Anderson vs. Caldwell County Sheriff's Office, et al
Filing
163
ORDER granting in part and denying in part 38 Motion to Dismiss - (1) All claims against all Defendants based on the Fifth Amendment as stated in the First, Second, Third and Fifth Claims for Relief in the Second Amended Com plaint are hereby DISMISSED; (2) All claims against all Defendants based on Fourteenth Amendment due process violations in prosecuting the Plaintiff on less than probable cause are hereby DISMISSED; (3) All claims against all Defendants based on cons piracy are hereby DISMISSED; (4) The claims against Defendants Brackett and Pyle based on false arrest pursuant to 42 U.S.C. §1983 and/or common law are hereby DISMISSED; (5) All claims against all Defendants for malicious prosecution pursuant t o 42 U.S.C. §1983 based on any constitutional right other than Fourth Amendment seizure claims are hereby DISMISSED; (6) All claims against all Defendants based on grand jury or trial testimony are hereby DISMISSED; (7) The motion to dismiss the claims pursuant to 42 U.S.C. §1983 for failure to train and/or supervise is hereby DENIED.(8) Except as otherwise specifically granted herein, the Defendants Motion to Dismiss [Doc. 38] is hereby DENIED. Signed by District Judge Martin Reidinger on 7/12/11. (siw)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:09cv423
JERRY ANDERSON,
Plaintiff,
vs.
CALDWELL COUNTY SHERIFF’S
OFFICE; et. al.,
Defendants.
)
)
)
)
) MEMORANDUM OF DECISION
)
AND ORDER
)
)
)
)
)
THIS MATTER is before the Court on the Defendants Caldwell County
Sheriff’s Office, Jones, Stafford, Bennett, Hartley, Brackett and Pyle’s Motion
to Dismiss [Doc. 38].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, United States Magistrate Judge Dennis L. Howell was
designated to consider the motion and to submit recommendations for its
disposition.
On September 16, 2010, the Magistrate Judge filed a Memorandum and
Recommendation in which he recommended granting in part the Motion to
Dismiss. [Doc. 54]. The Plaintiff timely filed objections to portions of that
recommendation. [Doc. 46].
PROCEDURAL HISTORY
On February 16, 2009, the Plaintiff brought an action in state court
against Defendants Caldwell County Sheriff’s Office, Sheriff Alan Jones,
Deputy Sheriff Jeffrey Stafford, Deputy Sheriff Brian Bennett, Deputy Sheriff
Shelly Hartley, and Deputy Sheriffs John and Jane Doe (the County
Defendants). [Doc. 1, at 14]. The Plaintiff voluntarily dismissed that state
court action on March 20, 2009. [Id.].
The Plaintiff initiated this federal court action on November 20, 2009.
[Doc. 1]. On January 6, 2010, the Plaintiff amended his Complaint in order to
add Deputy Sheriff Christopher Brackett (Brackett), Deputy Sheriff Tracy Pyle
(Pyle) and Doe Bond Company as defendants. [Id.]. On May 3, 2010, the
Plaintiff was granted leave to file a Second Amended Complaint substituting
Fidelity and Deposit Company of Maryland and The Ohio Casualty Insurance
Company (the Bond Defendants) as defendants in lieu of Doe Bond
Company. [Doc. 30].
The Second Amended Complaint was filed on May 14, 2010. [Doc. 31].
The Plaintiff has alleged claims pursuant to 42 U.S.C. §1983 for false arrest,
malicious prosecution, unlawful seizure, fabrication of evidence, failure to
investigate, failure to adequately train and supervise, and due process and
2
Fifth Amendment violations. [Id.].
He also alleged state law claims for
malicious prosecution, intentional infliction of emotional distress, false
imprisonment, obstruction of justice, negligence and bond violations. [Id.].
The County Defendants moved to dismiss for failure to state claims on which
relief may be granted. [Doc. 38]. The Bond Defendants filed answer to the
Second Amended Complaint but did not separately move to dismiss. [Doc.
44].
On September 16, 2010, the Magistrate Judge issued a Memorandum
and Recommendation addressing the County Defendants’ motion to dismiss.
[Doc. 54]. The Plaintiffs filed objections to portions of the recommendation.
