Gaines v. Tomasetti et al
Filing
94
ORDER granting in part and denying in part 76 Motion to Dismiss, claims dismissed with prejudice as to Defendants Bigelow, Bryson, Fisher, C. Jones, McCabe, Tomasetti, and Torgow; denying dismissal as to Defendant Clinard; dismissing 92 Motion for Jury Trial. Signed by Chief Judge Robert J. Conrad, Jr on 4/26/12. (Pro se litigant served by US Mail.)(nll)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09-cv-217-RJC
DARRELL GAINES,
)
)
Plaintiff,
)
)
v.
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)
LOUIS TOMASETTI, et al.,
)
)
Defendants.
)
__________________________________________)
ORDER
THIS MATTER is before the Court on a Motion to Dismiss the Amended Complaint by
Defendants Luke Bigelow, Tammy Bryson, Justin Clinard, Darryl Fisher, C. Jones, Leo
McCabe, Louis Tomasetti, and Leslie Torgow, (Doc. No. 76), and a Motion for Jury Trial by
Plaintiff Darrell Gaines, (Doc. No. 92).
I.
BACKGROUND
A.
Procedural Background
Pro se Plaintiff Darrell Gaines (“Plaintiff”) is an inmate, currently incarcerated at Hyde
Correctional Institution, and serving a 10-12 year sentence after being convicted of being an
habitual felon on November 15, 2007. In this lawsuit, filed pursuant to 42 U.S.C. § 1983,
Plaintiff has sued numerous City of Asheville police officers, alleging that the officers
unlawfully arrested him or issued him citations for trespassing at an Asheville public housing
project on various dates. As the Court discusses, infra, the City of Asheville Housing Authority
(“Housing Authority”) bans persons charged with certain crimes from entering properties
managed by the Housing Authority. See (Doc. No. 61-1 at 18). Plaintiff contends that he was
not on the banned list on the various dates in which he was either arrested or issued a citation for
trespassing.
On June 5, 2009, Plaintiff filed his original Complaint against Louis Tomasetti
(“Tomasetti”), David Nash (“Nash”), Justin Clinard (“Clinard”), and John Doe (“Doe”). At all
relevant times, Defendants Tomasetti and Clinard were City of Asheville Police Department
(“APD”) officers. The original Complaint alleged that Defendant Doe was an unknown APD
officer, and that Defendant Nash was, at all relevant times, a Housing Authority supervisor.
(Doc. No. 1 at 3).
In the original Complaint, Plaintiff alleged, among other things, that the APD officers
violated Plaintiff’s rights under the U.S. Constitution by falsely arresting Plaintiff or issuing him
citations at various times for trespassing at a public housing project managed by the Housing
Authority and by committing assault and battery on Plaintiff by making Plaintiff’s handcuffs
excessively tight. See (id. at 5; 6). By Order entered June 29, 2009, this Court dismissed all of
Plaintiff’s claims except his false arrest claims against Defendants Tomasetti and Clinard. (Doc.
No. 4).
On April 18, 2011, Plaintiff filed an Amended Complaint, adding APD officers Luke
Bigelow (“Bigelow”), Tammy Bryson (“Bryson”), Darryl Fisher (“Fisher”), C. Jones (“C.
Jones”), Leo McCabe (“McCabe”), and Leslie Torgow (“Torgow”) as Defendants; adding claims
arising out of trespassing arrests or the issuance of trespassing citations on additional dates;
changing some of his allegations from those of arrest to issuance of citations; and in some cases
changing the identity of the issuing or arresting officer. (Doc. No. 61). Defendants Bryson,
Fisher, Tomasetti, and Torgow were all served with a summons and the Amended Complaint on
or about October 7, 2011. See (Doc. No. 69). There is no indication that Defendants Clinard or
McCabe, who are no longer employed with the APD, were ever served with Plaintiff’s Amended
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Complaint. See (Doc. No. 70). Because these Defendants have joined in the pending motion to
dismiss, however, they have waived any arguments regarding service of process.
On November 28, 2011, Defendants Bigelow, Bryson, Clinard, Fisher, C. Jones,
McCabe, Tomasetti, and Torgow filed a motion to dismiss. (Doc. No. 76). On March 28, 2012,
Plaintiff filed a Motion for Jury Trial. (Doc. No. 92).
