HOWARD v. CITY OF DURHAM et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim. The motion to dismiss the fifth cause of action for negligence against Soucie and Pennica in their individual capacity is GRANTE D, and those claims are DISMISSED WITHOUT PREJUDICE; the motion to dismiss the fifth cause of action for negligence against Dowdy and Smith in their official capacity as duplicative of the Monell claim against the City of Durham is GRANTED, and those claims are DISMISSED WITHOUT PREJUDICE; the motion to dismiss the sixth cause of action for intentional infliction of emotional distress against Dowdy and Smith in their official capacity as duplicative of the Monell claim against the City of Durham is GRANTED, and those claims are DISMISSED WITHOUT PREJUDICE; the motion to dismiss the seventh cause of action for common law malicious prosecution claim against Dowdy and Smith in their official capacity as duplicative of the Monell claim against the City of Durham is GRANTED, and those claims are DISMISSED WITHOUT PREJUDICE; The motion to dismiss all other claims is DENIED. Signed by CHIEF JUDGE THOMAS D. SCHROEDER on 3/31/2018. (Marsh, Keah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CITY OF DURHAM, et. al.,
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Darryl Howard brings this action against the City
of Durham and various officers of the Durham Police Department
(“DPD”) and Durham Fire Department (collectively, the “Individual
Defendants”) for claims arising out of his arrest, conviction, and
imprisonment for over twenty-three years until his exoneration and
release in 2016.
Howard alleges violations of the Fourth and
Fourteenth Amendments pursuant to 42 U.S.C. § 1983; obstruction of
justice; negligence; intentional infliction of emotional distress;
malicious prosecution; and a violation of the North Carolina
(Doc. 1 ¶¶ 120–75.)
Before the court is the motion
to dismiss certain claims against the Individual Defendants. (Doc.
(Docs. 14, 19, 21.)
For the reasons set forth
below, the motion will be granted in part and denied in part.
Viewed in the light most favorable to Howard as the non-
moving party, the operative facts are as follows: 1
On November 27, 1991, Doris Washington and her 13 year-old
strangled, beaten, and murdered, and their apartment was then set
(Doc. 1 ¶ 24.)
Although there was evidence implicating
others, Howard was arrested and charged with these murders on
November 12, 1992.
(Id. ¶ 65.)
From the beginning of the
Nishonda were the victims of sexual assault, and both bodies were
tested with a rape kit.
(Id. ¶¶ 28, 69.)
The results initially
revealed that sperm was found on Nishonda, but not on Doris.
The DNA found on Nishonda was not tested before Howard was
charged with both murders.
In February of 1993, Howard’s trial counsel requested DNA
testing of the rape kits.
(Id. ¶ 70.)
The testing was conducted
and conclusively excluded Howard as the source of the sperm found
(Id. ¶ 71.)
Regardless, on March 31, 1995, Howard
Howard’s complaint describes two distinct sets of actions: first, that
DPD officers missed, ignored, and fabricated evidence, as well as coerced
witnesses leading to his arrest and conviction; and second, that DPD
officers intentionally failed to disclose subsequently discovered,
exculpatory evidence. As the motion to dismiss primarily addresses the
latter, the court addresses the former only to the extent necessary to
resolve the motion before it.
was convicted of two counts of second-degree murder and one count
of first-degree arson, and he was sentenced to eighty years in
(Id. ¶ 84.)
In 1997, Howard filed a pro se motion for appropriate relief
in North Carolina Superior Court.
That motion was denied, as was
a petition for discretionary review to the North Carolina Supreme
(Id. ¶ 87.)
In 2009, after North Carolina created a statutory right to
post-conviction DNA testing, N.C. Gen. Stat. § 15A-270, Howard
filed an unopposed motion for DNA testing on Doris and Nishonda’s
rape kits, which was granted in 2010.
(Doc. 1 ¶ 88.)
of the rape kits confirmed that Howard was properly ruled out as
the source of the sperm found on Nishonda’s body but also found
previously unidentified sperm on Doris’s body.
(Id. ¶¶ 89–91.)
