assertion of conspiracy” was not sufficient. Id. at 55657, 127 S. Ct. at 1966 (“A statement of parallel conduct, even conduct
consciously undertaken, needs some setting suggesting the agreement . . . “
and “further circumstances pointing toward a meeting of the minds . . . .“).
This is because the pleading stage requires “allegations plausibly suggesting
(not merely consistent with)” the alleged unlawful conduct. Id. at 557, 127
S. Ct. at 1966.
Similarly, in McCleary-Evans, the plaintiff had alleged a violation of
Title VII for failure to hire because of race or sex. 780 F.3d at 585. She
alleged that the defendant did not hire her because of the decision-makers’
11
The Twombly Court characterized the “border” in the case as the line “between
the factually neutral and the factually suggestive.” 550 U.S. at 557 n. 5, 127 S.
Ct. at 1966 n. 5. Not only is the border in Mr. Biers’ Complaint the line between
the factually neutral and the factually suggestive, but, as described above, also
“the line between the conclusory and the factual.” See id. (citing DM Research,
Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (1999)). “Each [such line]
must be crossed to enter the realm of plausibility.” Id.
16
bias against African-American women, as purportedly supported by the
allegation that “’[d]uring the course of her interview, and based upon the
history of hires within [the Office of Environmental Design], . . . both [of the
decision-makers] predetermined to select for both positions a White male or
female candidate.’” Id. at 585-86 (third bracket added). However, there
was no factual basis for what happened during the course of her interview.
Id. at 586. The plaintiff’s conclusory allegations could only be filled by
“speculation as to why two ‘non-Black candidates’ were selected to fill the
positions instead of her.” Id. Although the allegation that non-Black
decision-makers hired non-Black applicants instead of the plaintiff was
“consistent with discrimination,” it did not “alone support a reasonable
inference that the decision[-]makers were motivated by bias.” Id.
Here, as in McCleary-Evans, only speculation can fill the gaps in Mr.
Biers’ Complaint. Mr. Biers does not allege how Defendant Martin knew
Evans or Cline, or that they did know each other. He makes no allegation
connecting Defendant Martin to Evans or Cline, other than conclusory
allegations that they agreed to take some action against Mr. Biers. Unlike
Cline, Defendant Martin is not alleged to have been named in any of Mr.
Biers’ complaints nor to have participated in any of the alleged actions taken
by Evans or Cline. There is no allegation that Defendant Martin even knew
17
about Mr. Biers’ complaints. There is no allegation whatsoever as to why
Defendant Martin would take any of these alleged actions, other than the
conclusory allegation that he did so in retaliation for Mr. Biers’ complaints
about which Defendant Martin is not alleged to know and about people other
than Defendant Martin with whom he is not even alleged to have a
connection. Although the temporal proximity of Defendant Martin’s alleged
conduct is within approximately two months of Mr. Biers’ filing of the
complaint and other related actions, there are not enough other nonconclusory factual allegations to support a First Amendment claim against
Defendant Martin.12
IV.
Defendants also argue that the claim of stigmatization in violation of
42 U.S.C. § 1983 against Defendant Martin in his individual and official
capacities fails as a matter of law because Mr. Biers has not alleged a
deprivation of due process and has admitted voluntary resignation. The
Court agrees. “[I]n order to claim entitlement to the protections of the due
process clause – either substantive or procedural – a plaintiff must first
show that he has a constitutionally protected liberty or property interest, and
12
Because Mr. Biers has not stated a First Amendment claim against Defendant
Martin, Defendant Martin’s qualified immunity argument need not be addressed.
18
that he has been deprived of that protected interest by state action.” Stone
v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)
(citations omitted). If a plaintiff is claiming injury to his reputation, he “must
demonstrate that his reputational injury was accompanied by a state action
that ‘distinctly altered or extinguished’ his legal status if he wants to
succeed.” Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th Cir.
2012) (quoting Paul v. Davis, 424 U.S. 693, 711, 96 S. Ct. 1155 (1976)).
See also id. at 314-15 (“[P]laintiffs in cases involving allegedly defamatory
statements by the government [are required] to show more than reputational
injury in order to prevail on a constitutional claim.”).
