ROGERS v. HENDERSON et al
Filing
17
MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 5/11/2015; that Defendants' Motion to Dismiss (ECF No. 8 ) is GRANTED and that this case is DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Order. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEREKH A. ROGERS,
)
)
Plaintiff,
)
)
v.
)
)
DOUG HENDERSON, in his individual )
capacity; VANCE BRADFORD LONG,
)
Judicial District 19B, in his
)
individual capacity; STEPHANIE
)
REESE, in her individual capacity;)
JODY BARLOW, in her individual
)
capacity; and C. E. JENKINS, in
)
her individual capacity,
)
)
Defendants.
)
1:14CV461
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge
Plaintiff Derekh A. Rogers (“Mr. Rogers”), proceeding pro se,
brought this action pursuant to 42 U.S.C. § 1983 (2012), alleging
various constitutional and statutory violations related to an
August
2013
Defendants
arrest
moved
to
and
subsequent
dismiss
the
state
Complaint
court
prosecution.
pursuant
to
Rules
12(b)(2), (5), and (6) of the Federal Rules of Civil Procedure.
(ECF No. 8.)
For the reasons stated below, the Court grants
Defendants’ Motion to Dismiss.
I.
BACKGROUND
Mr. Rogers names five Defendants in his Complaint:
(1) North
Carolina Superior Court Judge Vance Bradford Long (“Judge Long”);
(2)
North
Carolina
Magistrate
C.
E.
Jenkins
(“Magistrate
Jenkins”); (3) Guilford County District Attorney Doug Henderson
(“D.A. Henderson”);
(4)
Assistant
District
Attorney
Stephanie
Reese (“A.D.A. Reese”); and (5) Assistant District Attorney Jody
Barlow (“A.D.A. Barlow”).
(ECF No. 2 at 2-3.)
The Complaint
states that each Defendant is being sued in his or her individual
and official capacities.
(Id. ¶¶ 1, 5(b)-(f).)
Further, Mr.
Rogers seeks monetary damages in the amount of $128,000 against
each Defendant for a total of $640,000.
(Id.)
The Complaint alleges, among other things, the following
conduct on the part of Defendants:
(1) On August 23, 2013,
“Plaintiff was unlawfully grabbed and detained by agents acting
under the color of law, without jurisdiction or a wet inked signed
warrant by an Art III Section 2 Judge;” (2) “[t]he unwarranted
orders of defendants who sent agents to arrest plaintiff, due to
plaintiffs [sic] religious (Islam) persuasion, and false complaint
by an alleged party living in Miami[,] Florida, claiming to have
loss [sic] property in the jurisdiction of Guilford County;” (3)
“[n]o probable cause hearing was held;” (4) excessive bail was set
by Defendant Magistrate Jenkins due to his religion; and (5)
Defendants failed to honor Plaintiff’s discovery requests.
No. 2 ¶¶ 3.1-3.2, 3.6, 3.8.)
(ECF
Mr. Rogers asserts “violations of
Oath of Office, U.S. Constitution Art VI Section 2 [sic], Title 42
USC Section 1983 and Plaintiffs 1st Amendment rights.”
2
(Id. ¶ 1.)
In addition, Mr. Rogers alleges violations of 18 U.S.C. §§ 241 and
242, due process, unspecified “civil rights,” and gross negligence
as well as a conspiracy with intent to violate the First, Sixth,
and Fourteenth Amendments.
II.
(Id. ¶¶ 1(b), 3.11, 5(a).)
ANALYSIS
Defendants argue that this action should be dismissed for
lack of personal jurisdiction due to insufficient service of
process and further argue that immunity bars Mr. Rogers’ claims
against them in their individual as well as official capacities. 1
A.
Personal Jurisdiction
Defendants
first
contend
that
this
Court
lacks
personal
jurisdiction over them pursuant to Rules 12(b)(2) and (5) of the
Federal Rules of Civil Procedure because Mr. Rogers’ service of
process was insufficient.
(See ECF No. 9 at 3-4.)