B.
Factual Background1
In the Amended Complaint, Plaintiff alleges that each Defendant, on a particular day, “in
a chain of conspiracy . . . and in a false manner, with reckless disregard to the truth and with
conscious knowledge of [the] falsity” of the charges, either issued a citation or arrested Plaintiff
for trespassing on Housing Authority property and, in most cases, “the district Attorney
dismissed the charges.” See, e.g., (Doc. 61-1 at 7). Plaintiff further alleges that, after each
trespassing charge was dismissed, Defendants conspired to provide “false information to the
Housing Authority trying to have the Plaintiff banned . . . .” (Id. at 17). Plaintiff states that
“[t]he fourth amendment does not permit locking up an individual repeatedly, just to investigate
them without probable cause” and “[t]hese unjustified, unsubstantiated charges were going [on]
repeatedly.” (Id.).
Plaintiff has attached to the Complaint various criminal records showing the trespassing
and other charges against him.2 Plaintiff has also attached to his Amended Complaint a letter
1
For the purposes of this Motion to Dismiss, the Court accepts as true Plaintiff’s factual
allegations and construes them in the light most favorable to Plaintiff. Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 189 (4th Cir. 2010).
2
Generally, the Court considers only the pleadings when ruling on a Rule 12(b)(6)
motion. See FED . R. CIV . P. 12(d). In addressing a 12(b)(6) motion, however, the Court may
consider documents that are “integral to and explicitly relied on in the complaint” so long as the
authenticity of such documents is not disputed. See Am. Chiropractic Ass’n, Inc. v. Trigon
3
dated April 23, 2009, on Housing Authority letterhead, stating, in relevant part, that Plaintiff was
“charged with Possession of Drug Paraphernalia and Common Law Robbery on June 2, 2007”;
that he was “banned from all properties managed by the Housing Authority of the City of
Asheville”; and that the “ban will be in effect for 3 years.” (Doc. No. 61 at 18). The April 23,
2009 letter also states that the date that the ban commences is “the date the person is charged
until the date of conviction.” (Id.). Thus, at least according to the April 23, 2009 letter, Plaintiff
was banned from Housing Authority property beginning June 2, 2007, for the next three years.3
II.
STANDARD OF REVIEW
On a motion to dismiss, the Court must accept the factual allegations of the claim as true
and construe them in the light most favorable to the non-moving party. Coleman v. Md. Ct. of
Appeals, 626 F.3d 187, 189 (4th Cir. 2010). In order to survive the motion, the “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)). To be “plausible on its face,” a plaintiff must demonstrate more than “a
sheer possibility that a defendant has acted unlawfully.” Id. A plaintiff therefore must
“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). Here, the authenticity of the documents
referenced in the Complaint and attached thereto as exhibits is not in dispute. Accordingly, the
Court may consider these documents in ruling on Defendants’ motion to dismiss without
converting this to a summary judgment proceeding.
3
Plaintiff argues that the common law robbery charge was dismissed, thus suggesting
that he was no longer banned from Housing Authority property as of the date that charge was
dismissed. However, as to the charge for possession of drug paraphernalia, Plaintiff’s criminal
records indicate that the charge was consolidated with other charges, to which Plaintiff pled
guilty on November 15, 2007. See (Doc. No. 61-1 at 22). In any event, Plaintiff does not
indicate that he ever appealed the Housing Authority’s decision to ban him for three years.
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him to relief, i.e., the ‘plausibility of entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186,
193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
III.
DISCUSSION
A.