Testing of this sperm also conclusively ruled out Howard as the
source but did identify Jermeck Jones, a convicted felon, as a
(Id. ¶¶ 91–93.)
Investigation crime lab informed the DPD that Jones was a possible
match for the newly discovered DNA.
(Id. ¶ 94.)
On September 15,
2011, apparently upon application by Howard, a North Carolina
“immediately share with counsel for Mr. Howard any information it
possesses about the man whose DNA was detected in Doris W.’s sexual
(Id. ¶ 95.)
On December 14, 2011, Michele Soucie, 2
as directed by her sergeant, Scott Pennica, obtained a warrant to
collect a DNA sample from Jones.
(Id. ¶ 96.)
After taking Jones into custody but before collecting the DNA
sample from him, Soucie and Pennica met with him in an interview
room to question him about the Washington murders.
(Id. ¶ 97.)
During and directly after this interview, Jones made a number of
incriminating, contradictory, and inconsistent statements (some of
which were made to Soucie and Pennica and some of which were
recorded by a device that was hidden in the interview room).
These include: a statement that Doris had been his
girlfriend but that he did not kill her; once he was informed that
his DNA would be taken, his contradictory statement that he did
not know Doris (despite the fact that his DNA was subsequently
found on her); a statement that he had consensual sex with Nishonda
(despite the fact that she was 13 years old and his DNA was not
found on her); the fact that when he was in the interview room
alone, he made a series of calls from his cell phone in which he
implicated himself in the crimes and indicated that he had just
lied to Soucie and Pennica, including statements that he did not
want to “rat on anybody,” that “I ain’t said nothing,” that “ain’t
Soucie was, at all relevant times, a DPD police investigator who
investigated whether the crimes Howard was convicted of were committed
by someone else. (Doc. 1 ¶¶ 17, 93–101.)
nothing they going to learn without my attorney”, and that he had
visited the Washington apartment.
(Id. ¶ 99)
Subsequent testing of the DNA sample from Jones found him to
be a conclusive match for the newly-discovered DNA.
(Id. ¶ 93.)
Howard alleges, and the court accepts as true for purposes of
the present motion, that in a written report on this encounter
intentionally failed to report Jones’s contradictory statements or
disclose the recording.
(Id. ¶ 98.)
Howard also alleges that
although Soucie and Pennica knew that Jones was not being truthful
when they questioned him, they did not conduct any follow-up
investigation on Jones’s involvement in the crimes.
(Id. ¶ 101.) 3
On March 19, 2014, Howard’s defense counsel filed a motion
for appropriate relief in North Carolina Superior Court requesting
a new trial based on newly discovered evidence, including, among
other things, the new DNA evidence.
(Id. ¶ 105.)
Court granted the motion for appropriate relief and ordered a new
trial, and the state appealed.
(Id. ¶ 106.)
then filed a separate motion for a new trial, arguing that North
Carolina General Statute § 15A-270 entitled Howard to a new trial.
There is a discrepancy on this issue: in December of 2011 Soucie swore
under oath that the DPD needed Jones’s DNA for an investigation that was
ongoing, but in August of 2016 Soucie swore under oath that no followup investigation was conducted on Jones in 2011 because that
investigation was not active at the time. (Doc. 1 ¶ 101.) Either way,
the inculpatory recording was not disclosed pursuant to the 2011 court
order, and Howard remained in prison. (Id. ¶¶ 103-04.)
(Doc. 1 ¶ 108.)
In August of 2016, the Superior Court held an
evidentiary hearing on the motion.
(Id. ¶ 109.)
At this hearing,
Howard’s counsel presented the recording of Jones, which had only
been disclosed to counsel the month before.
(Id. ¶ 110.)
was called as a witness at this hearing but refused to testify and
At the end of the hearing, the Superior Court ruled from
the bench in favor of Howard.
(Id. ¶ 111.)
In a subsequent
written order, the Superior Court found that the DNA test results
showed that Howard was innocent of the Washington murders.
On August 21, 2016, Howard was released from prison.
On March 24, 2017, Howard filed his complaint in this court.