The Fourth Circuit has recognized that, in the context of public
employment, “a loss of government employment accompanied by a public
employer’s stigmatizing remarks constitutes a deprivation of a liberty
interest.” Id. at 315 (citing Ridpath, 447 F.3d at 309). In other words, a
public employee claiming a violation of his liberty interest in his reputation
“must allege that the charges against him: (1) place a stigma on his
reputation; (2) were made public by the employer; (3) were made in
conjunction with his termination or demotion; and (4) were false.” Sciolino
v. City of Newport News, 480 F.3d 642, 646 (4th Cir. 2007). However,
when government action may affect a private citizen’s private employment
19
opportunities, “that injury does not work a change in legal status.”
Shirvinski, 673 F.3d at 315 (noting that the Supreme Court rejected the
plaintiff’s allegation in Paul that the government’s action “would seriously
impair his future employment opportunities” because “the mere defamation
of an individual . . . was [not] sufficient to invoke the guarantees of
procedural due process absent an accompanying loss of government
employment”). Particularly relevant, when a plaintiff resigns his employment
“of his own free will even though prompted to do so by events set in motion
by his employer, he relinquishe[s] his property interest voluntarily and thus
cannot establish that the state deprived him of it within the meaning of the
due process clause.” Stone, 855 F.2d at 173.
As an initial matter, Mr. Biers’ factual allegations against Defendant
Martin are insufficient, as explained above. Even if they were not
conclusory and glued together with speculation, Mr. Biers’ stigmatization
claim still fails. While employed as a magistrate sitting in Durham County,
Mr. Biers was likely a public employee. However, he never alleges that any
of Defendants was his employer13 or otherwise identifies who or what entity
13
In Defendants’ brief in support of their motion, they state that Mr. Biers “was
not employed by Defendant Martin or the other defendants.” (Doc. #18 at 13.)
Likewise, in Cline’s brief in support of her motion, she states that neither she, “as
the district attorney, nor the remaining defendants, as county officials, were
Plaintiff’s employer.” (Doc. #11 at 9.) The inference is that the State of North
Carolina was Mr. Biers’ employer. However, he never alleges that fact.
20
was his employer. Without any allegation that any of Defendants employed
him, the analysis of Mr. Biers’ due process claims as those of a public
employee is not applicable. Cf. Shirvinski, 673 F.3d at 315 (noting that
Shirvinski was not an employee of nor in direct contractual relationship with
the government and, therefore, because he did not suffer a loss of public
employment, case law analyzing due process in the context of public
employment was not germane). Nevertheless, it could be argued that Mr.
Biers is alleging that Defendants, although not his employer, stained his
reputation and forced him to resign from office. The problem is that, other
than alleging that Defendants’ actions stigmatized him, Mr. Biers has not
alleged that Defendants also took actions that “distinctly altered or
extinguished his legal status.”
Instead, he alleges that, “As a result of the public obloquy and outrage
fomented by Defendants’ and other individuals’ false statements, echoed by
media organizations, Plaintiff was deprived of the public trust that is
necessary to carry out the duties of a magistrate judge, and therefore
resigned.” (Compl. ¶ 35.) Assuming arguendo that Mr. Biers had a property
interest in his continued employment,14 he has not alleged that any of
14
Although Mr. Biers alleges that he suffered a loss of “property interests” (Compl.
¶ 60), he alleges no facts to support such a conclusion.
21
Defendants was his employer. Even if he had, his own allegations indicate
that he resigned of his own will. Furthermore, investigation into the
allegations against Mr. Biers cleared his name. See infra.
He also alleges that, “Defendants’15 stigmatization of Plaintiff
disqualified him from pursuing his professional calling as a judicial officer
because Plaintiff could no longer be free of the appearance of impropriety in
conducting the affairs of any such office as required by the North Carolina
Code of Judicial Conduct.” (Compl. ¶ 58.) This alleged impairment of future
employment as a judicial officer is likewise insufficient to state a due
process claim. See Paul, 424 U.S. at 697, 712, 96 S. Ct. at 1159, 1166
(finding plaintiff’s allegations of violation of due process insufficient where
plaintiff alleged that the police’s designating him an “active shoplifter”
“would seriously impair his future employment opportunities”). If Plaintiff
had alleged that any of Defendants was his employer, this analysis might
have been different, but he did not. See Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 574, 92 S. Ct. 2701, 2707 (1972) (“[A] State, in
regulating eligibility for a type of professional employment, cannot foreclose
a range of opportunities in a manner . . . that contravene(s) . . . Due
15
“Defendants” appears to refer to Defendant Cline and Defendant Martin.