[Doc. 55]. On November 2, 2010, the Plaintiff moved for leave to amend the
Complaint a third time in order to more specifically state the claim for
intentional infliction of emotional distress. [Doc. 58]. That motion was later
withdrawn. [Doc. 134, 149]
STANDARD OF REVIEW
A district court reviews specific objections to a Memorandum and
Recommendation under a de novo standard. 28 U.S.C. §636(b). "Parties
filing objections must specifically identify those findings objected to." Battle
v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987),
overruled on other grounds Douglass v. United Ervs. Auto. Ass’n, 79 F.3d
3
1415 (5 th Cir. 1996). If a party makes only general objections, de novo review
is not required.
Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.
1997)(boilerplate objections will not avoid the consequences of failing to
object altogether).
“Section 636(b)(1) does not countenance a form of
generalized objection to cover all issues addressed by the magistrate judge;
it contemplates that a party’s objection to a magistrate judge’s report be
specific and particularized, as the statute directs the district court to review
only those portions of the report or specified proposed findings or
recommendations to which objection is made.” United States v. Midgette, 478
F.3d 616, 621 (4 th Cir. 2007), certiorari denied 551 U.S. 1157, 127 S.Ct. 3032,
168 L.Ed.2d 749 (2007) (emphasis in original).
Likewise, merely reiterating the same arguments made in the pleading
submitted to the Magistrate Judge does not warrant de novo review. Id.;
Veney v. Astrue, 539 F.Supp.2d 841, 846 (W.D.Va. 2008). “Allowing a litigant
to obtain de novo review of [the] entire case by merely reformatting an earlier
brief as an objection ‘mak[es] the initial reference to the magistrate useless.’”
Id. In order “to preserve for appeal an issue in a magistrate judge’s report, a
party must object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district court of the true
ground for the objection.” Midgette, 478 F.3d at 622.
4
The County Defendants have moved to dismiss for failure to state
claims on which relief may be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). In order to survive a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true,
‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 must
“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated
a claim entitling him to relief, i.e., the ‘plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4 th Cir. 2009), quoting Twombly, 550
U.S. at 570.
[T]he Supreme Court has held that a complaint must contain
“more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” To discount such
unadorned conclusory allegations, “a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are not more than conclusions, are not entitled to
the assumption of truth.” This approach recognizes that “naked
assertions” of wrongdoing necessitate some “factual
enhancement” within the complaint to cross “the line between
possibility and plausibility of entitlement to relief.”
At bottom, determining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule 12(b)(6)
motion will “be a context-specific task that requires the reviewing
5
court to draw on its judicial experience and common sense. But
where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged–but it has not ‘show[n]’–‘that the pleader is entitled to
relief,’” as required by Rule 8. ... [E]ven though Rule 8 “marks a
notable and generous departure from the hyper-technical,
codepleading regime of a prior era, ... it does not unlock the doors
of discovery for a plaintiff armed with nothing more than
conclusions.”
Id., quoting Twombly, 550 U.S. at 555, 557 and Iqbal, 129 S.Ct. at 1950.
ALLEGATIONS OF THE AMENDED COMPLAINT
The Plaintiff did not object to the Magistrate Judge’s recitation of the
factual allegations contained within the Second Amended Complaint. In short,
it is alleged that the Plaintiff’s wife, Emily Anderson, was reported as missing
on December 29, 2005. Her body was found on January 7, 2006 in South
Carolina stuffed in a tool box in the bed of her pick-up truck. She had died
from two gunshot wounds to her torso.
On that same day, the Plaintiff was arrested and charged with his wife’s
murder. He was subsequently indicted by a state grand jury and charged with
first degree murder. On July 20, 2007, after over a month of trial, the jury was
unable to reach a unanimous verdict and the state court judge declared a
mistrial. On November 27, 2008, the state prosecutor dismissed the charges
without prejudice.
Other portions of the complaint are specifically referenced herein in
6
connection with the discussion of the Plaintiff’s objections.
RECOMMENDATIONS TO WHICH NO OBJECTIONS WERE MADE
The followings recommendations by the Magistrate Judge have not
been disputed by the Plaintiff and therefore, these claims will be dismissed.
The Plaintiff conceded that to the extent he asserted claims against the
Defendants based on the Fifth Amendment in the First, Second, Third and
Fifth Claims of the Second Amended Complaint, those claims should be
dismissed. [Doc. 47, at 8 n.1].
As a result, all Fifth Amendment claims
asserted in those counts will be dismissed as to all Defendants.