Specifically,
they assert that Mr. Rogers’ “attempted service . . . by certified
mail addressed to them at their offices” does not comply with Rule
4(j)(4) of the North Carolina Rules of Civil Procedure, which
1
Defendants also contend that the Court must abstain under Younger v.
Harris, 401 U.S. 37 (1971), based upon what has become known as the
Younger doctrine.
Under the Younger doctrine, federal courts must
abstain from exercising jurisdiction when “(1) there is an ongoing state
[criminal] judicial proceeding brought prior to substantial progress in
the federal proceeding; that (2) implicates important, substantial, or
vital state interests; and (3) provides adequate opportunity to raise
constitutional challenges.” Nivens v. Gilchrist, 444 F.3d 237, 241 (4th
Cir. 2006).
However, the Court need not consider abstention in this
case in light of its determination that all claims must be dismissed
against Defendants.
3
“requires that service be made upon an officer of the State by
delivery of process to that officer’s designated agent or, absent
designation of an agent, delivery of process to the Attorney
General of North Carolina.”
(ECF No. 9 at 3 (citing N.C. Gen.
Stat. § 1A-1 (2015); N.C. R. Civ. P. 4(j)(4)).)
Defendants have
not challenged the sufficiency of Mr. Rogers’ service of process
in their individual capacities and, therefore, any such objection
is waived. 2
Accordingly, the Court addresses only the sufficiency
of Mr. Rogers’ service of process on Defendants in their official
capacities.
The
Federal
explicit method
Rules
for
official capacities.
of
Civil
service
on
Procedure
state
do
officers
not
provide
sued
in
an
their
Echevarria-Gonzalez v. Gonzalez-Chapel, 849
F.2d 24, 28 (1st Cir. 1988).
However, Federal Rule 4(j)(2) does
provide that service of process can be achieved on a state or
2
Defendants generally challenge the sufficiency of service of process
in their Motion to Dismiss without specifying capacity. (See ECF No. 8.)
However, their supporting Memorandum of Law addresses the sufficiency
of service of process in their official capacities only, constituting
waiver of any challenge to the sufficiency of service of process in their
individual capacities. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d
146, 152 n.4 (4th Cir. 2012) (“This issue is waived because [the
plaintiff] fails to develop this argument to any extent in its brief.”);
see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It
is not enough merely to mention a possible argument in the most skeletal
way, leaving the court to do counsel’s work, create the ossature for the
argument, and put flesh on its bones.”). Irrespective of waiver, the
Court believes that service of process was sufficient to confer
jurisdiction over Defendants in their individual capacities. (See ECF.
Nos. 12-16.)
4
state-created organization by serving its chief executive officer
or in accordance with state law.
Fed. R. Civ. P. 4(j)(2).
Under
North Carolina Rule 4(j)(4), service on a state officer can be
perfected only by delivery of process to either the officer’s
designated agent or the Attorney General of North Carolina.
N.C.
R. Civ. P. 4(j)(4).
Service on Judge Long and Magistrate Jenkins in their official
capacities is improper under North Carolina law, as service through
certified mail, return receipt requested, is insufficient service
on a state officer under North Carolina Rule 4(j)(4).
Similarly,
in person service on D.A. Henderson is insufficient pursuant to
North Carolina Rule 4(j)(4) to effect service on D.A. Henderson,
A.D.A. Reese, and A.D.A. Barlow in their official capacities.
It
is less clear, however, whether Defendants have been properly
served in their official capacities under federal law.
Although Rule 4 of the Federal Rules of Civil Procedure is
silent on the manner of service of process on a state officer in
his or her official capacity, Defendants maintain that Mr. Rogers’
attempted service on them was insufficient because “it was not
personal delivery to the chief executive officer” under Federal
Rule 4(j)(2).
(See ECF No. 9 at 3.)
Although Federal Rule 4(j)(2)
refers to state or state-created organizations and not state
officers, Defendants’ position has support from a number of courts.
See, e.g., Libertarian Party v. Dardenne, No. 08-582-JJB, 2009 WL
5
790149, at *5 (M.D. La. Mar. 24, 2009); see also Mack v. Fox, No.