22
Process, and, specifically, in a manner that denies the right to a full prior
hearing.”16) (internal citations omitted).
Mr. Biers also alleges that,
On May 25, 2011, [apparently after Mr. Biers’ resignation17] the
attorney appointed by the Court to prosecute the removal action
against Plaintiff . . . advised the Superior Court Judge presiding
over the action . . . that he had reviewed every case over which
Plaintiff presided, and could find no instance in which Plaintiff
abused his power, abused any process, abused his authority,
violated any law, or otherwise engaged in any form of
misconduct at all.
(Compl. ¶ 36.) The presiding judge “dismissed the proceedings seeking
Plaintiff’s removal from office.” (Id. ¶ 38.) Had Mr. Biers not resigned, he
would have been afforded the opportunity to answer in court to the removal
proceedings against him, and he has not alleged that Defendants denied him
the opportunity to defend himself in those proceedings. Cf. Codd v. Velger,
429 U.S. 624, 627, 97 S. Ct. 882, 883-84 (1977) (explaining that in a case
of alleged stigmatization “the remedy mandated by the Due Process Clause
of the Fourteenth Amendment is an opportunity to refute the charge” and
16
Even if Mr. Biers had alleged that one of Defendants employed him, it is likely
the Court’s conclusions would be the same, because of Mr. Biers’ insufficient
allegations against Defendant Martin and his allegations that proceedings were
commenced against him in a court of law and that those proceedings cleared his
name. See infra.
17
Mr. Biers does not provide the date that he allegedly resigned, but in the
sequence of allegations surrounding the culmination of Defendants’ alleged
retaliatory acts, it appears from the Complaint that Mr. Biers’ resignation occurred
prior to the dismissal of the proceedings against him.
23
“clear his name”). Moreover, he has alleged that, even after he resigned,
the attorney assigned to prosecute the matter advised the court that after
careful review of Mr. Biers’ actions, he found no misconduct at all and the
court dismissed the action. In sum, Mr. Biers has failed to sufficiently allege
a claim of stigmatization against Defendant Martin in his individual or official
capacity.
V.
Next, Defendants argue that Mr. Biers’ claims under Monell, referring
to Mr. Biers’ claim of “entity liability” against Defendant County of Durham
and Defendant County Sheriff, should be dismissed. The Court agrees. Mr.
Biers has neither sufficiently stated a claim against Defendant Martin, as
explained above, nor pled sufficient facts against Defendant County of
Durham and Defendant County Sheriff.
“Local governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where . . . the action that is
alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers.” Monell, 436 U.S. at 690, 98 S. Ct. at 2035-36. To state a
claim for local government liability, “[a] plaintiff must show (1) an official
policy or custom (2) that is fairly attributable to the municipality (3) that
24
proximately caused the deprivation of a constitutional right.” Cherry v. City
of Greensboro, No. 12-cv-217, 2013 WL 422857,*6 (M.D.N.C. Feb. 4,
2013) (citing Pettiford v. City of Greensboro, 556 F. Supp. 2d 512, 530
(M.D.N.C. 2008)). The policy at issue “may be found in written ordinances
and regulations, in certain affirmative decisions of individual policymaking
officials, or in certain omissions on the part of policymaking officials that
manifest deliberate indifference to the rights of citizens.” Carter v. Morris,
164 F.3d 215, 218 (4th Cir. 1999) (internal citations omitted). In addition,
a local governing body’s custom may be a source of liability if it is “a
practice [that] is so ‘persistent and widespread’ and ‘so permanent and well
settled as to constitute a custom or usage with the force of law.’” Id.
(quoting Monell, 426 U.S. at 691, 98 S. Ct. 2018). The local governing
body can also be liable if the alleged constitutional violation was caused by
an individual official’s actions that are found to represent the governing
body’s official policy. Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d
518, 522-23 (4th Cir. 2000). However, “liability only attaches where the
decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered.” Id. at 523 (citation omitted). A “final
policymaking official” is “a [local government] official [with] the
25
responsibility and authority to implement final municipal policy with respect
to a particular course of action.” Id.