In each of the five claims asserted in the Second Amended Complaint,
the Plaintiff alleged Fourteenth Amendment due process violations in the
course of the investigation and in his arrest, indictment and prosecution based
on less than probable cause. The Magistrate Judge recommended dismissal
of such claims because “the Supreme Court has rejected the proposition that
a defendant possesses a liberty interest in avoiding prosecution upon less
than probable cause.” Brooks v. City of Winston-Salem, N.C., 85 F.3d 178 (4 th
Cir. 1996). No objection to this recommendation was filed by the Plaintiff and,
having conducted a careful review thereof, it is adopted.
Although the Plaintiff did not affirmatively caption any claim as based on
civil conspiracy, he used the word “conspiracy” in the body of the Second
7
Amended Complaint. The County Defendants moved to dismiss any claim
based on civil conspiracy pursuant to §1983 or common law. The Magistrate
Judge correctly recommended the dismissal of any such claims because no
factual allegations were made which would support such a claim. The Plaintiff
did not object and, having conducted a careful review, the Court adopts that
recommendation.
RECOMMENDATIONS TO WHICH OBJECTIONS WERE MADE
Dismissal based on the statute of limitations.
Defendants Brackett and Pyle moved for summary judgment dismissal
based on the statute of limitations only as to the false arrest claim. The
Magistrate Judge recommended that all claims against Defendants Brackett
and Pyle be dismissed because they are all barred by the statute of
limitations. Plaintiff objected, arguing that the claims other than the false
arrest claim should not be dismissed because: first, the Defendants did not so
move; and second, the statute of limitations did not run as to the other claims
stated against those two defendants. The Plaintiff did not object, however, to
the recommendation that the false arrest claim be dismissed because of the
expiration of the statute of limitations. Based thereon and having conducted
a careful review, the Court agrees that the false arrest claims based on §1983
and common law should be dismissed as to Defendants Brackett and Pyle.
8
As to the other claims against Defendants Brackett and Pyle, the
Defendants concede that the Plaintiff’s objection is of merit, noting that
[a]lthough Defendants Brackett and Pyle only requested ... the
dismissal of the false arrest claims against them, Judge Howell
determined that it was appropriate to dismiss all claims against
them on statute of limitations grounds. Defendants Brackett and
Pyle have no objection to the District Court making a similar
finding if it is deemed appropriate.
[Doc. 57, at 4 n.1] (emphasis provided).
The Defendants thus concede they did not move for dismissal of any
other claims based on the statute of limitations. The Court therefore will not
address the issue since the Plaintiff has not had an opportunity to respond to
a motion for such relief. For that reason the motion to dismiss, to the extent
that it may extend to the other claims against Defendants Brackett and Pyle
(i.e. claims other than false arrest), will be denied.
Dismissal of the §1983 malicious prosecution claims.
In the Second Claim for Relief of the Second Amended Complaint, the
Plaintiff has alleged a claim pursuant to §1983 for malicious prosecution. In
this regard, the Fourth Circuit has held that “[w]hat we termed a ‘malicious
prosecution’ claim ... is simply a claim founded on a Fourth Amendment
seizure that incorporates elements of the analogous common law tort of
malicious prosecution - specifically, the requirement that the prior proceeding
terminate favorably to the plaintiff.” Lambert v. Williams, 223 F.3d 257, 261-62
9
(4 th Cir. 2000), certiorari denied 531 U.S. 1130, 121 S.Ct. 889, 148 L.Ed.2d
797 (2001).
W hile it is not entirely clear whether the Constitution recognizes
a separate constitutional right to be free from malicious
prosecution, if there is such a right, the plaintiff must demonstrate
both an unreasonable seizure and a favorable termination of the
criminal proceeding flowing from the seizure. ... [T]he significance
of the favorable termination element is not only that it constitutes
a prerequisite for recovery, but also that it establishes the time
from which the claim accrues for purposes of determining whether
the statute of limitations has run.
Snider v. Seung Lee, 584 F.3d 193, 199 (4 th Cir. 2009), certiorari denied 130
S.Ct. 2073, 176 L.Ed.2d 415 (2010) (emphasis in original).
The Fourth Circuit therefore recognizes a Fourth Amendment claim for
wrongful seizure that incorporates the elements of the analogous common law
tort of malicious prosecution. Id. Moreover, the precedents on which Snider
is based, date from as early as 1996. Id., citing Lambert, 223 F.3d at 261-62;
Brooks, 85 F.3d at 178; accord, Gantt v. Whitaker, 57 Fed.Appx. 141, 146 (4 th
Cir. 2003).