The Individual Defendants and the City of Durham each
filed an answer on August 29, 2017.
(Docs. 12, 14.)
On the same
day, the Individual Defendants, but not the City of Durham, moved
to dismiss many of Howard’s claims.
persuaded by some of the Individual Defendants’ arguments, Howard
stipulated to the dismissal of several of his claims and responded
to the arguments as to remainder.
As a result of this
substantive grounds: third cause of action (§ 1983 claim under the
against Soucie and Pennica; fourth cause of action (common law
obstruction of justice) against Soucie and Pennica; and fifth cause
of action (negligence) against Soucie and Pennica.
the Individual Defendants contend that the fourth, fifth, sixth
(intentional infliction of emotional distress against Darrel Dowdy
and Milton Smith) 4, and seventh (common law malicious prosecution
against Dowdy and Smith) causes of action against the Individual
Defendants in their official capacity should be dismissed as
duplicative of the second cause of action against the City of
(Docs. 13, 20.)
Each claim is addressed below.
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
A complaint that does not contain “sufficient factual
matter, accepted as true, ‘to state a claim to relief that is
plausible on its face’” must be dismissed.
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Dowdy was, at the relevant times, a corporal in the DPD and the lead
investigator in the case against Howard. (Doc. 1 ¶¶ 16, 27.) Smith was
a fire marshal and investigator for the Durham Fire Department. (Id.
“The plausibility standard requires a
plaintiff to demonstrate more than ‘a sheer possibility that a
defendant has acted unlawfully.’”
Giacommelli, 588 F.3d at 193
construed in the light most favorable to the plaintiff.
Smith, 589 F.3d 736, 738 (4th Cir. 2009).
presence  of a few conclusory legal terms does not insulate a
complaint from dismissal under Rule 12(b)(6) when the facts alleged
in the complaint’ cannot support the legal conclusion.”
v. Winston Salem State Univ., 495 F. Supp. 2d 517, 521 (M.D.N.C.
2007) (quoting Young v. City of Mount Ranier, 238 F.3d 567, 577
(4th Cir. 2001)).
Section 1983 Claims
The third cause of action alleges that Soucie and Pennica
violated Howard’s liberty interest in proving his innocence under
North Carolina’s post-conviction relief statutes by suppressing
(Doc. 1 ¶¶ 144–48.)
Soucie and Pennica argue that they
are protected from liability by qualified immunity.
(Doc. 14 at
Qualified immunity shields government officials performing
discretionary functions from personal liability for civil damages
under § 1983, so long as their conduct does not violate clearly
reasonable person would have known.
Ridpath v. Bd. of Governors
Marshall U., 447 F.3d 292, 306 (4th Cir. 2006).
entitled to immunity unless the § 1983 claim satisfies a two-prong
test: (1) the allegations, if true, substantiate a violation of a
federal statutory or constitutional right, and (2) the right was
“clearly established” such that a reasonable person would have
known his acts or omissions violated that right.
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
determination is to be assessed as of “the time an action [or
Harlow v. Fitzgerald, 457 U.S. 800, 818
The Fourth Circuit recently noted that in order to be
previously have been deemed unlawful” and that, instead, the
unlawfulness of the officer’s conduct.”
Sims v. Labowitz, No. 16-
2174, 2018 WL 1312259, at *5 (4th Cir. Mar. 14, 2018) (internal
citations and quotation marks omitted).
Despite the protection
that it offers officials, qualified immunity does not exist to act
as a shield for those who “knowingly violate the law.”
Briggs, 475 U.S. 335, 341 (1986).
Instead, it exists to protect
public officials from liability “for reasonable mistakes as to the
legality of their actions.”
Merchant v. Bauer, 677 F.3d 656, 661
(4th Cir. 2012) (citation omitted).
Once a defendant raises a
qualified immunity defense, the plaintiff bears the burden of
showing that the defendant’s alleged conduct violated the law.
Henry v. Purnell, 501 F.3d 374, 377–78 (4th Cir. 2007).
plaintiff meets that burden, then the defendant bears the burden
of proof as to whether he is entitled to qualified immunity.
individuals “have a liberty interest in demonstrating [their]
innocence with new evidence under state law.”
Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009).
While Osborne recognizes that a “criminal defendant proved guilty
after a fair trial does not have the same liberty interests as a
free man,” it also makes clear that conduct that “transgresses any
recognized principle of fundamental fairness in operation” can
cause a violation of a convicted individual’s right to demonstrate
his innocence with new evidence.
Id. at 68–69 (internal citations
and quotation marks omitted); see also Burgess v. Baltimore Police
Dep't, No. CV RDB-15-0834, 2016 WL 795975, at *7–8 (D. Md. Mar. 1,
concealed knowledge of an alternate perpetrator in a murder, after
plaintiff was convicted of that murder, to be a plausible due
Several courts have found that these state post-conviction
relief statutes that create a liberty interest carry with them a
corresponding right to receive reasonably accurate and truthful
information from state actors who respond to requests for evidence.
See, e.g., Dail v. City of Goldsboro, No. 5:10-CV-00451-BO, 2011
WL 2837067, at *5 (E.D.N.C. July 14, 2011) (“[T]he Osborne court
held that when a State enacts a statute providing postconviction
defendants a right to access evidence and a procedure to do so,
the state creates an entitlement that is itself protected by the
Due Process Clause.”); Newton v. City of New York, 779 F.3d 140,
147–48 (2d Cir. 2015); Morrison v. Peterson, 809 F.3d 1059, 1064–
65 (9th Cir. 2015).
Additionally, in 2014, the Fourth Circuit
held “our precedent unmistakably provides that, by 1988, a police
officer violates clearly established constitutional law when he
suppresses material exculpatory evidence in bad faith,” though the
suppression at issue there took place pre-conviction.
Baltimore City State's Attorneys Office, 767 F.3d 379, 399–401
(4th Cir. 2014).
Soucie and Pennica argue that it was not a violation of
Howard’s rights for them to fail to disclose exculpatory evidence,
because the Brady requirement to disclose exculpatory evidence
does not continue post-conviction. (Doc. 14 at 11 (citing Osborne,
557 U.S at 69 (noting that a “criminal defendant found guilty after
a fair trial does not have the same liberty interests as a free
man” and that those who have been found guilty at a fair trial
Further, if their actions were in violation of Howard’s rights,
they argue, their conduct did not violate any “clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
(Doc. 14 at 11–12) (quoting Simmons v. Poe, 47
F.3d 1370, 1385 (4th Cir. 1995).)
Howard, citing Osborn and Dail, argues that persons convicted
of crimes in North Carolina have a liberty interest, protected by
the Due Process Clause, in pursuing post-conviction relief.
19 at 15, 18.)
He contends he had a constitutionally protected
liberty interest in exercising his right to seek post-conviction
relief and that by “intentionally obstructing [his] attempts to
Defendants Soucie and Pennica violated the basic principles of
fundamental fairness, depriving [him] of his right to due process
(Id. at 18.)
Howard also argues that Soucie and Pennica
immunity does not act as a shield for individuals who ‘knowingly
violate the law,’” and a reasonable officer would have known that
suppressing exculpatory evidence.
(Id. at 19.)
argues, his liberty interest in his right to pursue post-conviction
relief was clearly established at the time of Soucie and Pennica’s
alleged misconduct, and qualified immunity should not protect the
(Id. at 20.)
While Soucie and Pennica are correct that the Brady duty to
disclose exculpatory evidence does not continue post-conviction,
Osborne established, in 2009, that convicted individuals have a
evidence under state law.
WL 795975, at *7–8.
Osborne, 557 U.S. at 68; Burgess, 2016
Further, while the officers’ conduct took
place before the Owens decision, that decision recognized that bad
established right as of 1988.
Id. at 401.
It is true that Owens
statement that “a police officer violates clearly established
evidence in bad faith” applies here because Howard alleges that
Soucie and Pennica intentionally suppressed the recording of Jones
in violation of a specific court order requiring its production.