State law dictates who has final policymaking authority. See Pembaur
v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292 (1986). In North
Carolina, deputy sheriffs are treated as employees of the Sheriff, not the
county. See Clark v. Burke Cnty., 117 N.C. App. 85, 89, 450 S.E.2d 747,
749 (N.C. Ct. App. 1994) (citing N.C. Gen. Stat. § 153A-103(1)). “Thus,
under North Carolina law, the sheriff, not the county encompassing his
jurisdiction, has final policymaking authority for hiring, supervising, and
discharging personnel in the sheriff’s office.” Parker v. Bladen Cnty., 583 F.
Supp. 2d 736, 739 (E.D.N.C. 2008).
Mr. Biers alleges that Defendant Martin, Defendant County of Durham,
and Defendant County Sheriff are liable for the violations of his
constitutional rights because
a. Officials with final policy-making authority for the Durham
County Sheriff and the County of Durham participated in the
conduct that caused the foregoing deprivations of Plaintiff’s
constitutional rights;
b. Officials with final policy-making authority for the Durham
County Sheriff and the County of Durham ratified the conduct
and decisions that caused the foregoing deprivations of
Plaintiff’s constitutional rights; and
c. The deprivations of Plaintiff [sic] constitutional rights were
caused by the Durham County Sheriff’s and the County of
Durham’s constitutionally inadequate training.
26
(Compl. ¶65a.-c.) However, Mr. Biers has failed to allege any facts to
support these “[t]hreadbare recitals of the elements of a cause of action,
[which are] supported by mere conclusory statements.” Iqbal, 556 U.S. at
678, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 555, 127 S. Ct.
1955 and noting that “[a]lthough for purposes of a motion to dismiss, [the
court] must take all of the factual allegations in the complaint as true, [the
court is] ‘not bound to accept as true a legal conclusion couched as a
factual allegation’”).
Mr. Biers has not alleged the identities of any of the officials with final
policy-making authority18 nor has he alleged facts identifying what policies
are at issue, how the officials with final policy-making authority participated
in the alleged unconstitutional conduct, how those officials ratified the
alleged unconstitutional conduct, or what training is at issue and how it was
inadequate. Instead, Mr. Biers’ allegations focus on the conduct of
Defendant Martin, then a Sheriff’s Deputy, with respect to his treatment of
Mr. Biers between March and April 2011, with no mention of either
Defendant Andrews, Defendant Hill, or Durham County after their inclusion
in “THE PARTIES” section and with no suggestion that Defendant Martin’s
18
The only official that Mr. Biers has alleged, albeit insufficiently, participated in
the retaliatory conduct is Defendant Martin, then a Sheriff’s Deputy. He has not
alleged that Defendant Martin had final policy-making authority over anything.
27
actions were part of larger pattern of similar conduct. Mr. Biers has failed to
sufficiently allege liability against either Defendant County of Durham or
Defendant County Sheriff.
VI.
Defendants also “join co-defendants [Cline and State of North
Carolina] in requesting the Court decline jurisdiction over the state law
claims”19 because “Defendants herein have demonstrated why the Court
should dismiss all claims over which it has original jurisdiction.” Because
Mr. Biers has failed to state a claim against Defendants for a violation of the
First Amendment under § 1983, for stigmatization under § 1983, or for
“entity liability” under § 1983, the Court will decline to exercise jurisdiction
over the claims alleging violations of state law. Therefore, those claims
against Defendants are dismissed.
VII.
In the last paragraph of their motion to dismiss, Defendants seek an
award of attorney’s fees pursuant to 42 U.S.C. § 1988. It should be
observed that the bar for a prevailing defendant in a 42 U.S.C. § 1983 case
to establish entitlement to attorney’s fees is extremely high. See, e.g., Fox
19
In its July 25, 2013 Order, the Court dismissed all claims, including the claimed
violations of state law, seeking money damages against the State of North Carolina
and Cline for lack of subject matter jurisdiction.
28
v. Vice, ___ U.S. ___, 131 S. Ct. 2205 (2011); Unus v. Kane, 565 F.3d 103
(4th Cir. 2009). If Defendants intend to pursue an award of attorney’s fees,
they must file a motion for attorney’s fees and are instructed to follow Local
Rule 54.1 before doing so.
VIII.
For the reasons stated herein, Defendants Paul Martin’s, Durham
County Sheriff’s Office’s, Michael Andrews’, Worth Hill’s, The Hartford
Financial Services Group, Inc.’s and County of Durham, North Carolina’s
Motion to Dismiss (Doc. #17) is GRANTED.
This the 24th day of July, 2014.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
29
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