1:07CV760,
2008
WL
4832995,
at
*3
(M.D.N.C.
Nov.
4,
2008),
recommendation adopted, 2008 WL 7674789 (M.D.N.C. Dec. 10, 2008).
However, other courts have held that the rules governing service
on an individual under Federal Rule 4(e) also apply to service on
a state officer in his or her official capacity.
See Caisse v.
DuBois, 346 F.3d 213, 216 (1st Cir. 2003); Echevarria-Gonzalez,
849 F.2d at 30; Gueli v. United States, No. 806CV1080T27MSS, 2006
WL 3219272, at *4 (M.D. Fla. Nov. 6, 2006).
Procedure
4(e)
provides
that
service
Federal Rule of Civil
can
be
achieved
on
an
individual by serving that individual in person, by serving the
individual’s authorized agent, or in accordance with state law.
Fed. R. Civ. P. 4(e).
The Court need not resolve whether Mr. Rogers’ service of
process was sufficient to establish personal jurisdiction over
Defendants in their official capacities because Mr. Rogers’ claims
must be dismissed pursuant to Rule 12(b)(6). See Adams v. Shipman,
No. 1:13CV858, 2014 WL 4924299, at *3 (M.D.N.C. Sept. 30, 2014)
(not
dismissing
for
insufficiency
of
process
because
the
plaintiff’s claims were subject to dismissal for failure to state
a claim).
Moreover, although a plaintiff’s failure to perfect
service is grounds for dismissal, “courts generally allow pro se
plaintiffs a chance to remedy technical insufficiencies in service
of process.”
Thomas v. Nelms, No. 1:09-CV-491, 2013 WL 593419, at
6
*1 (M.D.N.C. Feb. 14, 2013).
This is particularly true where, as
in this case, the defendants have actual notice of the lawsuit
commenced against them, and the plaintiff has made a good faith
effort to properly serve the defendants.
See Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984) (“When the process gives the defendant actual notice of the
pendency of the action, the rules, in general, are entitled to a
liberal
construction.”);
dismissing
for
Adams,
insufficiency
of
2014
WL
process
4924299,
partly
at
*3
because
plaintiff took affirmative steps to effectuate service).
(not
the
Allowing
time to cure any service defects would be futile because, as
explained below, Mr. Rogers’ claims must be dismissed for failure
to state a claim.
See Adams, 2014 WL 4924299, at *3 (“[G]ranting
an extension of time to effectuate service would be futile[]
because . . . Plaintiff’s claims must be dismissed pursuant to
Rule 12(b)(6).”).
The Court will next address Defendants’ motion
to dismiss pursuant to Rule 12(b)(6).
B.
Motion to Dismiss Based on Immunity
Defendants argue that, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, Mr. Rogers’ official capacity
claims require dismissal because these claims are barred by the
Eleventh Amendment.
In addition, Defendants argue that judicial
immunity bars Mr. Rogers’ individual capacity claims against Judge
Long and Magistrate Jenkins and prosecutorial immunity bars his
7
individual capacity claims against D.A. Henderson, A.D.A. Reese,
and A.D.A. Barlow.
The Court agrees.
“To survive a motion to dismiss, a 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Although a plaintiff need only plead a short
and plain statement of the claim establishing that he or she is
entitled to relief, Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992), “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
A complaint must contain “sufficient
allegations supporting the reasonable inference that the defendant
is liable for the misconduct alleged.”
Harris v. SunTrust Mortg.,
Inc., No. 12-cv-378, 2013 WL 1120846, at *2 (M.D.N.C. Mar. 18,
2013) (citing Twombly, 550 U.S. at 555).
1.
Official Capacity Claims
Mr. Rogers seeks monetary damages totaling $640,000 against
Defendants in their official capacities.
However, it is well
established that official capacity claims are in essence claims
against the state.
58, 71 (1989).
Will v. Mich. Dept. of State Police, 491 U.S.
As the Eleventh Amendment bars a plaintiff from
recovering monetary damages against the state, it similarly bars
such claims against a state official sued in his or her official
8
capacity.
