FUNDERBURK v. COLEY et al
Filing
26
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/7/2015, RECOMMENDED that Defendants Rebecca J. Coley, RN and Gary Sellers, RN's Motion to Dismiss or, In the Alternative, Answ er to Plaintiff's Complaint (special appearance) (Docket Entry 15 ) be granted and that this action be dismissed with prejudice. ORDERED that Defendants Rebecca J. Coley, RN and Gary Sellers, RN's Motion to Strike Plaintiff's Surreply (Docket Entry 24 ) is DENIED AS MOOT. FURTHER ORDERED that Plaintiff's Motion to Amend (Docket Entry 17 ) is DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRUCE JAKIERRA FUNDERBURK,
Plaintiff,
v.
REBECCA COLEY and GARY
SELLERS
Defendants.
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)
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)
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)
)
)
1:15-CV-275
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This
matter
comes
before
the
undersigned
United
Sates
Magistrate Judge for a recommendation on “Defendants Rebecca J.
Coley, RN and Gary Sellers, RN’s Motion to Dismiss or, In the
Alternative, Answer to Plaintiff’s Complaint (special appearance)”
(the “Motion to Dismiss”) (Docket Entry 15), as well as an order on
“Defendants Rebecca J. Coley, RN and Gary Sellers, RN’s Motion to
Strike Plaintiff’s Surreply” (the “Motion to Strike”) (Docket Entry
24) and Plaintiff’s “Supplement Original Complaint” (the “Motion to
Amend”)
1
(Docket
Entry
17).1
For
the
reasons
stated
herein,
Plaintiff’s Motion to Amend alleges additional facts and
grounds for relief arising out of events that occurred before he
filed his original Complaint.
(Compare Docket Entry 17, with
Docket Entry 2.) As such, the Motion to Amend does not qualify
under Federal Rule of Civil Procedure 15(d) as a supplemental
pleading, because it does not “set[] out any transaction,
occurrence, or event that happened after the date of the pleading
to be supplemented.”
Fed. R. Civ. P. 15(d) (emphasis added).
Thus, the undersigned Magistrate Judge will construe the
“Supplement Original Complaint” (Docket Entry 17) as a motion to
amend the Complaint under Federal Rule of Civil Procedure 15(a),
which here requires leave of court as Plaintiff has already amended
Defendants’ Motion to Dismiss (Docket Entry 15) should be granted,
Defendants’ Motion to Strike (Docket Entry 24) is denied as moot,
and Plaintiff’s Motion to Amend (Docket Entry 17) is denied.
I. BACKGROUND
This action arises out of Plaintiff’s pro se Complaint against
Rebecca Coley and Gary Sellers (collectively, “Defendants”), who
are registered nurses assigned to Carolinas Medical Center in
Kannapolis, North Carolina (“CMC”).
(Docket Entry 2 at 3.)
The
Complaint alleges that Defendants violated Plaintiff’s federal
constitutional rights and North Carolina state law by “drawing [a]
blood sample from . . . [P]laintiff without first obtaining [a]
search warrant[,] . . . . [and] ignored [his] refusal to consent”
to the blood withdrawal.
(Id. at 3-4.)
Plaintiff’s Complaint
acknowledges that he filed an earlier, related civil action against
Brian Lewis Helms, a police officer for the City of Kannapolis
(“Officer Helms”), Funderburk v. Helms, No. 1:12CV1266, Docket
his Complaint once and has not obtained written consent of
Defendants.
(See Docket Entries 9, 10, 19.)
For the reasons
stated in Deberry v. Davis, No. 1:08CV582, 2010 WL 1610430, at *7,
n.8 (M.D.N.C. Apr. 19, 2010) (unpublished), the undersigned
Magistrate Judge will enter an order, rather than a recommendation,
denying the Motion to Amend as futile, see Johnson v. Oroweat Foods
Co., 785 F.2d 503, 510 (4th Cir. 1986) (recognizing futility of
amendment as ground for denying motion to amend the complaint), in
that the analysis in Subsection II.D. would apply equally to the
proposed amendment.
2
Entry 2 (M.D.N.C. 2012) (the “2012 Case”), based on the same facts
he alleges in this action.
(Docket Entry 2 at 1, 5-9).2
Construing Plaintiff’s Complaint against the backdrop of the
2012 Case, Plaintiff alleges that, on April 8, 2012, Officer Helms
pulled Plaintiff out of his family’s basement while looking for a
breaking and entering suspect.
Entry 2 at 3.
Funderburk, No. 1:12CV1266, Docket
During Plaintiff’s arrest, a police officer came
into contact with Plaintiff’s blood.
Id.
Police officers took
Plaintiff to CMC to have his blood tested.
