MCCOLLUM et al v. PETERKIN et al
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 7/3/2018. For the reasons set forth herein, Defendants' Motion to Dismiss, (Doc. 9 ), is GRANTED, and this action is DISMISSED WITH PREJUDICE as to Defendants Hubert Pe terkin, Timothy Rugg, Timothy Kavanaugh, and Hoke County. FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE as to Defendants Samuel Morant, Stanley Davis, and John Does #1-5, because Plaintiffs have failed to serve Defendants Morant, Davis, and John Does #1-5 and attempts to serve these Defendants would be futile based on the reasons outlined in this Memorandum Opinion and Order. FURTHER ORDERED that the parties each file a brief addressing the issues outlined above, including, inter alia, the effect, if any, of the dismissal of Plaintiffs' claims upon the motion to join, (Doc. 3 ), and the motion for disclosure, (Doc. 14 ), within twenty (20) days of this Memorandum Opinion and Order. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WADDELL MCCOLLUM and
LENA MCCOLLUM,
Plaintiffs,
v.
HUBERT PETERKIN, TIMOTHY RUGG,
SAMUEL MORANT, TIMOTHY
KAVANAUGH, STANLEY DAVIS,
HOKE COUNTY, and
JOHN DOES #1-5, in their
individual capacities,
Defendants.
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1:17CV965
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiffs Waddell McCollum and Lena McCollum (“Plaintiffs”
or “Mr. McCollum” or “Ms. McCollum”), proceeding pro se, filed
this Complaint on October 23, 2017, naming as Defendants Hoke
County and certain individuals in their individual capacities:
Hubert Peterkin, Timothy Rugg, Samuel Morant, Timothy Kavanaugh,
Stanley Davis, and John Does #1-5. (Doc. 2.) Summonses were
issued, (Doc. 5), and served on Hoke County, Kavanaugh,
Peterkin, and Rugg, (Doc. 7). These Defendants responded by
moving to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). (Doc. 9.) Plaintiffs have responded, (Doc. 15), and
Defendants have replied, (Doc. 16). Also before the court are a
Motion for Joinder Multiple Plaintiffs, (Doc. 3), and Motion
Requesting the Court to Order Disclosure, (Doc. 14). Defendants
have not responded to either of these motions. These matters are
now ripe for ruling, and this court finds Defendants’ motion to
dismiss should be granted because Plaintiffs’ claims are time
barred.1 This court will order further briefing on how dismissal
of Plaintiffs’ claims affects the motion for joinder.
I.
BACKGROUND
The allegations of Plaintiffs’ Complaint, taken as true,
state the following: On October 19, 2014, Defendants Kavanaugh
and Davis arrested Plaintiffs’ son, Robert Lewis, in front of
The Complaint names as Defendants Davis and Morant, and a
summons was issued but returned unexecuted for these
individuals. (Doc. 8.) If a defendant is not served within
ninety days after a complaint is filed, this court must dismiss
the action against that defendant after notice to the plaintiff,
unless the plaintiff shows good cause for the failure. Fed. R.
Civ. P. 4(m).
1
Additionally, this court shall “dismiss an in forma
pauperis case at any time the court determines the action . . .
fails to state a claim upon which relief may be granted[.]” See
Jones v. Sternheimer, 387 F. App’x 366, 368 (4th Cir. 2010) (per
curiam) (citing 28 U.S.C. § 1915(e)(2)(B)). Because Plaintiffs’
claims are time barred, Plaintiffs fail to state a claim.
Therefore, service on Defendants Davis and Morant, as well as
John Does #1-5, would be futile, and the action will be
dismissed without prejudice to these Defendants without further
notice to Plaintiffs.
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Plaintiffs’ home. (Complaint (“Compl.”) (Doc. 2) at 10.)2 After
Lewis was taken into custody, additional officers arrived to the
residence. (Id. at 12.) Mr. and Ms. McCollum, both diabetics,
were not allowed to enter their house for several hours and then
only after imploring the officers to let them enter to check
their blood sugars. (Id. at 11-13.) Eight and a half hours after
the warrantless search and seizure of the home began, Defendant
Rugg and Detective William Tart arrived with a search warrant,
which was ordered “without just cause.” (Id. at 12-13.)
Plaintiffs bring a § 1983 claim for Fourth Amendment violations
and a common law trespass claim stemming from the search and
seizure of their home, seeking compensatory as well as punitive
damages. (Id. at 9, 16.)
II.
LEGAL STANDARD
Defendants move to dismiss under Federal Rule of Civil
Procedure 12(b)(6), alleging that the claims are facially barred
by the applicable statute of limitations. (Mem. of Law in
Support of Mot. to Dismiss (“Defs.’ Br.”) (Doc. 10) at 2.)
