HAYNES et al v. THE CITY OF DURHAM, N.C. et al

Filing 30

MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 6/24/2014, that the Officer Defendants' motion to dismiss (Doc. 23 ) is GRANTED IN PART AND DENIED IN PART as set out herein. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBYN HAYNES; ERIC JACKSON,
Plaintiffs,
v.
CITY OF DURHAM, N.C.; MARK
WENDELL BROWN, JR.; DANNY
REAVES; TIMOTHY STANHOPE;
LAWRENCE VAN DE WATER; VINCENT
PEARSALL; JERRY YOUNT,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

1:12cv1090

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiffs Robyn Haynes and Eric Jackson bring suit against
six Durham police officers

–

Reaves,

Lawrence

Timothy

Stanhope,

Mark

Wendell Brown, Jr., Danny
Van

de

Water,

Vincent

Pearsall, and Jerry Yount (“Officer Defendants”) – and the City
of Durham (“the City”) for alleged violations of Plaintiffs’
federal constitutional rights pursuant to 42 U.S.C. §§ 1983,
1985, and 1986, as well as alleged violations of North Carolina
law.

Before the court is the Officer Defendants’ motion to

dismiss several of Plaintiffs’ claims pursuant to Federal Rule
of Civil Procedure 12(b)(6).

(Doc. 23.)

For the reasons set

forth below, the motion will be granted in part and denied in
part.

I.

BACKGROUND
The

facts,

viewed

in

the

light

most

favorable

to

Plaintiffs, are as follows:
On the morning of October 8, 2009, Jackson borrowed Haynes’
car and drove it from a gas station to his nearby home at 1401
Cherrycrest Drive in Durham, North Carolina.
¶¶ 15, 16.)

(Doc. 1 (“Compl.”)

After Jackson parked the car and began walking

toward his home, Officer Brown approached quickly in his patrol
car and ordered Jackson back into his car.
Jackson

complied

and,

upon

Brown’s

(Id. ¶¶ 17-18.)

request,

driver’s license and Haynes’ registration.

produced

(Id. ¶ 19.)

refused to tell Jackson why he was being detained.
Corporal

Pearsall

then

arrived

and

Jackson, saying “I don’t know him.”

spoke

his
Brown

(Id. ¶ 20.)

with

Brown

about

(Id. ¶¶ 21-22.)

Pearsall called for a K9 unit, which searched Jackson, his
car, and the exterior of his house.

(Id. ¶¶ 23-24.)

The K9 did

not alert to anything and was taken from the scene, but Brown
continued to detain Jackson.
approximately

an

hour

after

(Id. ¶¶ 25-26.)
the

K9

unit

At 10:54 a.m.,

left,

Brown

issued

Jackson a citation for driving over the line separating travel
lanes on a two-lane road, in violation of N.C. Gen. Stat. § 20140.3.

(Id. ¶ 27.)

Plaintiffs allege that Jackson did not

commit that traffic infraction.

(Id. ¶ 28.)

2

Jackson took the citation from Brown and entered his home,
but the officers stayed outside for another 45 minutes.
¶¶ 29-30.)

(Id.

Shortly after noon, Jackson left his house to take

his daughter to a doctor’s appointment.

(Id. ¶ 31.)

As he was

leaving, he took a garbage can from his home to the curb.
¶ 32.)
other

(Id.

Jackson got in his car to leave, and Brown and several
Durham

officers1

police

moved

Jackson’s exit from his driveway.

their

vehicles

(Id. ¶ 33.)

to

block

Brown then

searched through the garbage Jackson had taken to the curb and
found a cigar butt.

(Id. ¶¶ 34-36.)

Plaintiffs allege that

Brown told Pearsall he had found no evidence of a crime, but
that he had found a cigar butt.

(Id. ¶ 36.)

Brown left to get

a warrant based on the cigar butt found in Jackson’s trash.
(Id.)
While Brown was away, the officers continued to prevent
Jackson

from

(unspecified)
home.

leaving
point,

the

premises.

Jackson

left

his

(Id.
car

¶

37.)

and

At

reentered

some
his

(Id. ¶ 43 (alleging that later “Jackson and his family

decided

to

try

to

leave

their

home”).)

Pearsall

directed

Officer Van de Water to guard the front door, which he did, then
Pearsall

shouted

“Lock

it

down!”

moved to the front of the house.

1

Plaintiffs
arrived.

do

not

identify

the

3

and

the

remaining

(Id. ¶¶ 37-38.)

officers

or

officers

The officers

indicate

when

they

stayed at the front of the house until Brown returned.

(Id.

¶ 38.)
While inside his home, Jackson called 911 twice to report
the officers’ conduct.

(Id. ¶¶ 39-41.)