See id.
Plaintiff
would not consent to having his blood drawn (Docket Entry 2 at 3),
so
police
officers
held
Plaintiff
down
against
his
will,
Funderburk, No. 1:12CV1266, Docket Entry 2 at 3, and Defendants
took his blood (Docket Entry 2 at 3).
Ultimately, Plaintiff settled the 2012 Case and executed a
Release of All Claims (the “Release Agreement”) (id. at 6-7) and
Stipulation of Dismissal with Prejudice, voluntarily dismissing the
2012
Case,
see
Funderburk,
No.
1:12CV1266,
Docket
Entry
41.
Plaintiff attached the Release Agreement to his Complaint. (Docket
Entry 2 at 6-7.)
The Release Agreement provides that Plaintiff
2
As previously explained, “[a]lthough the present Complaint
contains few factual allegations, . . . [it] arises from the same
incident set out in greater detail in the Complaint in Funderburk
v. Helms, No. 1:12CV1266 (M.D.N.C.).” (Docket Entry 3 at 1.) The
Court may properly take judicial notice of court documents filed in
Plaintiff’s previous action. See Clark v. BASF Salaried Emps.’
Pension Plan, 329 F. Supp. 2d 694, 697 (W.D.N.C. 2004).
3
release[s], acquit[s] and forever discharge[s] . . . all
other persons, firms, corporations, associations or
partnerships of and from any and all claims, actions,
causes of action, demands, rights, damages, costs, loss
of service, expenses, and compensation whatsoever, which
[Plaintiff] now has or which may hereafter accrue on
account of or in any way growing out of any and all known
and unknown, foreseen and unforeseen bodily and personal
injuries and the consequences thereof resulting or to
result from the accident, casualty or event which
occurred on or about the 8th of April, 2012, including
those events that are more fully described in the [2012
Case] . . . .
(Id.
at
6
(emphasis
added).)
Nevertheless,
here,
Plaintiff
requests the Court award him $50,000 in compensatory damages and
$50,000 in punitive damages from each Defendant for their roles in
taking his blood without his consent.
(Id. at 4.)
In response, Defendants filed the Motion to Dismiss (Docket
Entry 15), which raises several grounds for dismissal.3
Plaintiff
then filed the Motion to Amend (Docket Entry 17), and subsequently
responded to Defendants’ Motion to Dismiss (Docket Entry 20).
Defendants replied.
(Docket Entry 22.)
3
Defendants seek dismissal because (1) the Release Agreement
bars Plaintiff’s claims (Docket Entry 16 at 4-5); (2) North
Carolina General Statute Section 20-139.1(c) immunizes Defendants
from liability for taking Plaintiff’s blood (id. at 5-6); (3)
Plaintiff fails to allege enough facts to state a plausible claim
against Defendants (id. at 6-9); (4) the defense of qualified
immunity shields Defendants from civil liability (id. at 9-11); (5)
Plaintiff did not properly perfect service upon Defendants (id. at
11-14); and (6) Plaintiff failed to allege that no adequate state
remedy exists to provide relief, as required to state a direct
claim under the North Carolina Constitution (id. at 14). Because
the Release Agreement disposes of the case, this Memorandum Opinion
will only discuss that ground.
4
Thereafter, Plaintiff filed a “Reply to Defendants Rebecca J
Coley, RN Gary Sellers RN Reply Brief in Support of Motion to
Dismiss” (the “Surreply”) (Docket Entry 23) and Defendants filed
the Motion to Strike the Surreply (Docket Entry 24). Plaintiff did
not respond to Defendants’ Motion to Strike.
(See Docket Entries
dated Aug. 19, 2015, to present.)4
II. DISCUSSION
A.
Legal Standard
When deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must “accept as true all well-pleaded
allegations and view the complaint in the light most favorable to
the plaintiff,” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009), to “determine whether it is plausible that the
factual allegations in the complaint are enough to raise a right to
relief above the speculative level,” Simmons v. United Mortg. &
Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (internal
citations omitted).
Under this standard, “the court need not
accept the legal conclusions drawn from the facts, and need not
accept as true unwarranted inferences, unreasonable conclusions, or
arguments.”
Monroe v. City of Charlottesville, Va., 579 F.3d 380,
385–86 (4th Cir. 2009).
In that regard, a court must dismiss a
4
Upon careful review, Plaintiff’s Surreply (Docket Entry 23)
contains no additional arguments or facts that would affect the
analysis in Subsection II.D. (see id.).
Defendant’s Motion to
Strike is therefore denied as moot.
5
complaint “if it does not allege ‘enough facts to state a claim to
relief that is plausible on its face.’” Giarratano v. Johnson, 521
F.3d
298,
302
(4th
Cir.