“In order for a plaintiff to state a section 1983 malicious
prosecution claim for a seizure violative of the Fourth Amendment, [it is]
required that the defendant have ‘seized [plaintiff] pursuant to legal process
that was not supported by probable cause and that the criminal proceedings
[have] terminated in [plaintiff’s] favor.’” Burrell v. Virginia, 395 F.3d 508, 514
(4 th Cir. 2005), quoting Brooks, 85 F.3d at 183-84. (emphasis in original).
10
The Magistrate Judge’s recommendation was limited to the dismissal of
any malicious prosecution claim brought pursuant to §1983 which was
grounded on any claim other than a Fourth Amendment seizure. Indeed, the
Defendants’ motion was so limited. [Doc. 39, at 9-10]. The Plaintiff has
objected only to the recommendation, if any, that his claim pursuant to the
Fourth Amendment be dismissed. The Court has reviewed the Magistrate
Judge’s recommendation and finds it is limited to any claim brought by the
Plaintiff pursuant to §1983 for malicious prosecution unrelated to the Fourth
Amendment seizure claim. As such, Plaintiff’s objection does not address the
recommendation that the Magistrate Judge had made as to the malicious
prosecution claim. Therefore, Plaintiff’s §1983 claim for malicious prosecution
pursuant to common law will be dismissed, but Plaintiff’s §1983 claim for
malicious prosecution under the Fourth Amendment will not.
Testimonial immunity.
In the §1983 claims, the Plaintiff variously alleges that the Defendants
caused him to be indicted, arrested and prosecuted based on information
unsupported by probable cause.
He also alleges that the Defendants
fabricated evidence. The County Defendants moved to dismiss any claims
arising out of their testimony before the grand jury and/or at trial, claiming
absolute immunity. The Magistrate Judge noted that “[t]o the extent that any
11
claims asserted by plaintiff arise out of testimony before the grand jury or at
trial, they should be dismissed as the officers enjoy absolute immunity from
civil liability as to such testimony.” [Doc. 54, at 20].
The Plaintiff objects, noting that he
has not sued for “perjury,” and has not based his claims on the
testimony of the defendants, on which they could claim absolute
immunity. Nevertheless, in the event that the Magistrate Judge is
recommending that the false information defendants provided in
seeking the indictment and prosecution of plaintiff [not] be used
to support any subsequent determination of probable cause,
plaintiff respectfully objects.
[Doc. 55, at 18].
Based on this qualification by the Plaintiff as to his objection, the Court
finds that the Plaintiff has conceded he does not base any claims on
testimony provided by the Defendants before the grand jury or at trial. As a
result, any such claims will be dismissed. The Court does not read the
Magistrate Judge’s recommendation or the Defendants’ motion on which it is
based as relating to any other issue.
The §1983 official capacity claims based on failure to train and
supervise.
The Plaintiff alleges in the Fifth Claim for Relief that the Defendant
Sheriff and the deputies are liable in their official capacities for a failure to
12
train.1 That failure is shown, he argues, by the allegations that the deputies
improperly removed the truck containing Emily Anderson’s body by tow truck
from the crime scene prior to an official crime scene investigation. [Doc. 31,
at 11].
Once removed, instead of impounding the truck at the Sheriff’s
Department, the deputies allowed it to remain in the garage of the owner of
the tow truck. [Id.].
The removal of the truck was done without proper
photographing, testing or documentation of the contents and condition of the
truck prior to and immediately after removal. [Id.]. Moreover, once located
inside the garage, it was the owner of the tow truck, allegedly under the
direction of the deputies, who discovered the body by opening the tool box
while not wearing protective gloves or other clothing designed to prevent
crime scene contamination. [Id.]. Once the body was discovered, the deputies
removed the tool box from the truck, forced open the lid, removed the body
from the box, placed it on a sheet, removed clothing from the body, failed to
document the disposition of that clothing, removed hair from inside the truck
without documentation and failed to collect fingerprint evidence from inside
the truck.2 [Id., at 11-12]. It is also alleged that the Defendants failed to
1
Although the claim refers generally to “Defendants,” the Court agrees with the
Magistrate Judge’s conclusion, to which no objection was made, that the claim actually
refers to Sheriff Jones and Captain Stafford who had supervisory responsibility.