A responding officer

arrived at Jackson’s home and spoke with the other officers
there.
officer

(Id. ¶ 42.)
knew

the

Plaintiffs allege that this (unidentified)
other

reasonable

suspicion

intervene.

(Id.)

officers

to

detain

had

no

probable

Jackson

and

cause

yet

did

The responding officer left the scene.

or
not

(Id.)

When Jackson tried to leave the house, officers handcuffed
him and had him sit on the front steps.
fifteen

minutes

later,

Officer

Stanhope

(Id. ¶ 43.)
put

Jackson

About
in

his

patrol car, turned up the heat and music volume to their maximum
levels, and shut the door, locking in Jackson, who was still
handcuffed.

(Id. ¶ 44.)

Two hours later, Brown returned with a

warrant, which he allegedly obtained by “fabricating probable
cause,” making false statements, and omitting material facts.
(Id. ¶¶ 45, 46.)
officers refused.

Jackson asked to see the warrant, but the
(Id. ¶ 48.)

Two K9 units arrived and searched Jackson, his car, and the
interior and exterior of his home, but they did not alert to
anything.
Haynes’

(Id.

car,

¶¶

which

49-52.)
Jackson

The
had

officers

been

then

driving.

disassembled
(Id.

¶

53.)

Stanhope removed the back seats from the car, put them on the
4

driveway, and jumped up and down on them.
other

officers

substances;

tested

those

parts

tests

were

of

Brown and

car

for

controlled

(Id.

the

(Id.)

¶

negative.

54.)

Brown

seized the vents and other parts of Haynes’ car for further
testing.

Some of the Defendants2 accused Jackson of

(Id. ¶ 55.)

destroying evidence, and he was taken to the Durham County Jail
for

processing.

possession

of

(Id.
cocaine,

traffic infraction.
Plaintiffs

¶

58.)

felony

He

was

charged

possession

of

with

heroin,

felony
and

a

(Id.)

allege

that

none

of

Defendants’

searches

and

tests, including later forensic tests conducted by the North
Carolina State Bureau of Investigation, revealed any trace of
controlled substances.
State

of

North

against Jackson.
Plaintiffs

(Id. ¶¶ 56-57, 59-61.)

Carolina

voluntarily

dismissed

all

charges

(Id. ¶ 133.)
filed

their

complaint

asserting thirteen causes of action.
13.)

Eventually, the

on

October

7,

2012,

The City answered.

(Doc.

The Officer Defendants now move to dismiss several of

Plaintiffs’ claims pursuant to Federal Rule of Civil Procedure
12(b)(6).

(Docs. 23, 24.)

Plaintiffs have responded (Doc. 28),

and the Officer Defendants have replied (Doc. 29).

The motion

is now ripe for consideration.

2

The complaint
Jackson.

does

not

specify

5

which

Officer

Defendants

accused

II.

ANALYSIS
A.

Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a
complaint must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.
Rule

of

Civil

Procedure

12(b)(6),

“a

complaint

Under Federal
must

contain

sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
pleads

factual

reasonable

A claim is plausible “when the plaintiff

content

inference

misconduct alleged.”

that

that

allows

the

the

defendant

court
is

to

liable

draw

the

for

the

Id. (citing Twombly, 550 U.S. at 556).3

A

12(b)(6) motion to dismiss “challenges the legal sufficiency of
a

complaint

considered

alleged are true.”

with

the

assumption

that

the

facts

Francis v. Giacomelli, 588 F.3d 186, 192

(4th Cir. 2009) (internal citations omitted).
B.

Claims Against City Supervisors

Plaintiffs

assert

several

claims

against

Supervisors” in their official capacities.
138-43.)

They

describe

these

3

“City

unnamed

“City

(Compl. ¶¶ 97-113,

Supervisors”

as

“the

The Officer Defendants cite the “no set of facts” standard in
addition to citing the “plausibility” standard of Iqbal. (Doc. 24 at
5-6.)
The Supreme Court has characterized the “no set of facts”
standard as “best forgotten as an incomplete, negative gloss on an
accepted pleading standard.” Twombly, 550 U.S. at 563.

6

individuals

employed

by

the

City

as

supervisors

the

(Id. ¶ 10.)

individual defendants named in this action.”

of

The

Officer Defendants now move to dismiss the claims against these
unidentified supervisors as duplicative, because they are being
sued only in their official capacities, and the City is also
being

sued.

(Doc.

24

at

10.)

Plaintiffs

appear

to

have

abandoned their claims against the “City Supervisors”; they are
not mentioned once in Plaintiffs’ response.
The

claims

against

these

“City

(Doc. 28.)

Supervisors”

in

their

official capacities are indeed duplicative of the claims against
the City.