2008)
(quoting
Bell
Atl.
Corp.
v.
Twombly,550 U.S. 544, 570 (2007)).
Further, because Plaintiff is a prisoner proceeding in forma
pauperis, the Prison Litigation Reform Act (the “Act”) “accords
judges
.
.
.
the
unusual
power
to
pierce
the
veil
of
the
complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.”
Neitzke v. Williams,
490 U.S. 319, 327 (1989). Specifically, the Act authorizes a court
to dismiss a case “at any time . . . [it] determines . . . the
action . . . is frivolous or malicious . . . [or] fails to state a
claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2).
Finally, and particularly relevant to this case, when deciding
a motion to dismiss, a court may consider documents referenced in
and attached to the complaint.
Philips, 572 F.3d at 180; see also
Bardes v. Massachusetts Mut. Life Ins. Co., 932 F. Supp. 2d 636,
637-38 (M.D.N.C. 2013) (“Because [the] settlement agreement and
release was referenced in the complaint and [the plaintiff] does
not contest its authenticity, it is appropriate to consider the
settlement agreement in connection with the motion to dismiss.”).
Where the attached documents conflict with the allegations in the
complaint, the attached documents prevail.
Fayetteville Inv’rs v.
Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
6
B.
Jurisdiction
Federal district courts have original jurisdiction to hear
civil actions that arise under the United States Constitution and
federal laws.
28 U.S.C. § 1331.
Construed liberally, see Bardes,
932 F. Supp. 2d at 638 (M.D.N.C. 2013) (“[P]ro se complaints should
be construed liberally.” (citing Erickson v. Pardus, 551 U.S. 89,
94 (2007)), Plaintiff’s Complaint alleges at least one claim under
a federal statute, Section 1983 of Title 42 of the United States
Code, which authorizes actions against persons that violate a
citizen’s constitutional rights while acting under color of state
law.
(See Docket Entry 2 at 4.)
Specifically, Plaintiff alleges
that Defendants acted under the direction of state law enforcement
officers when they unconstitutionally seized his blood without
consent.
(See id. at 3-4.)
federal claim.
The Court has jurisdiction over this
See Schmerber v. California, 384 U.S. 757, 768
(1966) (recognizing Fourth Amendment violation could occur where
police took the petitioner’s blood without his consent); Hammer v.
Gross, 932 F.2d 842 (9th Cir. 1991) (construing section 1983 to
encompass allegation that police officer violated Constitution by
employing force to extract blood from the plaintiff after his
arrest).
To
the
extent
Plaintiff
alleges
state
law
claims
and
violations of his rights under the North Carolina Constitution, the
Court may exercise supplemental jurisdiction over those claims
7
because they derive from a common nucleus of operative facts with
his federal law claim(s).
See 28 U.S.C. § 1367(a); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).
C. Choice of Law
Because the Release Agreement could serve as a complete bar to
Plaintiff’s claims, the Court must determine what law applies in
construing the Release Agreement.
that
Defendants
Constitution.
violated
his
Plaintiff alleges, inter alia,
rights
under
(Docket Entry 2 at 3-4.)
the
United
States
“When a release or a
settlement agreement impacts upon significant federal rights or
interests, federal common law controls the interpretation of that
release or agreement.”
Coleson v. Inspector Gen. of Dep’t of
Defense, 721 F. Supp. 763, 766 (E.D. Va. 1989) (citing Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 343–48 (1971));
see also Jones v. Taylor, 648 F.2d 1201, 1203 (9th Cir. 1981) (“The
conditions affecting the validity of a release of significant
federal rights are eminently a matter of federal law, and we find
it unnecessary to examine [state] authorities.”); Ashley II of
Charleston, LLC v. PCS Nitrogen, Inc., 791 F. Supp. 2d 431, 472
(D.S.C. 2011) (“Federal law governs the validity of releases of
federal causes of action.”). The undersigned Magistrate Judge will
therefore apply federal common law in construing the Release
Agreement.
8
D. Release Agreement
Under federal common law, the parties’ intent controls the
scope of the release.
See Zenith, 401 U.S. at 343–48. “A release
of claims under section 1983 is valid only if it results from a
decision that is voluntary, deliberate, and informed.”
Jones, 648
F.3d at 1203 (citing Boyd v. Adams, 513 F.2d 83, 87 (7th Cir.
1975)). “[The] plaintiff has the burden, when seeking to avoid a
release, of showing that such avoidance is appropriate.”