Thus, at the time of Soucie and Pennica’s alleged post-
conviction conduct, it was clearly established that in states like
North Carolina whose laws provide post-conviction DNA testing,
convicted persons have a liberty interest in their ability to
pursue post-conviction relief through DNA testing.
Howard represents, and the officers do not dispute, that the
2011 court order directed the DPD to “immediately share with
counsel for Mr. Howard any information it possesses about the man
whose DNA was detected in Doris W.’s sexual assault kit.”
intentionally suppressed the recording of Jones and its contents,
despite that order.
(Id. ¶¶ 95, 98, 102.)
The recording was
plausibly key evidence, as Howard was exonerated at the hearing
when it was presented to the state court.
(Id. ¶¶ 109–112.)
such, the court finds that a reasonable person in the position of
Soucie and Pennica should have known that suppression of the
recording would violate the court’s disclosure order and Howard’s
right to post-conviction relief, pursuant to his liberty interest.
See Owens, 767 F.3d 379, 399–401.
Moreover, that Soucie and
Pennica acted intentionally in violation of the order is plausibly
involvement in the case and that they provided a written report
that allegedly misrepresented their interactions with Jones and
omitted the fact that Jones made incriminating, contradictory, and
(Doc. 1 ¶¶ 94-99.)
Consequently, given the deference afforded Howard’s claim at
this stage of the litigation, the fact that a convicted person
enjoys a liberty interest in pursuing relief under North Carolina’s
post-conviction remedies law, and the plausible allegations that
Soucie and Pennica intentionally violated a court order in failing
to disclose key exculpatory evidence, the court finds that Howard
has plausibly stated a claim that a constitutional violation has
occurred in violation of his clearly established right to pursue
a statutory post-conviction remedy to demonstrate his innocence.
As such, Soucie and Pennica have not met their burden of showing
that they are entitled to qualified immunity, and the motion to
dismiss will be denied.
Common Law Obstruction of Justice
With Howard’s voluntary dismissal of certain Defendants, the
fourth cause of action’s allegations of obstruction of justice
under North Carolina common law remain against only Soucie and
The officers contend that “[t]here is no common law
obstruction of justice claim in North Carolina against a police
officer based upon acts that occurred ‘solely in the course of an
officer’s criminal investigation . . . .’”
(Doc. 21 at 6 (quoting
Braswell v. Medina, 805 S.E.2d 498, 510 (2017)).)
In North Carolina, “it is an offense to do any act which
prevents, obstructs, impedes or hinders public or legal justice.”
In re Kivett, 309 N.C. 635, 670, 309 S.E.3d 442, 462 (1983).
common law offense of obstructing public justice may take a variety
of forms,” id., and encompasses acts taken to “destroy or conceal”
evidence, Henry v. Deen, 310 N.C. 75, 87, 310 S.E.2d 326, 334
See Blackburn v. Carbone, 208 N.C. App. 519, 527, 703
S.E.2d 788, 795 (2010) (noting that any action intentionally
impeding, or hindering the plaintiff’s ability to seek and obtain
a legal remedy will suffice to support a claim for common law
obstruction of justice).
As Soucie and Pennica note (Doc. 14 at 13–14; Doc. 21 at 6–
7), the North Carolina Court of Appeals has suggested that police
officers may be held liable for obstruction of justice based on
conduct taken in the course of their employment, but no North
Carolina court has found an obstruction of justice claim for
See Jones v. City of Durham, 183 N.C. App. 57, 59,
643 S.E.2d 631, 633 (2004) (holding obstruction of justice claim
properly stated against officer who misplaced or destroyed dashcam footage of a car accident that was potentially relevant to a
civil claim); Evans v. Chalmers, 703 F.3d 636, 658 (4th Cir. 2012)
(“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”); Massey v. Ojaniit, 759 F.3d 343, 358 (4th
Cir. 2014) (noting that there “has been a dearth of North Carolina
case law developed since Evans was decided,” and that it was
“unrealistic that North Carolina would uphold an obstruction of
justice claim in that context”); Haynes v. City of Durham, No.
(“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
Howard argues that while no North Carolina court has found a
police officer liable for common law obstruction of justice for
actions taken as part of a criminal proceeding, the North Carolina
suggests it would allow for an obstruction claim in this case.