Defendants’ Contention that the Allegations in the Amended Complaint Do Not
Meet the Iqbal and Twombly Pleading Standards for Alleging False Arrest
The Court first addresses Defendants’ motion to dismiss Plaintiff’s false arrest claim
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.4 In support of the
motion to dismiss, Defendants first contend that the Amended Complaint falls short of the Iqbal
and Twombly pleading standard because it lacks sufficient factual content to create the
reasonable inference of liability by Defendants for a Fourth Amendment violation. Defendants
contend that Plaintiff’s claims are mere recitations of the elements of a claim for false arrest,
without supporting facts. As for Plaintiff’s contention that he was not banned from Housing
Authority property on certain dates, Defendants contend that the Housing Authority letter only
affirms that Plaintiff was banned from Housing Authority property for part of the relevant time
period – that is, from June 2, 2007 to June 2, 2010. Defendants contend that nothing in the letter
indicates that this was the exclusive period that Plaintiff was banned from Housing Authority
property or that he was allowed on Housing Authority property for any of the dates that he
alleges he was subjected to false arrest.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
4
By Order dated June 29, 2009, the Court dismissed all claims except for Plaintiff’s
Fourth Amendment claim alleging false arrest. (Doc. No. 4).
5
seized.
U.S. CONST . amend. IV. To state a claim for unlawful arrest, a plaintiff must allege that the
arrest was made without a warrant and without probable cause to believe that the plaintiff
committed a crime. See Miller v. Prince George’s Cnty., Md., 475 F.3d 621, 627 (4th Cir.
2007). Probable cause to arrest without a warrant “exists when the facts and circumstances
within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable
person to believe that an offense has been or is being committed by the person being arrested.”
Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995).
Here, Plaintiff’s Fourth Amendment claim is based on (1) actual arrests for trespassing
by Defendants and (2) the issuance of trespassing citations, without an attendant arrest, by
Defendants. The Court will address these two types of conduct separately in analyzing
Plaintiff’s Fourth Amendment claim.
B.
Alleged Issuance of Citations For Trespassing
Plaintiff alleges that Defendants Fisher, C. Jones, McCabe, Bigelow and Tomasetti
issued citations for trespassing without actually arresting Plaintiff, and that the issuance of these
citations violated Plaintiff’s Fourth Amendment rights. This Court finds that Plaintiff fails to
state a Fourth Amendment claim based on the issuance of trespassing citations because the mere
issuance of a trespassing citation, without any attendant restraint on an individual’s freedom of
movement, does not constitute a seizure within the meaning of the Fourth Amendment. This
Court notes that, although the Fourth Circuit does not appear to have addressed this precise
issue, every other circuit court of appeals that has addressed the issue has held that the Fourth
Amendment is not implicated by the issuance of a citation (or other similar notice of an
infraction, sometimes requiring a plaintiff to appear in court) where the plaintiff’s freedom of
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movement was never restrained. See, e.g., Martinez v. Carr, 479 F.3d 1292, 1299 (10th Cir.
2007) (holding that the police officer did not seize the plaintiff within the meaning of the Fourth
Amendment where the officer issued a misdemeanor citation to the plaintiff for resisting,
evading, or obstructing an officer, and where the officer gave the plaintiff the choice of either
signing the citation or going to jail); DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d
Cir. 2005) (holding that a summons for defiant trespass, requiring the plaintiff’s subsequent
attendance at trial, was not a Fourth Amendment seizure); Karam v. City of Burbank, 352 F.3d
1188 (9th Cir. 2003) (holding that there was no Fourth Amendment seizure where the plaintiff
was charged with a misdemeanor and, in lieu of jail time, agreed to appear in court and not leave
California without the court’s permission); DePiero v. City of Macedonia, 180 F.3d 770, 789
(6th Cir. 1999) (holding that the issuance of a parking ticket did not implicate the Fourth
Amendment); Britton v. Maloney, 196 F.3d 24, 29-30 (1st Cir. 1999) (holding that there was no
Fourth Amendment seizure where a police officer filed baseless criminal charges against the
plaintiff, where the plaintiff was not arrested or detained, but received a summons requiring him
to appear in court to defend the charges). In sum, the Court will dismiss Plaintiff’s Fourth
Amendment claims against Defendants Fisher, C. Jones, McCabe, Bigelow and Tomasetti for
issuing trespassing citations to Plaintiff without also arresting Plaintiff. Because Plaintiff only
asserts claims against Defendants Fisher, C. Jones, McCabe, and Bigelow for issuing citations,
these defendants are DISMISSED.5
C.
Alleged Unlawful Arrests For Trespassing
The Court first finds that Plaintiff has sufficiently alleged a Fourth Amendment claim
5
Plaintiff alleges an additional claim against Tomasetti for unlawful arrest, which is
addressed below.