2
Specifically, Plaintiff points to an envelope found empty inside the truck. Plaintiff
asserts that his wife had placed more than $1000 in the envelope to pay farm laborers,
13
properly investigate reports that Emily Anderson had been seen alive in South
Carolina in the days after she went missing and Defendants also failed to
retrieve a pair of prescription glasses from a hotel in South Carolina which
could have been tested for identification as hers.3 [Id., at 8-12, 15-16]. The
Plaintiff also alleged that the Defendants used an improperly credentialed and
unqualified cadaver dog handler. [Id., at 19-22]. Each of these improper acts
and omissions, the Plaintiff alleges, could have either (1) shown that he was
not the offender since the victim was alive after he reported her missing
and/or (2) provided evidence of the actual murderer.
The failure to train officials can result in liability under §1983 when that
failure shows a “deliberate indifference” to the rights of citizens and the
identified deficiency in the training program is closely related to the injury at
hand. City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989).
Additionally, a plaintiff must show a “direct causal link” between “a
specific deficiency in training and the particular violation alleged.”
... [A] plaintiff must demonstrate specific training deficiencies and
either (1) that inadequately trained employees engaged in a
pattern of unconstitutional conduct, or (2) that a violation of a
federal right is a “highly predictable consequence of a failure to
equip law enforcement officers with specific tools to handle
thus pointing to theft as a motive for the murder.
3
It is undisputed that during the same time the Plaintiff remained in North
Carolina.
14
recurring situations.”
Hill v. Robeson County, N.C., 733 F.Supp.2d 676, 686-87 (E.D.N.C. 2010),
citing Harris, 489 U.S. at 391; Board of County Com’rs of Bryan County, Okl.
v. Brown, 520 U.S. 397, 407-09, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)
(other citations omitted).
The Plaintiff has identified specific training deficiencies which resulted
in the alleged mishandling of the investigation. As noted above, he has also
alleged a direct causal connection between the deficiency and the injury to
him. It can reasonably be inferred from the allegations made that the need for
more or different training was so obvious that the County Defendants were
deliberately indifferent to the need. Id.; Lytle v. Doyle, 326 F.3d 463, 471 (4 th
Cir. 2003) (liability may attach through an omission such as failure to train
officers that manifests deliberate indifference to rights of citizens). The Court
finds, at least at this stage of the litigation, that the Plaintiff has stated a claim
for failure to train and therefore respectfully disagrees with the Magistrate
Judge.
In the Second Amended Complaint, it is alleged that Defendant Jones
succeeded Sheriff Clark as Sheriff of Caldwell County.4 [Doc. 31, at 3].
Defendant Stafford was a Captain in the Criminal Investigations Division and
4
Sheriff Clark died in February 2007. [Id.].
15
the lead investigator of the homicide. [Doc. 31, at 3, 13]. Defendants Stafford
and Pyle were the officers on the scene when the truck was located,
transported back to Caldwell County, and placed in the private garage. [Id.,
at 7-13]. They were also present or nearby when the body was discovered.
[Id.]. It was these officers who removed the body from the tool box, removed
clothing and processed the truck. [Id.]. Although Stafford was told that a pair
of glasses had been found in the hotel where Emily Anderson had been seen,
he did not retrieve them to ascertain whether they belonged to her. [Id., at 1516]. Stafford engaged the services of a dog handler without verifying his true
identity.5 [Doc. 31, at 20]. In fact, the handler gave Stafford a false name and
did not provide any documentation of his identity, qualifications, or credentials.
[Id., at 20-21]. Moreover, Stafford did not request the same. [Id.]. During the
cadaver search, the handler and Stafford failed to make a video recording of
the event. [Id.]. When it was later discovered that the event had not been
recorded, they re-enacted the test in order to record it, thus fabricating
evidence. [Id.]. Stafford, and the other Defendants, provided the fabricated
re-enactment to the state prosecutor without explaining that it was not the
actual test thus allowing the prosecutor to present fabricated evidence to the
5
It was later learned that this individual had actually provided a false identity to
the Sheriff’s Department.
16
jury. [Id.]. Stafford discussed with Sheriff Clark the investigation and on-going
developments and Clark on more than one occasion provided briefings about
the case to the media. [Id., at 14, 17, 22].