See infra II.D.

identified

in

the

These individuals are also not

complaint,

not

listed

as

party

complaint’s caption, and not served in the action.

in

the

Moreover,

Plaintiffs appear to have abandoned their claims against them.
Therefore,

the

claims

will

be

dismissed,

but

because

it

is

unclear whether Plaintiffs can cure the pleading deficiency, the
dismissal will be without prejudice.
C.

Claims Against Reaves and Yount

Reaves and Yount move to dismiss all claims against them on
the grounds the complaint fails to state any specific wrongful
action by either of them.

(Doc. 24 at 7.)

They contend that

their mention in “broad recitations of the elements of numerous
causes of action” and the general allegation of Yount’s improper
supervision are insufficient.

(Id. at 7-8.)
7

Plaintiffs respond

that

both

“[p]articipated

in

and

[r]atified”

violations alleged in the complaint.

the

various

(Doc. 28 at 11.)

They

cite specific paragraphs of the complaint in support of this
contention.

(Id. at 11-13.)

Reaves
complaint
Neither

and

is

Yount

short

Defendant

section.

on
is

are

correct

facts

and

mentioned

(Compl. ¶¶ 15-61.)

that,

long
in

on

the

as

to

legal

them,

the

conclusions.

complaint’s

“Facts”

Virtually every mention of them is

limited to “[t]hreadbare recitals of the elements of a cause of
action.”

Iqbal,

556

U.S.

at

678.

The

only

fact

alleged

relating to them is that some or all of the events complained of
occurred “in their presence.”
86 (Reaves and Yount).)
indirect

theories

of

(Compl. ¶¶ 63, 101 (Yount only),

Such factual allegations relate only to
liability

(id.

¶¶ 63,

101

(supervisory

liability), 86 (bystander liability)) and are insufficient to
support

any

common-law
claims

cause

of

malicious

based

on

action

based

prosecution

unlawful

search

on

(id.
and

direct
¶¶

acts,

131-37)

seizure

(id.

or

such
§

as

1983

¶¶ 68-72),

malicious prosecution (id. ¶¶ 73-78), or concealment of evidence
(id. ¶¶ 79-83).4

4

Because acquiescence in this context can amount to a conspiracy
agreement, Plaintiffs’ allegations do sufficiently state a claim
against Reaves and Yount for conspiracy under § 1983. See infra II.H.
It is unnecessary to address Reaves and Yount specifically regarding
the § 1985, § 1986, and common-law obstruction of justice claims, as
those claims will be dismissed as to all the Officer Defendants. See
infra II.I, II.J, II.K.

8

In their response, Plaintiffs seek to avoid this result by
again reciting legal conclusions regarding what Reaves and Yount
did (Doc. 28 at 11-13), but Plaintiffs have done no more than
insert Reaves’ and Yount’s names into elements of causes of
action.

For example, Plaintiffs allege that

. . . Yount and Reeves [sic] both tacitly or expressly
agreed to and, in fact, did unlawfully search and
seize Jackson’s person, Jackson’s home, and Haynes’
car without a warrant, probable cause, reasonable
suspicion,
or
any
other
legally
sufficient
justification[.] . . .
Reaves and Yount initiated
criminal proceedings against Jackson without probable
cause, reasonable suspicion, or any other legally
sufficient justification; . . . they acted with malice
and
deliberate
indifference
to
Jackson’s
constitutional rights[.]
(Id. at 11-12.)

Plaintiffs have the obligation of

alleging

“factual content that allows the court to draw the reasonable
inference

that

alleged.”

the

Iqbal,

defendant
556

U.S.

is

at

liable

678.

for

the

misconduct

Plaintiffs’

“formulaic

recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.

Therefore, all of the claims against

Reaves and Yount premised on direct liability will be dismissed.
Because the Officer Defendants also challenge the claims
against Reaves and Yount specifically for both indirect theories
of

liability

address

the

claims infra.

–

bystander

legal

and

supervisory

sufficiency

of

See infra II.F, II.G.

9

the

–

the

complaint

court
as

to

will
those

D.

Official Capacity Claims

The Officer Defendants move to dismiss Plaintiffs’ claims
against them in their official capacities as being duplicative
of their claims against the City, as the City is the true party
in interest.

(Doc. 24 at 9-10.)

Plaintiffs “do not object to

dismissal of their official capacity federal law claims against
the City’s employees so long as the City is substituted for them
or is already named as a defendant in those claims.”
at 13.)

(Doc. 28

Thus, the claims against the Officer Defendants in

their official capacities made in Counts I through IX will be
dismissed.
Plaintiffs object to dismissal of their official capacity
state-law claims, however, on that basis because they have been
unable

to

find

any

authority

for

“extending

the

principles

articulated in Kentucky v. Graham, 473 U.S. 579, 166 (1985)” to
state-law claims.

(Doc. 28 at 13-14.)

Under North Carolina

law, “a public officer sued in his official capacity is simply
another way of suing the public entity of which the officer is
an agent.”