Braswell, the plaintiff filed a civil action after having been
acquitted of criminal charges in connection with an investment
Braswell claimed that law enforcement officers misled the
In surveying the case law on the obstruction claim, the
enforcement during a criminal proceeding against a defendant, on
the one hand, and a claimant’s action to pursue some type of legal
remedy, on the other.
The court noted multiple instances where
obstruction claims were permitted against parties who withheld
documents and relevant information when it prevented someone from
pursuing a legal claim or remedy.
For example, in Jones, the court
permitted an obstruction claim for a police officer’s destruction
of a dashboard camera videotape recording of an accident that was
the subject of a civil damages lawsuit arising out of a claim that
the officer negligently stuck the plaintiff with his vehicle while
responding to a call.
Braswell, __ N.C. App. at __, 805 S.E.2d at
509-10 (citing Jones, 183 N.C. App. at 59, 643 S.E.2d at 633).
Braswell court stated:
Here, conversely, Braswell seeks to hold the
Officers civilly liable on an obstruction of justice
theory not for their obstruction of his ability to obtain
a legal remedy but rather solely for their actions taken
in the course of his criminal prosecution. While torts
such as malicious prosecution and false arrest allow law
enforcement officers to be held liable for their
wrongful acts while conducting a criminal investigation,
neither this Court nor our Supreme Court has ever
enlarged the scope of the obstruction of justice tort so
as to encompass claims based on acts occurring solely in
the course of an officer's criminal investigation that
are unrelated to a plaintiff's ability to seek and obtain
a legal remedy. On these facts, we conclude that the
trial court properly dismissed Braswell's obstruction of
__ N.C. App. at __, 805 S.E.2d at 510 (emphasis added); see also
Blackburn v. Carbone, 208 N.C. App. 519, 703 S.E.2d at 788 (2010)
(concluding, “[a]s a result, any action intentionally undertaken
by the defendant for the purpose of obstructing, impeding, or
hindering the plaintiff's ability to seek and obtain a legal remedy
will suffice to support a claim for common law obstruction of
justice.”) (emphasis added).
Howard argues that Jones and Braswell together indicate that
an obstruction of justice claim can be made against a police
officer, even where his actions are part of an ongoing criminal
investigation, if the actions are undertaken intentionally for the
purpose of obstructing, impeding, or hindering the plaintiff’s
ability to seek and obtain a legal remedy.
(Doc. 19 at 21.)
Howard further argues that because Soucie and Pennica acted with
the intent to prevent him from attaining a remedy (release from
prison), a valid obstruction of justice claim has been stated.
The court agrees with Howard.
Here, it is adequately alleged
that Soucie and Pennica were aware of the court order directing
them to turn over information about Jones, knew that Jones had
made inculpatory statements, and suppressed the recording of these
This intentional suppression of evidence, accepted as
true at this pleading stage, allegedly prevented Howard from
obtaining a legal remedy, as it prevented the disclosure of key
evidence that a court had ordered, which lead to Howard’s continued
imprisonment for more than four years.
This distinguishes this
case from Evans, Braswell, Haynes, and Massey, because the police
misconduct alleged here occurred after Howard had begun to pursue
his statutory remedy of exoneration and occurred in violation of
a specific court order directing disclosure.
Cf. Labowitz, 2018
WL 1312259, at *7 (King, R. dissenting) (“The simple rule that a
court order is to be obeyed is foundational to our legal system
and an independent judiciary.”); Williams v. Black, No. 5:07-CT3170-D, 2010 WL 2465152, at *3 (E.D.N.C. June 16, 2010) (“Moreover,
the court has a compelling interest in discouraging plaintiff and
others from disobeying court orders and failing to comply with
Therefore, because Howard alleges intentional suppression of
evidence in violation of a court order that prevented, obstructed,
impeded and hindered his ability to pursue his statutory remedy of
exoneration, the motion to dismiss the obstruction of justice cause
of action will be denied.
Common Law Negligence
Defendants were negligent in various respects in connection with
their investigation of Howard.