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based on unlawful arrest against those moving Defendants who arrested Plaintiff, as opposed to
those Defendants who issued trespassing citations only. In other words, Plaintiff has articulated
facts that, when accepted as true and drawing all inferences in Plaintiff’s favor, show that
Plaintiff has raised at least the plausibility of entitlement to relief. These alleged facts, and the
inferences drawn therefrom, are that Defendants arrested Plaintiff for trespassing on Housing
Authority property while knowing that Plaintiff was, in fact, not banned from entering Housing
Authority property – i.e., Defendants knew that Plaintiff was not trespassing when they arrested
him for trespassing. Assuming these facts are true, then Defendants effected an unlawful arrest
in violation of the Fourth Amendment. Therefore, the Court will deny Defendants’ motion to
dismiss Plaintiff’s Fourth Amendment claim as to those Defendants who arrested Plaintiff for
trespassing.
1.
The Applicable Statute of Limitations
Because there is no explicit statute of limitations for actions brought pursuant to 42
U.S.C. § 1983, courts look to the personal injury statute of limitations from the relevant state.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (citing Wilson v.
Garcia, 471 U.S. 261, 266-69 (1985)). In North Carolina, the statute of limitations for personal
injuries is three years. See N.C. GEN . STAT . § 1-52(16). Under N.C. GEN . STAT . § 1-52(13), the
statute of limitations for claims against public officers acting under color of office is also three
years. Based on North Carolina law regarding the statute of limitations, this Court finds that the
applicable statute of limitations for Plaintiff’s false arrest claims is three years.
Although the statute of limitations period for Section 1983 actions is borrowed from state
law, “[t]he time of accrual of a civil rights action is a question of federal law.” Cox v. Stanton,
529 F.2d 47, 50 (4th Cir. 1975). “Federal law holds that the time of accrual is when plaintiff
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knows or has reason to know of the injury which is the basis of the action.” Id.; see Urie v.
Thompson, 337 U.S. 163, 170 (1949) (noting that “statutes of limitations . . . conventionally
require the assertion of claims within a specified period of time after notice of the invasion of
legal rights”); Blanck v. McKeen, 707 F.2d 817, 819 (4th Cir. 1983) (noting that the statute of
limitations “does not begin to run until the plaintiff discovers, or by the exercise of due diligence
should have discovered, the facts forming the basis of his cause of action”). The statute of
limitations for a § 1983 claim of false arrest begins to run on the date of the arrest. Brooks v.
City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (“There is no question that on the day
of his arrest [the plaintiff] knew or should have known both of the injury resulting from his
allegedly illegal seizure and who was responsible for any injury.”).
Plaintiff filed his initial Complaint on June 5, 2009; therefore, the three-year statute of
limitations bars any claim brought for arrests before June 5, 2006. Furthermore, where Plaintiff
added new parties and new claims in his Amended Complaint, filed on April 18, 2011, for any
amended claim to relate back to the date of the original Complaint, the amendment must
“assert[] a claim or defense that arose out of the conduct, transaction, or occurrence set out – or
attempted to be set out – in the original pleading.” FED . R. CIV . P. 15(c)(1)(B). Where the
amendment “changes the party or the naming of the party against whom a claim is asserted,” the
amendment will relate back if:
Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in by amendment: (i)
received such notice of the action that it will not be prejudiced in defending on
the merits; and (ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's identity.
FED . R. CIV . P. 15(c)(1)(C).
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2.
Arrest by Defendant Tomasetti
Defendant Tomasetti arrested Plaintiff on February 16, 2007 pursuant to a valid warrant
(Warrant 07 CR 51853), issued by Buncombe County Magistrate Matthew Moss, charging
Plaintiff with second-degree trespass. Where an officer makes an arrest pursuant to a facially
valid warrant issued by a neutral and detached magistrate, the arresting officer cannot be held
liable for false arrest. Gantt v. Whitaker, 203 F. Supp. 2d 503, 511 (M.D.N.C. 2002). Plaintiff
does not challenge the validity of the warrant. Because Tomasetti arrested Plaintiff pursuant to a
valid arrest warrant on February 16, 2007, Plaintiff’s unlawful arrest claim against Tomasetti is
dismissed.6 This is the only remaining claim against Tomasetti. Therefore, Tomasetti is
DISMISSED.