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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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)). A claim is facially plausible if the
plaintiff provides enough factual content to allow the court to
reasonably infer that the defendant is liable for the misconduct
alleged. Id. The pleading setting forth the claim must be
“liberally construed” in the light most favorable to the
nonmoving party, and allegations made therein are taken as true.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the
“requirement of liberal construction does not mean that the
court can ignore a clear failure in the pleadings to allege any
facts [that] set forth a claim.” Estate of Williams-Moore v.
Alliance One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646
(M.D.N.C. 2004).
“A document filed pro se is ‘to be liberally construed,’
and ‘a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations omitted). Nevertheless, liberal construction of a pro
se complaint does not “undermine Twombly’s requirement that a
pleading contain ‘more than labels and conclusions[.]’”
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Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(citation omitted).
A statute of limitations defense is characterized as “an
affirmative defense, which can be the basis of a motion to
dismiss under Rule 12(b)(6).” Dickinson v. Univ. of N.C., 91 F.
Supp. 3d 755, 763 (M.D.N.C. 2015) (citing Dean v. Pilgrim’s
Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005)). For a statuteof-limitations defense to succeed “at this stage, all facts
necessary to show the time bar must clearly appear ‘on the face
of the complaint.’” Id. (citing Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007).
III. ANALYSIS
Moving Defendants seek to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) on the grounds that the
Complaint fails to state a claim upon which relief can be
granted because it is facially barred by the applicable statute
of limitations. (“Defs.’ Br.” (Doc. 10) at 2.)3 Plaintiffs reply
that their Complaint was filed “within the three-year statute of
Moving Defendants also sought to dismiss the claim against
Hoke County because “it is well-established [sic] under North
Carolina law that an elected county sheriff is not an agent or
employee of the county, such that a county cannot be held liable
for any acts or omissions on the part of the sheriff or his/her
deputies, employees, or agents.” (Defs.’ Br. (Doc. 10) at 5.)
Plaintiffs agree with Defendants on this point, (Pls.’ Br. (Doc.
15) at 2), and as a result, this court will dismiss Plaintiffs’
claims against Hoke County.
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limitations applicable to their claims” or, alternatively, was
filed “within three years from the time that they knew or had
reason to know of the injuries giving rise to their claims[.]”
(Mem. of Law & Resp. to Defs. Mot. to Dismiss (“Pls.’ Br.”)
(Doc. 15) at 2.)
“The statute of limitations for all § 1983 claims is
borrowed from the applicable state’s statute of limitations for
personal-injury actions, even when a plaintiff’s particular
§ 1983 claim does not involve personal injury.” Tommy Davis
Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66–67
(4th Cir. 2015) (citing Wilson v. Garcia, 471 U.S. 261, 275–80
(1985)). In North Carolina, § 1983 claims “are limited by ‘the
three-year period for personal injury actions set forth in [N.C.
Gen. Stat.] § 1–52(5).’” Id. at 67 (citation omitted). Section
1–52’s three-year period also governs claims for trespass, which
accrues on the date of the trespass. See § 1–52(3) (stating that
even if “the trespass is a continuing one, the action shall be
commenced within three years from the original trespass, and not
thereafter”).
“Although the applicable state statute of limitations
supplies the length of the limitations period in a § 1983
action, the time of accrual of the cause of action is a matter
of federal law.” Brooks v. City of Winston-Salem, 85 F.3d 178,
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181 (4th Cir. 1996) (citing Nasim v. Warden, Md. House of
Correction, 64 F.3d 951, 955 (4th Cir. 1995) (en banc)). “Under
federal law a cause of action accrues when the plaintiff
possesses sufficient facts about the harm done to him that
reasonable inquiry will reveal his cause of action.” Id.
(citation omitted).
“The accrual date for a claim alleging illegal entry and
search is the date of entry of by the police.” Hubbard v.
Bohman, No. 1:11CV00716, 2013 WL 2645260, at *1 (M.D.N.C.
June 11, 2013); see also Smith v. McCarthy, 349 F. App’x 851,
856–57 (4th Cir. 2009) (per curiam). When, as Plaintiffs allege,
a search is also undertaken ostensibly pursuant to a search
warrant that is later found to be defective, it is less settled
when that claim accrues. Compare Belanus v. Clark, 796 F.3d
1021, 1026 (9th Cir. 2015) (“[A] cause of action for illegal
search and seizure accrues when the wrongful act occurs, even if
the person does not know at that time that the search was
warrantless.” (citations omitted)) and Craddock v. Fisher, Civil
Action No. 3:12CV430, 2015 WL 1825720, at *4 (E.D. Va. Apr. 21,
2015) (holding that plaintiff’s Fourth Amendment Bivens claims
stemming from searches performed under allegedly defective
warrant accrued on the dates of the searches) and Hill v. Simms,
Civil Action No. 3:07-0349, 2010 WL 3852039, at *3 (S.D.W. Va.
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Sept. 30, 2010) (holding that plaintiffs’ claims based on
defective search warrants “accrued at the time of the defective
process, not when the Courts determined the process to be
defective”), aff’d, 418 F. App’x 184 (4th Cir. 2011) (per
curiam), with Adrian v. Selbe, 364 F. App’x 934, 937 (5th Cir.