In light of Howard’s voluntary
dismissal of this claim against Defendant E.E. Sarvis, 5 only Soucie
and Pennica have moved for dismissal of the claim against them in
their individual capacity.
Howard alleges they were negligent in
failing to disclose exculpatory evidence, failing to comply with
the 2011 court order, and providing false information to Howard,
his attorney, and the Durham County District Attorney.
Soucie and Pennica argue that Howard has not actually
qualified immunity protects them from liability.
(Doc. 14 at 14–
Sarvis was, at the relevant times, a captain in the DPD who Dowdy
reported to throughout the course of the investigation and who served
as liaison to the press regarding the DPD’s efforts to solve the
Washington murders. (Doc. 1 ¶¶ 20, 27.)
16; Doc. 21 at 8–9).
considered “public officers.”
See Schlossberg v. Goins, 141 N.C.
App. 436, 445, 540 S.E.2d 49, 56 (2000).
As such, they are
generally “immune from personal liability for mere negligence in
the performance of [their] duties, but [are] not shielded from
liability if [their] alleged actions were corrupt or malicious of
if [they] acted outside and beyond the scope of [their] duties.”
But, if the “cloak of official immunity has been pierced,”
such as by corrupt or malicious conduct, then “the defendant ‘is
not entitled to [immunity] protection on account of his office’
and is ‘then liable for simple negligence’ and ‘subject to the
Asheville, 222 N.C. App. 285, 301, 730 S.E.2d 226, 238 (2012)
(quoting Epps. v. Duke Univ., Inc., 122 N.C. App. 198, 205–06, 468
S.E.2d 846, 852 (1996)).
Under this doctrine, a “malicious” act is one that is “(1)
done wantonly, (2) contrary to the actor’s duty, and (3) intended
to be injurious to another.”
Id. at 289, 730 S.E.2d at 230.
concept of willful and wanton negligence encompasses conduct which
Siders v. Gibbs, 39 N.C. App. 183, 186, 249 S.E.2d 858,
A plaintiff may prove malice “based on constructive
intent to injure” when “the level of recklessness of the officer’s
action was so great as to warrant a finding equivalent in spirit
to actual intent.”
Wilcox, 222 N.C. App. at 292, 730 S.E.2d at
Soucie and Pennica argue that the allegations against them
are insufficient to overcome their official immunity.
(Doc. 14 at
They cite to Shaw v. Stroud, which notes that “the North
negligence to suffice to pierce an officer’s immunity, absent a
statute specifically abolishing the common law immunity.”
14 at 15 (citing Shaw, 13 F.3d 791, 803 (4th Cir. 1994).)
also argue that Howard has alleged only intentional misconduct,
which cannot give rise to a negligence claim.
(Doc. 21 at 8–9.)
Howard responds that the allegations of the intentional violation
of a court order and suppression of exculpatory evidence are at
least plausibly corrupt or outside the scope of official duties
sufficient to pierce their official immunity and give rise to a
(Doc. 19 at 24-25.)
Upon review, it is apparent that the fifth cause of action
alleges only simple negligence.
While there are allegations of
willful, wanton, and reckless conduct elsewhere in the complaint
(Doc. 1 ¶¶ 113-119), there are no allegations that Soucie and
Pennica acted maliciously with the intent to injure Howard.
Howard has not pleaded allegations of negligence sufficient to
overcome official immunity.
The motion to dismiss the fifth cause
of action against Soucie and Pennica will therefore be granted,
but without prejudice.
Official Capacity Claims
Official capacity lawsuits “generally represent only another
way of pleading an action against an entity of which an officer is
Monell v. Dep't of Soc. Servs. of City of New York,
436 U.S. 658, 690 n.55 (1978).
As a result, “[a]s long as the
government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to
be treated as against the entity.”
159, 166 (1985).
Kentucky v. Graham, 473 U.S.
It is duplicative to bring the same claim against
a defendant in his official capacity and against the government
entity that employs that defendant, and in such a case the official
capacity claim should be dismissed.