Edelman v. Jordan, 415 U.S. 651, 663 (1974); Hutto v.
S.C. Retirement Sys., 773 F.3d 536, 549 (4th Cir. 2014) (“State
officials sued in their official capacities for retrospective
money damages have the same sovereign immunity accorded to the
State.”).
Thus, the Eleventh Amendment bars Mr. Rogers’ claims
against each Defendant in his or her official capacity.
2.
Individual Capacity Claims
a.
Judicial
Judicial Immunity
immunity
bars
claims
against
judges
in
individual capacity for actions that are “judicial acts.”
their
Everson
v. Doughton, No. 1:08CV887, 2009 WL 903316, at *1 (M.D.N.C. Apr.
2, 2009), recommendation adopted, (M.D.N.C. July 15, 2009), aff'd
per curiam, 366 F. App’x. 461 (4th Cir. 2010).
To determine
whether judicial immunity applies, courts employ a two part test.
First, to be immune, a judge cannot have acted in the “clear
absence of all jurisdiction.”
King v. Myers, 973 F.2d 354, 357
(4th Cir. 1992) (quoting Stump v. Sparkman, 435 U.S. 349, 357
(1978)).
In making this determination, “the scope of the judge’s
jurisdiction must be construed broadly.”
Stump, 435 U.S. at 356.
Second, the action must be a “judicial act.”
357.
King, 973 F.2d at
This determination rests on two factors:
“whether the
function is one normally performed by a judge, and whether the
parties dealt with the judge in his or her judicial capacity.”
Id.
Even when judges have committed grave procedural errors or
9
acted maliciously or corruptly, the Supreme Court has explained
that
they
are
entitled
to
absolute
immunity
occurred within their judicial jurisdiction.
if
such
actions
See Stump, 435 U.S.
at 355–56, 359 (citing Bradley v. Fisher, 80 U.S. 335, 351 (1871)).
In this case, Judge Long enjoys absolute immunity.
The
Complaint does not allege specific acts attributable to Judge Long.
In his briefing, however, Mr. Rogers asserts that Judge Long “acted
out of his district and without jurisdiction in his statements
made dated June 9th 2014 [and] failed to comply with North Carolina
G.S. 15A-910 in refusing to provide Plaintiffs [sic] with discovery
within 21 days of said written request.” 3
(ECF No. 11 at 15.)
Defendants point out that Judge Long “is the duly elected senior
resident
superior
court
judge
for
North
Carolina’s
Judicial
District 19B, which encompasses Randolph and Montgomery counties.”
(ECF No. 9 at 2.)
Judge Long’s jurisdiction is not limited to
those counties because superior court judges rotate to various
districts within their divisions.
N.C. Const. art. IV § 11.
Judicial District 19B is in the Fifth Division, which includes
Guilford County.
See N.C. Gen. Stat. § 7A-41(a).
Mr. Rogers does
not suggest that Judge Long’s assignment to his case occurred
outside the course of routine assignments required by the North
3
The Court notes that June 9, 2014, is after the date Mr. Rogers filed
this action, which was June 5, 2014.
10
Carolina Constitution.
Moreover, the Complaint provides no facts
which could be construed to indicate that Judge Long performed a
function other than one normally performed by a superior court
judge or that Mr. Rogers dealt with Judge Long outside of his
capacity as a judge.
Although Mr. Rogers does argue that Judge
Long failed to order discovery or failed to exercise his contempt
powers in sanctioning the prosecutors for not providing him with
discovery, judges routinely address discovery-related disputes,
and North Carolina General Statutes § 15A-910 appears to give the
judge wide latitude in solving such disputes.
For these reasons,
this Court concludes that judicial immunity bars Mr. Rogers’ claims
against Judge Long.
With respect to Magistrate Jenkins, Mr. Rogers contends that
Magistrate Jenkins acted outside the scope of her office by setting
an excessive bail based on his religion in violation of his due
process
rights,
First
Amendment
rights.
(ECF No. 2 ¶¶ 3.6, 5(f).)