Thompson v. Town of Dallas, 543 S.E.2d 901, 904

(N.C. Ct. App.

2001) (plaintiffs sued police officer in his

individual

and

official

him).

Because

employed

capacities,
the

City

as

remains

well
the

as
real

town

that

party

in

interest and Plaintiffs have sued the City on all their state-

10

law claims, those same claims against the Officer Defendants
will be dismissed as duplicative.
E.

Fourteenth Amendment

The

Officer

arise

under

Amendment
claims;

Defendants

the

is

Fourth

not

they

a

argue

contend

Amendment

recognized
that

that
and

Plaintiffs’

that

alternative

Fourteenth

11.)

Plaintiffs

do

not

pursue

a

Fourteenth

basis

Amendment

process should not guide the court’s inquiry.

the

claims

for

those

substantive

due

(Doc. 24 at 10-

substantive

due

process

analysis in response; instead, they state that the Fourteenth
Amendment

is

included

merely

because

Amendment applicable to the States.

it

response

that

they

do

substantive due process claim.

the

Fourth

(Doc. 28 at 14-15.)

There is no substantive dispute here.
Plaintiffs’

makes

not

It is clear from

intend

to

assert

They merely sought to

a

style

their Fourth Amendment claim correctly.
F.

Section 1983 Bystander Liability

Reaves and Yount assert that the bystander claims against
them should be dismissed because Plaintiffs have not pleaded
sufficient facts to support the claims.

(Doc. 24 at 12-13.)

Brown moves to dismiss the bystander claim against him because
Plaintiffs allege that he was a perpetrator of the wrongful acts
and he “cannot then be held separately liable for failing to
stop himself.”

(Id. at 11.)

Plaintiffs reiterate that they
11

have pleaded sufficient facts as to Reaves and Yount and argue
that they may plead alternative theories of liability as to
Brown.

(Doc. 28 at 15-16.)

Under § 1983, a state actor may be liable if he “subjects,
or causes to be subjected” an individual “to the deprivation of
any

rights,

privileges,

Constitution.”
officer

may

misconduct.”

or

immunities

42 U.S.C. § 1983.

incur

§

1983

secured

by

the

“As a general matter, a law

liability

only

through

affirmative

Randall v. Prince George’s Cnty., Md., 302 F.3d

188, 202 (4th Cir. 2002).

However, officers may be liable for

failing to act when there is a duty to act; bystander liability
and supervisory liability are two such theories.

Id. at 202-03.

Bystander liability “is premised on a law officer’s duty to
uphold

the

law

and

protect

the

regardless of who commits them.”
held

liable

violating

an

when

he

“(1)

individual’s

public

from

Id. at 203.

knows

that

constitutional

a

illegal

acts,

An officer may be
fellow

rights[,]

officer
(2)

has

is
a

reasonable opportunity to prevent the harm[,] and (3) chooses
not to act.”

Id. at 204 (footnote omitted); see also Stevenson

v. City of Seat Pleasant, Md., 743 F.3d 411, 419-20 (4th Cir.
2014).
Plaintiffs allege that some or all of the events complained
of occurred in Reaves’ and Yount’s presence.
101.)

(Compl. ¶¶ 63, 86,

It is unclear from the complaint exactly when Reaves or
12

Yount arrived; Brown was clearly the first officer on the scene
(id. ¶ 17), Pearsall arrived soon after (id. ¶ 21), and at some
unidentified

point

multiple

units,

K9

“other

Durham

arrived

and

police

officers,”

participated

alleged wrongful acts (id. ¶¶ 24, 33, 49).
and

Yount

are

complaint

does

two
not

of

these

“other

specify

when

in

or

observed

Presumably Reaves

officers.”

they

including

Although

arrived,

whether

the
they

observed any of the events, or whether they knew their fellow
officers

were

plausibly
around

acting

unconstitutionally,

allege

that

Jackson’s

home

Reaves
for

and

at

unconstitutional actions taken.

Yount

least

the

facts

were

some

presented

present

of

the

in

and

allegedly

A reasonable inference from the

facts alleged is that Reaves and Yount saw at least the second
K9 searches (id. ¶¶ 49-52) and saw that they did not alert to
anything.

It is therefore plausibly alleged that they knew the

officers did not have probable cause to arrest Jackson, take
Haynes’

car

testing.

apart,

or

seize

parts

of

the

car

for

further

It is also a reasonable inference that, given the fact

that the alleged incidents took place over several hours and
their proximity to the alleged incidents,5 Reaves and Yount had a
reasonable

opportunity

to

prevent

5

the

harm.

Therefore,

Most of the incidents complained of occurred in Jackson’s home and
driveway and street immediately in front of his home.
The only
incident not occurring there is Brown’s application for a warrant.
The complaint does not indicate that anyone went with Brown.