Love–Lane v. Martin, 355 F.3d
766, 783 (4th Cir. 2004) (“The district court correctly held that
the § 1983 claim against [defendant] in his official capacity as
Superintendent is essentially a claim against the Board and thus
should be dismissed as duplicative.”); Fields v. Tucker, No.
1:10CV844, 2011 WL 4345306, at *2 (M.D.N.C. Sept. 15, 2011), report
and recommendation adopted in part, No. 1:10CV844, 2012 WL 174820
(M.D.N.C. Jan. 20, 2012); Alexander v. City of Greensboro, 762 F.
Supp. 2d 764, 785–88 (M.D.N.C. 2011).
official capacity claims against them in the common law causes of
action are duplicative of the Monell claim brought against the
City of Durham and should be dismissed.
(Doc. 14 at 10–11.)
Howard argues that because causes of action four, five, six, and
seven have not been brought against the City of Durham, they are
distinct from the Monell claim and should not be dismissed.
19 at 25.)
As an initial matter, because an official capacity claim is
a claim against the municipality, its dismissal should be sought
by the municipality – but the City of Durham has not moved for it
in this case.
Howard does not argue this as a reason to deny the
In any event, whether the claims brought against
the Individual Defendants in their official capacity duplicate
those in the second cause of action against the City of Durham
depends on the facts alleged as grounds for each.
here is that no party has conducted that analysis.
The Monell claim against the City of Durham purports to
incorporate all previous paragraphs of the complaint, suggesting
that it seeks to encompass all conduct.
However, it does not
expressly allege conduct occurring post-conviction to the extent
alleged in the fourth through sixth causes of action.
Therefore, the court cannot say at this stage that there
is necessarily duplication of every cause of action.
However, with the court’s dismissal of the negligence claim
dismissed the claim against Sarvis, the fifth cause of action now
only relates to Dowdy and Smith, who were involved only as to preconviction conduct. As such, it is duplicative of the second cause
of action against the City of Durham, and the negligence claim as
to Dowdy and Smith in their official capacity should be dismissed.
For this same reason, the sixth cause of action against Dowdy and
Smith only involves pre-conviction conduct and, to that extent,
duplicates the allegations of the second cause of action against
the City of Durham.
Moreover, the seventh cause of action for
conduct and duplicates the allegations of the Monell claim in the
second cause of action.
Therefore the motion to dismiss these
official capacity claims in the fifth, sixth, and seventh causes
of action will be granted. Otherwise, the motion is denied without
prejudice to the parties providing a more thorough analysis of the
argument on any remaining cause of action.
To be sure, even if an
official capacity claim can proceed as to any Individual Defendant,
there is no vicarious municipal liability, and the City of Durham
can be liable only if the requisites of Monell – municipal policy
or custom - are proven.
The court of course expresses no opinion
on the viability of any claim against the City of Durham in counts
four through seven, as the Individual Defendants only move to
dismiss these claims on the grounds that they are duplicative.
(Doc. 14 at 10–11; Doc. 21 at 9–10.)
For the reasons stated,
motion to dismiss (Doc. 13) is GRANTED IN PART and DENIED IN PART,
The motion to dismiss the fifth cause of action for
negligence against Soucie and Pennica in their individual capacity
is GRANTED, and those claims are DISMISSED WITHOUT PREJUDICE;
The motion to dismiss the fifth cause of action for
negligence against Dowdy and Smith in their official capacity as
duplicative of the Monell claim against the City of Durham is
GRANTED, and those claims are DISMISSED WITHOUT PREJUDICE;
The motion to dismiss the sixth cause of action for
intentional infliction of emotional distress against Dowdy and
Smith in their official capacity as duplicative of the Monell claim
against the City of Durham is GRANTED, and those claims are
DISMISSED WITHOUT PREJUDICE;
The motion to dismiss the seventh cause of action for
common law malicious prosecution claim against Dowdy and Smith in
their official capacity as duplicative of the Monell claim against
the City of Durham is GRANTED, and those claims are DISMISSED
The motion to dismiss all other claims is DENIED.
Thomas D. Schroeder
United States District Judge
March 31, 2018
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