Rights,
and
Fourth
Amendment
“As judicial officers, [state]
magistrates are entitled to absolute immunity for acts performed
in their judicial capacity.”
517
(4th
Cir.
1987).
magistrate setting bail.
1:11CV413,
2012
WL
This
Pressly v. Gregory, 831 F.2d 514,
absolute
immunity
applies
to
a
El-Bey v. City of Thomasville, No.
1077896,
at
*4
(M.D.N.C.
Mar.
30,
2012),
recommendation adopted, 2013 WL 5461819 (M.D.N.C. Sept. 30, 2013);
see King, 973 F.2d at 356 (“Magistrates are judicial officers . . .
11
entitled to absolute immunity under the same conditions as are
judges.”).
As in the case with Judge Long, Mr. Rogers has failed
to plead any facts that would preclude Magistrate Jenkins from
enjoying absolute immunity.
Even if the bail set by Magistrate
Jenkins was found to be excessive, Mr. Rogers’ claims would still
be barred by judicial immunity.
b.
Prosecutorial Immunity
A prosecutor has absolute immunity under § 1983 for acts
intimately associated with the judicial phase of the criminal
process.
Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
Thus,
“acts undertaken by a prosecutor in preparing for the initiation
of judicial proceedings or for trial, and which occur in the course
of his role as an advocate for the State, are entitled to the
protections of absolute immunity.”
U.S. 259, 273 (1993).
Buckley v. Fitzsimmons, 509
Such immunity applies not only to district
attorneys but also to assistant district attorneys.
See, e.g.,
Puckett v. Carter, 454 F. Supp. 2d 448, 451-52 (M.D.N.C. 2006)
(applying absolute prosecutorial immunity to district attorney and
assistant district attorney).
When a prosecutor is not performing
the role of advocate, such as when he or she undertakes the
investigative function normally performed by a detective or police
officer, then he or she is entitled to qualified immunity.
Buckley,
509
U.S.
at
273-76.
Qualified
immunity
See
protects
prosecutors from liability for civil damages “when the state of
12
the law is such that they would not have known that their conduct
violates statutory or constitutional rights.”
Owens v. Balt. City
State’s Attorneys Office, 767 F.3d 379, 395 (4th Cir. 2014).
Here, it is difficult to determine what specific conduct Mr.
Rogers alleges as it relates to these Defendants.
The Complaint
is replete with conclusory and formulaic recitations of conspiracy
theories and violations of statutes and constitutional provisions.
Mr. Rogers fails to allege specific conduct supporting his claims.
Moreover, Mr. Rogers has failed to plead any facts that would
suggest that D.A. Henderson, A.D.A. Reese, or A.D.A. Barlow are
not entitled to the protection of prosecutorial immunity in their
individual capacities.
The Complaint does refer to an alleged
crime related to “loss” of property in Guilford County, North
Carolina, (ECF No. 2 ¶ 3.2), and it would appear that prosecuting
such crimes falls squarely within the jurisdiction of the Guilford
County District Attorney and Assistant District Attorneys.
Thus,
based on the facts presented, the Court concludes that Mr. Rogers’
claims are barred against these Defendants in their individual
capacities based on prosecutorial immunity. 4
For
the
reasons
outlined
4
above,
the
Court
enters
the
Mr. Rogers also alleges a § 1983 claim against A.D.A. Reese and A.D.A.
Barlow for violations of 18 U.S.C. §§ 241 and 242. However, these are
criminal statues and do not provide a civil remedy. Cok v. Cosentino,
876 F.2d 1, 2 (1st Cir. 1989) (“Only the United States as prosecutor can
bring a complaint under 18 U.S.C. §§ 241–42 (the criminal analogue of
42 U.S.C. § 1983) . . . .”).
13
following:
ORDER
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (ECF
No. 8) is GRANTED and that this case is DISMISSED WITH PREJUDICE.
A
Judgment
dismissing
this
action
will
be
entered
contemporaneously with this Order.
This, the 11th day of May, 2015.
/s/ Loretta C. Biggs
United States District Judge
14
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