2010) (holding that Bivens claim accrued on the date plaintiff
“had actual knowledge . . . that [the affiant] allegedly lied in
his affidavit”) and Ganek v. Leibowitz, 167 F. Supp. 3d 623, 633
(S.D.N.Y. 2016) (holding that accrual started when affidavit
containing officers’ false statements in support of warrant was
unsealed and accessed by plaintiffs), rev’d on other grounds,
874 F.3d 73 (2d Cir. 2017).
Here, Plaintiffs allege injuries arising from an illegal
warrantless search and seizure of their home on October 19,
2014, (see Compl. (Doc. 2) at 10-12), such that reasonable
inquiry would have revealed their cause of action, regardless of
the late arrival of the search warrant. Although Plaintiffs
allege not to have known certain facts about their injuries
until later — namely, until April 14, 2015, when they received
the Hoke County Sheriff’s Department felony investigation report
regarding Lewis’s case purporting to state that the search was
“without just cause,” (see Pls.’ Br. (Doc. 15) at 7; Pls.’ Br.
(Doc. 15-1) (attaching a cover sheet for the report)), —
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Plaintiffs allegations show that they were sufficiently aware on
October 19, 2014, of the harm done to them that day. Therefore,
Plaintiffs’ cause of action accrued on October 19, 2014.
“[T]he Federal Rules of Civil Procedure govern the
commencement of . . . suit[s] [involving federal question
jurisdiction] for purposes of tolling the state statute of
limitations.” Lewis v. Richmond City Police Dep't, 947 F.2d 733,
735 (4th Cir. 1991) (per curiam). “A civil action is commenced
by filing a complaint with the court.” Fed. R. Civ. P. 3. When
computing a time period stated in days or longer, this court
must “exclude the day of the event that triggers the period” and
then “count every day[.]” Fed. R. Civ. P. 6(a)(1). The last day
to timely file Plaintiffs’ Complaint would have been October 19,
2017. Plaintiffs did not file their Complaint until October 23,
2017. Therefore, their claims are time barred.
Plaintiffs’ Complaint and motion for joinder were mailed
from Bertie Correctional Institution with a return sender
labeled “Robert Dwayne Lewis.” (See Compl. (Doc. 2-1).) The
docketed envelope for the Complaint and motion are identical,
(Compare Compl. (Doc. 2-1) with Mot. for Joinder Multiple Pls.
(“Joinder Mot.”) (Doc. 3-1)), and the envelope is initialed by a
“Sgt.” and dated October 19, 2017. For an incarcerated plaintiff
proceeding pro se, an action is deemed filed “when the
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[plaintiff] delivers his pleading to prison authorities for
forwarding to the court clerk.” Lewis, 947 F.2d at 735. There is
no evidence Mr. McCollum and Ms. McCollum are incarcerated, and
thus they may not benefit from the prisoner mailbox rule.
However, the motion for joinder is signed by Lewis, alleges that
Lewis’s claim arises out of the same transaction or occurrence
as the other Plaintiffs, and was sent by Lewis while
incarcerated. (See Joinder Mot. (Doc. 3); Joinder Mot. (3-1).)
Defendants failed to respond to either this motion or
Plaintiffs’ motion for disclosure. Under Local Rule 7.3(k),
failure to file a response within the required timeframe
constitutes a waiver of the right to file such response, except
upon a showing of excusable neglect. LR 7.3(k). “If a respondent
fails to file a response within the time required by this rule,
the motion will be considered and decided as an uncontested
motion, and ordinarily will be granted without further notice.”
Id.
This court strictly construes application of the Local
Rules, and a party’s uncontested motions ordinarily may be
granted on procedural grounds. However, in light of this
somewhat unusual situation, where the original Plaintiffs’
claims have been dismissed, this court will take these two
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motions under advisement pending further briefing by the parties
as to how Lewis’s motion for joinder affects this case.
IV.
CONCLUSION
For the reasons set forth herein,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss,
(Doc. 9), is GRANTED, and this action is hereby DISMISSED WITH
PREJUDICE as to Defendants Hubert Peterkin, Timothy Rugg,
Timothy Kavanaugh, and Hoke County.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE as to Defendants Samuel Morant, Stanley Davis, and
John Does #1-5, because Plaintiffs have failed to serve
Defendants Morant, Davis, and John Does #1-5 and attempts to
serve these Defendants would be futile based on the reasons
outlined in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the parties each file a brief
addressing the issues outlined above, including, inter alia, the
effect, if any, of the dismissal of Plaintiffs’ claims upon the
motion to join, (Doc. 3), and the motion for disclosure, (Doc.
14), within twenty (20) days of this Memorandum Opinion and
Order.
This the 3rd day of July, 2018.
_____________________________________
United States District Judge
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