13

Plaintiffs have alleged the minimum factual matter needed to
allow bystander claims against Reaves and Yount to go forward.
As to Brown’s bystander liability, the Officer Defendants
assert that Plaintiffs have pleaded themselves out of court by
alleging that Brown perpetrated the wrongful acts.

(Doc. 24 at

11-12.)

liable

They

insist

that

Brown

cannot

be

for

perpetrating wrongful acts and also liable for failing to stop
himself.

Without reaching Plaintiffs’ assertion that they may

plead alternative theories of liability, the court notes that
the complaint alleges other incidents not perpetrated by Brown
for which he may plausibly be liable as a bystander, such as
wrongfully allowing the K9 units to search Jackson and his home
and

car,

and

wrongfully

allowing

“City

police

officers”

to

disassemble Haynes’ car, including allowing Stanhope to jump up
and down on the back seats of the car.

Therefore, Brown’s

motion to dismiss the bystander claim against him will be denied
at this time.
G.

Section 1983 Supervisory Liability

Yount

contends

that

Plaintiffs

have

not

alleged

a

sufficient “affirmative causal link” between his inaction and
harm

to

§ 1983.

the

Plaintiffs

to

(Doc. 24 at 13-14.)

allow

a

supervisory

claim

under

Plaintiffs respond that Yount “was

aware of the constitutional violations of his subordinates [and]
. . . was present when his subordinates engaged in them, yet did
14

nothing to prevent or aid in preventing them,” and that by doing
so, he “tacitly approved” the actions.
Plaintiffs’

own

description

(Doc. 28 at 16.)
of

Yount’s

actions

(or

inaction) does not align with a claim of supervisory liability;
it aligns with a claim of bystander liability, which is already
alleged against Yount.
“bystander

and

As the Fourth Circuit has explained,

supervisory

liability

are

each

premised

on

omissions, but there are significant differences between them,”
and

so

the

“analysis

of

them

is

separate

and

distinct.”

Randall, 302 F.3d at 203.
Supervisory

liability

“arises

from

the

obligation

of

a

supervisory law officer to [ensure] that his subordinates act
within the law.”

Id.

There are three necessary elements to a

§ 1983 supervisory claim:
(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.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations and
internal quotation marks omitted).
subordinates’

conduct

“must

be

On the first prong, the

‘pervasive,’

meaning

that

the

‘conduct is widespread, or at least has been used on several
15

different occasions.’”
13 F.3d at 799).

Randall, 302 F.3d at 206 (quoting Shaw,

Regarding the second prong, the plaintiff

ordinarily must plead more than “a single incident or isolated
incidents” to sufficiently allege deliberate indifference.

Id.

(quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)).
Deliberate

indifference

in

this

context

means

“continued

inaction in the face of documented widespread abuses.”

Id.

(quoting Slakan, 737 F.2d at 373).
Nowhere do Plaintiffs allege a custom, trend, or pattern of
unconstitutional

actions

taken

by

Yount’s

subordinates.

In

fact, they do not allege a single wrongful incident prior to
October 8, 2009.
alleged

“a

Like the plaintiffs in Randall, they have

litany

of

constitutional

violations,

occurring

roughly simultaneously,” or over a short period of time (less
than a day).

Id. at 207.

Such a litany is insufficient to

demonstrate deliberate indifference and “contradicts the premise
of supervisory liability.”

Id.

Plaintiffs’ allegations boil

down to a bystander claim against a defendant who also happens
to

be

a

supervisor.

That

Yount

is

a

supervisor

makes

no

difference to the bystander inquiry; it also does not by itself
create a claim for supervisory liability.

Because Plaintiffs

have failed to allege Yount’s inaction in the face of widespread

16

abuses, the supervisory claim against Yount will be dismissed.6
H.

Conspiracy

The complaint asserts claims of conspiracy under § 1983
against the Officer Defendants in Counts I (search and seizure),
II (malicious prosecution), and III (concealment of evidence),
as well as a general claim of conspiracy under § 1983 in Count
VII.

(Compl. ¶¶ 68-83, 109-13.)

The Officer Defendants seek to

have Count VII dismissed as duplicative (Doc. 24 at 14-15);
Plaintiffs do not respond (Doc. 28 at 13, 18).7
Count

VII

introduces

Officer Defendants.

no

new

claim

against

any

of

the

All six Officer Defendants were previously

named in Counts I, II, and III, which each states a conspiracy
claim under § 1983.

The supporting language of Count VII merely

references constitutional injuries “as alleged above” (Compl.
¶ 111) and wrongful acts “alleged herein” (id. ¶ 112), without
reference to anything not already part of Counts I, II, and III.
Therefore,

the

claims

in

Count

VII

against

the

Officer

Defendants will be dismissed as duplicative.