Coleson,
721 F. Supp. at 768.
Plaintiff does not contend that fraud or mutual mistake
tainted
the
Release
Agreement,
that
it
lacked
adequate
consideration, that he signed the Release Agreement under duress or
coercion,
or
that
he
misunderstood
the
Release
Agreement’s
contents, see id. (recognizing those grounds for invalidating a
release agreement); instead, Plaintiff argues that “an earlier suit
will not bar a latter [sic] suit if the factual and legal issue is
not the same,” and that here, the “person[s] being sued are
different . . . [and] were not named in [the 2012 Case], as
plaintiffs [or] defendants” (Docket Entry 20 at 4).
Plaintiff
provides no authority for the view that any difference in the
identity of the parties to this case and the 2012 Case make the
language of the Release Agreement irrelevant.
(See id.)
Although Plaintiff has now sued different people than he sued
in the 2012 Case, and he may now allege violations of different
9
laws than before, the Release Agreement bars this action.
The
Release Agreement’s express words provide a clear manifestation of
Plaintiff’s intent under the Release Agreement.
F. Supp. at 768.
releases
“all
See Coleson, 721
By its unequivocal terms, the Release Agreement
claims”
that
Plaintiff
may
have
against
any
“person[]” “result[ing] from the accident, casualty or event which
occurred on or about the 8th of April, 2012, including those events
that are more fully described in the [2012 Case].”
2 at 6.)
(Docket Entry
In these circumstances, Plaintiff clearly intended to
release “all claims” that arose out of the events underlying the
2012 Case.
(See id.)
The analysis next turns to whether Defendants are “persons”
that Plaintiff intended to release under the Release Agreement.
Plaintiff’s current action sues the “Nurses” from the 2012 Case.
(See id. at 3.)
In the 2012 Case, Plaintiff maintained that, on
April 8, 2012, Officer Helms, along with two other police officers,
“held [him] [d]own so Nurses can [sic] take DNA from [his b]ody.
[T]here wasnt [sic] a warrant to do so the method was completely
wrong.
Due
process
was
[n]eeded
[b]ut
[n]ot
[a]pplied.”
Funderburk, No. 1:12CV1266, Docket Entry 2 at 3 (emphasis added).
In this case, Plaintiff proceeds against the “Nurses” whom he
alleges took his “blood sample . . . without first obtaining [a]
search warrant . . . . ignor[ing] . . . [his] refusal to consent
about the constitutional wrongdoing event [that occurred on] April
10
8, 2012.”
(Docket Entry 2 at 3.)
Both actions, therefore, fault
the same “Nurses” for contributing to the harm Plaintiff suffered
on April 8, 2012.
Accordingly, Plaintiff knew of Defendants’
involvement in the events of April 8, 2012, when he signed the
Release Agreement, which clearly and explicitly discharges all
“persons” from all liability related to the April 8, 2012 event.
(Id. at 6-7.)
This “language could be no more forceful” in its intent to
serve as a bar to Plaintiff’s claims against Defendants. Doganieri
v. United States, 520 F. Supp. 1093, 1097 (N.D.W. Va. 1981)
(construing general release of “all other persons” to bar the
plaintiff’s claims against the defendant, even though the defendant
was not a party to the general release); see also Village of Fox
River Grove, Ill. v. Grayhill, Inc., 806 F. Supp. 785, 795 (N.D.
Ill. 1992) (holding that, even though the third-party plaintiff was
not a party to the general release, the release barred the thirdparty
plaintiff’s
claims);
Coleson,
721
F.
Supp.
at
767-68
(enforcing general release of all claims the plaintiff may have
against anyone concerning his previous employment and termination
with the defendant).
Consequently, the Release Agreement bars
Plaintiff’s claims against Defendants in this civil action.
The policy of the federal courts encourages parties to settle
their disputes.
See Williams v. First Nat’l Bank, 216 U.S. 582,
595 (1910) (“Compromises of disputed claims are favored by the
11
courts.”); Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215,
1221
(4th
Cir.
1976)
(recognizing
encouraged, not discouraged”).
that
“settlements
[are]
Here, Plaintiff does not challenge
the validity of the Release Agreement or the knowing and voluntary
nature of his entry into it.
Accordingly, the Court should
conclude that Defendants have shown entitlement to judgment as a
matter of law on the face of Plaintiff’s pleadings.
III. CONCLUSION
The Release Agreement bars the instant suit.
IT IS THEREFORE RECOMMENDED that Defendants Rebecca J. Coley,
RN and Gary Sellers, RN’s Motion to Dismiss or, In the Alternative,
Answer to Plaintiff’s Complaint (special appearance) (Docket Entry
15) be granted and that this action be dismissed with prejudice.
IT IS ORDERED that Defendants Rebecca J. Coley, RN and Gary
Sellers, RN’s Motion to Strike Plaintiff’s Surreply (Docket Entry
24) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (Docket
Entry 17) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 7, 2015
12
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