Supervisory officials may be held liable for constitutional injuries inflicted
by their subordinates. Baynard v. Malone, 268 F.3d 228, 235 (4 th Cir. 2001),
certiorari denied 535 U.S. 954, 122 S.Ct. 1357, 152 L.Ed.2d 353 (2002).
Such liability “is premised on ‘a recognition that supervisory indifference or
tacit authorization of subordinates’ misconduct may be a causative factor in
the constitutional injuries they inflict on those committed to their care.’” Id.,
quoting Shaw v. Stroud, 13 F.3d 791, 798 (4 th Cir. 1994), certiorari denied 513
U.S. 814, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994).
In order to establish
supervisory liability, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that
his subordinate was engaged in conduct that posed a pervasive
and unreasonable risk of constitutional injury to citizens like the
plaintiff; (2) that the supervisor’s response to that knowledge was
so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices[ ]; and (3) that
there was an affirmative causal link between the supervisor’s
inaction and the particular constitutional injury suffered by the
plaintiff.
Baynard, 268 F.3d at 235.
The Court again respectfully disagrees with the Magistrate Judge’s
recommendation. The allegations of the Second Amended Complaint allege
17
sufficient facts from which it may be inferred that Clark and Stafford had actual
and constructive knowledge of conduct which constituted a constitutional
injury, there was both deliberate indifference to that conduct and tacit
authorization thereof or involvement therewith, and there is an affirmative link
between the two. Jennings v. University of North Carolina, 482 F.3d 686, 701
(4 th Cir. 2007), certiorari denied 552 U.S. 887, 128 S.Ct. 247, 169 L.Ed.2d 147
(2007) (supervisor had actual knowledge of misconduct and response was so
inadequate as to show deliberate indifference or tacit authorization). This
complaint “contain[s] sufficient factual matter, accepted as true, ‘to state a
claim to relief that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949. The
Plaintiff has demonstrated more than “a sheer possibility that a defendant has
acted unlawfully.” Id. He has “articulate[d] facts, when accepted as true, that
‘show’ that the plaintiff has stated a claim entitling him to relief, i.e., the
‘plausibility of entitlement to relief.’” Giacomelli, 588 F.3d at 193.
The claim for infliction of emotional distress and motion to amend.
On June 13, 2011, the Plaintiff moved to dismiss his seventh claim for
relief alleging intentional infliction of emotional distress and for leave to
withdraw his pending motion to amend the complaint (Doc. 58) in order to
restate that claim. [Doc. 134]. Those motions were both allowed and as a
result, any discussion here is moot.
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CONCLUSION
In conclusion, it bears noting that despite continued vigorous litigation
of this action, the parties’ mediator recently reported that although they
reached an impasse during the mediation on March 15, 2011, he “declared a
recess and the mediation shall be held open.” [Doc. 86]. The mediator thus
reported that an additional opportunity to explore settlement was available.
Should such an opportunity be desired by the parties, they should seek the
same sooner rather than later in order to avoid unnecessary expenditures of
judicial and legal resources.
ORDER
IT IS, THEREFORE, ORDERED that the Defendants Caldwell County
Sheriff’s Office, Jones, Stafford, Bennett, Hartley, Brackett and Pyle’s Motion
to Dismiss [Doc. 38] is hereby GRANTED IN PART AND DENIED IN PART
as follows:
(1)
All claims against all Defendants based on the Fifth Amendment
as stated in the First, Second, Third and Fifth Claims for Relief in
the Second Amended Complaint are hereby DISMISSED;
(2)
All claims
against all Defendants
based
on
Fourteenth
Amendment due process violations in prosecuting the Plaintiff on
less than probable cause are hereby DISMISSED;
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(3)
All claims against all Defendants based on conspiracy are hereby
DISMISSED;
(4)
The claims against Defendants Brackett and Pyle based on false
arrest pursuant to 42 U.S.C. §1983 and/or common law are
hereby DISMISSED;
(5)
All claims against all Defendants for malicious prosecution
pursuant to 42 U.S.C. §1983 based on any constitutional right
other than Fourth Amendment seizure claims are hereby
DISMISSED;
(6)
All claims against all Defendants based on grand jury or trial
testimony are hereby DISMISSED;
(7)
The motion to dismiss the claims pursuant to 42 U.S.C. §1983 for
failure to train and/or supervise is hereby DENIED.
(8)
Except as otherwise specifically granted herein, the Defendant’s
Motion to Dismiss [Doc. 38] is hereby DENIED.
Signed: July 12, 2011
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