6

Pearsall did not move to dismiss the supervisory liability claim
against him.
7

Plaintiffs address the argument that Count VII is duplicative only in
the context of the claims against the Officer Defendants in their
official capacities, conceding that such claims are duplicative of
Plaintiffs’ claims against the City in Count V.
(Doc. 28 at 13.)
They do not address the Officer Defendants’ argument, which is that
all of the claims against the Officer Defendants in Count VII – in
both their individual and official capacities – should be dismissed
because they are duplicative of Counts I, II, and III.

17

The

Officer

“generalized,

Defendants

conclusory

also

argue

that

allegations”

the

are

complaint’s

insufficient

to

support a conspiracy claim and thus seek dismissal of all the
conspiracy claims.
recite

the

(Doc. 24 at 15-16.)

factual

allegations

of

In response, Plaintiffs

the

believe support their conspiracy claims.

complaint

that

they

(Doc. 28 at 17-18.)

To state a claim for conspiracy to deprive an individual of
a constitutional right in violation of § 1983, Plaintiffs must
allege

that

the

Officer

Defendants

(1)

“acted

jointly

in

concert” and (2) performed an overt act (3) “in furtherance of
the

conspiracy”

that

(4)

constitutional right.

resulted

in

the

deprivation

of

a

Hinkle v. City of Clarksburg, W. Va., 81

F.3d 416, 421 (4th Cir. 1996) (citing Hafner v. Brown, 983 F.2d
570,

577

(4th

Cir.

1992)).

“Acquiescence

can

amount

to

a

conspiracy agreement when . . . one police officer watches an
open breach of the law and does nothing to seek its prevention.”
Hafner, 983 F.2d at 578.
The complaint plausibly alleges that, at a minimum, the
Officer
multiple

Defendants
K9

were

searches

present

revealed

at

Jackson’s

home,

no

indication

of

saw

that

controlled

substances, and saw no indications of criminal activity, yet
they searched and seized Jackson and the car and searched his
home – or acquiesced in those actions.
searches and seizures

The allegedly unlawful

took place in a relatively
18

small area

(Jackson’s home, driveway, and street immediately in front of
his home) and over a short period of time (a matter of hours,
not days or weeks).

Given that proximity and the fact that

acquiescence in the face of an alleged open breach of the law
can

amount

plausibly

to

a

alleged

conspiratorial
a

conspiracy

agreement,
claim

Plaintiffs

against

the

have

Officer

Defendants for unlawful searches and seizures.
The complaint also alleges that immediately following the
unsuccessful

searches,

and

while

the

Officer

Defendants

were

still present, a handcuffed Jackson was transported away in a
patrol

car

to

the

jail,

where

charging him with crimes.

Brown

drew

(Compl. ¶ 58.)

up

the

paperwork

One may reasonably

infer at this early pleading stage that the Officer Defendants
knew Brown’s purpose in transporting Jackson and acted jointly
in allowing Brown to initiate criminal proceedings against him.
The

conspiracy

to

conceal

different footing, however.

evidence

claim

stands

on

a

There are no factual allegations

that the Officer Defendants ever agreed to conceal evidence or
that they were present at and acquiesced in another Officer
Defendant’s

concealment

of

evidence.

The

temporal

and

geographic proximity that made the first two conspiracy claims
plausible is lacking here.
I.

Thus, this claim will be dismissed.

Section 1985(2)

The Officer Defendants contend that Plaintiffs’ conclusory
19

allegations of a racial animus against Jackson fail to state a
§ 1985 claim.
cases

on

(Doc. 24 at 16-17.)

which

the

Officer

Plaintiffs argue that the

Defendants

rely

are

inapplicable

because they do not relate to motions to dismiss; they reiterate
that they have sufficiently alleged a racial animus.

(Doc. 28

at 18-20.)
Section 1985(2) has two parts; the language of Plaintiffs’
complaint relates to the second part.

(Compl. ¶ 116 (“Under

color of state law, [Defendants] conspired . . . for the purpose
of impeding, hindering, obstructing and defeating the due course
of justice in the State of North Carolina and with the intent to
deny Jackson the equal protection of the laws.”).)

See also

Kush v. Rutledge, 460 U.S. 719, 724-25 (1983) (“The second part
of § 1985(2) applies to conspiracies to obstruct the course of
justice

in

state

courts,”

while

the

first

part

relates

to

“federal judicial proceedings.”)
To

state

“‘[t]he

a

claim

language

under

requiring

the

second

intent

to

part

of

deprive

§

1985(2),
of

equal

protection, or equal privileges and immunities, means that there
must

be

invidiously
action.’”

some

racial,

or

discriminatory

perhaps
animus

otherwise

behind

the

class-based,
conspirators’

Kush, 460 U.S. at 725–26 (emphasis omitted) (quoting

Griffin v. Breckenridge, 403 U.S.