3.
Arrest by Defendant Bryson
Defendant Bryson arrested Plaintiff on September 8, 2007. First, Plaintiff did not allege
a claim against Bryson in his initial Complaint; therefore, the claims are barred by the three-year
statute of limitations. Second, by Plaintiff’s own admission, and as the Housing Authority letter
dated April 23, 2009 confirms, Plaintiff was banned from entering Housing Authority property
beginning on June 2, 2007, and for the next three years. (Doc. No. 61-1 at 18). Thus, the
alleged arrest was not unlawful because Plaintiff was banned from entering Housing Authority
property on September 8, 2007. Therefore, Defendant Bryson is DISMISSED.
4.
Arrest by Defendant Clinard
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It should also be noted that on March 28, 2007, Plaintiff pled guilty to the charges of
second-degree trespass, in Buncombe County Case No. 07 CR 051853. See (Doc. No. 10, Ex.
A). Plaintiff has not shown that the guilty plea has been overturned or invalidated. Therefore,
his claim against Defendant Tomasetti for an unlawful arrest is also barred by the principles
announced in Heck v. Humphrey, 512 U.S. 477 (1994).
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In both the initial and amended Complaints, Plaintiff alleges that Defendant Clinard
unlawfully arrested Plaintiff for trespassing on October 17, 2006. More specifically, in the
Amended Complaint, Plaintiff alleges that Defendant Clinard:
on or about 10/17/06 and in a false manner, with reckless disregard to the truth
and with conscious knowledge of his falsity, . . . pulled me over, [and] told me I
was barred from all Properties managed by the Housing Authority. I was
handcuffed, frisked and searched, arrested for trespassing and I was transported to
the Buncombe County Jail. Processed in booking place in Jail for trespassing.
Went to Court and the District Attorney dismissed the charges . . . .
(Doc. No. 61-1 at 4).
Here, accepting Plaintiff’s allegations as true, and drawing all inferences in Plaintiff’s
favor, Defendant Clinard arrested Plaintiff for trespassing, while knowing that Plaintiff was not
banned from entering Housing Authority property – i.e., while knowing that Clinard lacked
probable cause to arrest Plaintiff. As the Court has already found with regard to Plaintiff’s
allegations of false arrest against all of the named Defendants, these allegations are sufficient to
state a Fourth Amendment claim for unlawful arrest under the Twombly and Iqbal pleading
standards. Furthermore, the claim against Clinard is not barred by the three-year statute of
limitations because Plaintiff alleged the claim against Clinard in the initial Complaint.
Clinard claims the defense of qualified immunity. If Plaintiff’s allegations are true – i.e.,
if Clinard arrested Plaintiff knowing that he lacked probable cause to do so – then Clinard does
not enjoy qualified immunity because it is clearly established that an officer violates the Fourth
Amendment if he effects a warrantless arrest knowing that he lacks probable cause to effect the
arrest. The motion to dismiss as to Defendant Clinard is DENIED.
IV.
CONCLUSION
For the reasons stated herein, all Defendants except for Clinard are entitled to have all of
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the claims against them dismissed with prejudice. The Court denies the motion to dismiss as to
Plaintiff’s Fourth Amendment unlawful arrest claim against Defendant Clinard.
IT IS THEREFORE ORDERED that:
1.
The Motion to Dismiss as to Defendants Bigelow, Bryson, Fisher, C. Jones,
McCabe, Tomasetti, and Torgow, (Doc. No. 76), is GRANTED, and Plaintiff’s
claims against these Defendants are dismissed with prejudice. The Motion to
Dismiss as to Defendant Clinard is DENIED; and
2.
Plaintiff’s Motion for Jury Trial, (Doc. No. 92), is DISMISSED. Plaintiff has
invoked his right to a jury trial on his false arrest claim against Clinard. Plaintiff
will be entitled to a jury trial on this issue unless Clinard later shows the Court
that Clinard is entitled to judgment as a matter of law upon consideration of a
properly filed motion for summary judgment.
Signed: April 26, 2012
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