88, 102 (1971)); see also

Bloch v. Mountain Mission Sch., 846 F.2d 69 (4th Cir. 1988)
20

(unpublished) (observing that a racial animus is necessary for a
violation of the first part of § 1985(3) and the second part of
§ 1985(2)).
The Officer Defendants cite Simmons v. Poe, 47 F.3d 1370,
1377 (4th Cir. 1995), and Gooden v. Howard Cnty., Md., 954 F.2d
960, 970 (4th Cir. 1992), in support of their position that
Plaintiffs’ allegations are insufficient to support a § 1985(2)
claim.

Simmons, which involved a motion for summary judgment on

a § 1985(3) claim,8 did not reach the question of racial animus,
finding

instead

conspiracy.

that

the

plaintiffs

47 F.3d at 1376-78.

had

not

established

a

In so holding, the Fourth

Circuit said, “we have specifically rejected [§ 1985] claims
whenever

the

purported

conspiracy

is

alleged

in

a

merely

conclusory manner, in the absence of concrete supporting facts.”
Id. at 1377.
§ 1985(3)

claim,9

requirement.
“required

plead

dealt

directly

with

the

racial

animus

There, the en banc court stated that courts have

that

class-based]
§ 1983

Gooden, which involved qualified immunity for a

plaintiffs

intent

in

specific

alleging

conspiracy
facts

survive a motion to dismiss.”

in

unlawful
claims

a

[i.e.,

under

§

nonconclusory

954 F.2d at 969-70.

racial

or

1985(3)

or

fashion

to

The court

8

Claims under the first part of § 1985(3) also require a racial or
class-based animus. See Kush, 460 U.S. at 725–26.
9

The Gooden defendants filed motions to dismiss, but the court treated
them as motions for summary judgment. 954 F.2d at 964.

21

found that the § 1985(3) claim “was essentially an afterthought
with

little

more

to

support

it

than

identities of the individuals involved.”
Plaintiffs

argue

that

Simmons

and

the

respective

racial

Id. at 970.
Gooden

are

inapposite

because they involved summary judgment, rather than a motion to
dismiss.10

However, other cases have addressed § 1985 claims on

motions to dismiss, and those cases make clear that conclusory
allegations
pleading

of

stage.

racial
For

animus

are

example,

in

insufficient,
Francis,

even

which

at

the

interpreted

pleading standards post-Twombly and Iqbal, the Fourth Circuit
stated:
To plead a violation of § 1985, the plaintiffs must
demonstrate with specific facts that the defendants
were “motivated by a specific class-based, invidiously
discriminatory animus to [ ] deprive the plaintiff[s]
of the equal enjoyment of rights secured by the law to
all.”
[Simmons, 47 F.3d at 1376.] Since the
allegation in Count IV amounts to no more than a legal
conclusion, on its face it fails to assert a plausible
claim.
See Iqbal, [556 U.S. at 679]; [Gooden, 954
F.2d
at
969–70]
(requiring
plaintiffs
alleging
unlawful intent in conspiracy claims under § 1985 to
“plead specific facts in a non-conclusory fashion to
survive a motion to dismiss”).
588 F.3d at 196-97 (emphasis added).
The entirety of Plaintiffs’ allegations regarding racial
animus amounts to two sentences:

“Plaintiff Eric Jackson is an

African-American citizen and resident of Durham County, North

10

Plaintiffs also attempt to distinguish Gooden on other grounds, none
of which have merit.

22

Carolina,” (Compl. ¶ 2), and “[Defendants] engaged in the overt
acts alleged herein in furtherance of that conspiracy, and, in
doing

so,

were

motivated

by

invidious

racial

animus

Jackson, an African-American citizen,” (id. ¶ 117).

against

Plaintiffs

plead no specific facts, other than Jackson’s race, to support
the legal conclusion that Defendants were motivated by racial
animus.

Such a “[t]hreadbare recital[] of the elements of a

cause of action” cannot survive a motion to dismiss.

Iqbal, 556

U.S. at 678; see also Sewraz v. Nguyen, Civ. A. No. 3:08CV90,
2011 WL 201487, at *12 (E.D. Va. Jan. 20, 2011) (holding that
plaintiff had failed to sufficiently allege racial animus in
§ 1985(2) claim when the only relevant facts plaintiff alleged
were

that

plaintiff

American).
J.

is

Indian

and

defendant

is

Vietnamese-

Consequently, the § 1985(2) claim will be dismissed.

Section 1986

Plaintiffs have asserted a cause of action under § 1986,
but a § 1986 claim is dependent upon the existence of a claim
under § 1985.
1985).

Trerice v. Summons, 755 F.2d 1081, 1085 (4th Cir.

Because Plaintiffs’ § 1985 claim fails, their § 1986

claim will also be dismissed.

Jenkins v. Trs. of Sandhills

Cmty. Coll., 259 F. Supp. 2d 432, 445 (M.D.N.C. 2003) (citing
Trerice, 755 F.2d at 1085).
K.

Obstruction of Justice

The Officer Defendants contend that North Carolina common
23

law does not provide for a claim of obstruction of justice based
on the actions of a police officer during a criminal proceeding.
(Doc. 24 at 17-18.)

Plaintiffs respond that “North Carolina

courts have never exempted police officers from liability for
obstruction of justice.”

(Doc. 28 at 21.)

The Fourth Circuit addressed this exact question recently:
Even though North Carolina courts have interpreted
common-law
obstruction
of
justice
to
include
fabrication of evidence, Henry v. Deen, 310 S.E.2d
326, 334 (N.C. 1984), and destruction of evidence,
Grant v. High Point Reg’l Health Sys., 645 S.E.2d 851,
855 (N.C. Ct. App. 2007), we have not found — and
plaintiffs have not offered — any case from any
jurisdiction recognizing a common-law obstruction of
justice claim against a police officer for his actions
relating to a criminal proceeding.
Evans v. Chalmers, 703 F.3d 636, 658 (4th Cir. 2012).

While

Plaintiffs assert that the Officer Defendants’ position “has no
support in . . . common sense” (Doc. 28 at 21), the Fourth
Circuit stated that “logic would seem to compel” just such a
position, Evans, 703 F.3d at 658.
Plaintiffs cite several North Carolina cases in an effort
to avoid Evans’ clear language, but none of them concerns claims
against

police

proceeding.
(finding

officers

See

In

obstruction

re

for

actions

Kivett,

claim

when

309
state

taken
S.E.2d
judge,

in
442

a

criminal

(N.C.

who

was

1983)
under

investigation, called another state judge and asked him to issue
a restraining order preventing a grand jury from convening to

24

indict him); State v. Wright, 696 S.E.2d 832 (N.C. Ct. App.
2010) (finding obstruction claim when candidate for reelection
to State House of Representatives filed false campaign finance
reports); Henry, 310 S.E.2d at 326 (finding allegations that
physicians

falsified

medical

records

sufficient

to

state

conspiracy to obstruct justice claim); Jones v. City of Durham,
643 S.E.2d 631 (N.C. Ct. App. 2007) (finding obstruction claim
when police officer’s vehicle collided with a pedestrian and
then

officer

misplaced

or

destroyed

recording of the accident).

his

patrol

car’s

video

Plaintiffs have not offered any

case in which a court has found a claim for obstruction of
justice against a police officer for actions undertaken in a
criminal proceeding.

Thus, the claim will be dismissed.

L.

Negligent Supervision

The

Officer

common-law

tort

Defendants
of

assert

negligent

that

the

supervision

North

applies

Carolina
only

to

employers, and so the claim is only applicable to the City, not
to Yount and Pearsall.

(Doc. 24 at 18-19.)

Plaintiffs state

that, given the City’s admission that the Officer Defendants
were employed by the City and acting within the course and scope
of their employment (Doc. 13 ¶ 62), the negligent supervision
claims

are

dismissal

duplicative;
(Doc.

28

at

Plaintiffs
22).

do

Thus,

not

object

Plaintiffs’

to

their

negligent

supervision claims against Pearsall and Yount will be dismissed.
25

III. CONCLUSION
For the reasons stated, therefore,
IT

IS

ORDERED

that

the

Officer

Defendants’

motion

dismiss (Doc. 23) is GRANTED IN PART AND DENIED IN PART.

to

Given

the myriad claims and Defendants, the following summary outlines
which claims will proceed against the Officer Defendants (all in
their individual capacities):
Against all Officer Defendants:
Count I (§ 1983 conspiracy to commit unlawful search
and seizure);
Count II (§ 1983 conspiracy to commit malicious
prosecution);
Count IV (§ 1983 bystander liability).
Additional claims against Brown, Stanhope, Van de Water,
and Pearsall:
Count I (§ 1983 search and seizure);
Count II (§ 1983 malicious prosecution);
Count III (§ 1983 concealment of evidence);
Count
XI
(common-law
malicious
prosecution
conspiracy).

and

Additional claim against Pearsall:
Count VI (§ 1983 supervisory liability).
All other claims against the Officer Defendants are DISMISSED
WITH PREJUDICE.

All claims against the “City Supervisors” are

DISMISSED WITHOUT PREJUDICE.
The City is not a party to the current motion, so the
claims against it are unchanged from the complaint, except that
the City, as the real party in interest, is substituted for the

26

Officer

Defendants

in

their

official

capacities

in

Counts

through IV.

/s/
Thomas D. Schroeder
United States District Judge
June 24, 2014

27

I