Gaddy v. Yelton et al

Filing 31

MEMORANDUM OF DECISION AND ORDER, that the Plaintiffs Written Objections to the Memorandum and Recommendation [Doc. 29] are OVERRULED; accepting Magistrate Judge's 28 Memorandum and Recommendations.; granting 21 Moti on to Dismiss, and the following claims set forth in the Plaintiffs Amended Complaint are hereby DISMISSED: (1) The claims brought pursuant to 42 U.S.C. § 1983 against Defendants Yelton, Sheehan, Mitchell, Hunter, and Stover in their official ca pacities; (2) The claims brought pursuant to 42 U.S.C. § 1983 against the City of Asheville; (3) The North Carolina tort claims of negligence, gross negligence, trespass by a public officer, and malicious prosecution brought against the City and the Individual Defendants in their official capacities; and (4) The claim asserted in the Sixth Claim for Relief for deprivation of substantive due process in violation of the North Carolina Constitution. This case shall proceed on the Plaintiffs & #167; 1983 and state law tort claims against the Individual Defendants in their individual capacities. IT IS FURTHER ORDERED that the parties shall conduct an Initial Attorneys Conference within fourteen (14) days of this Order and file a Certificate of Initial Attorneys Conference with the Court within seven (7) days thereafter. Signed by District Judge Martin Reidinger on 8/16/11. (siw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10cv214

ROBERT D. GADDY, JR.,
Plaintiff,
vs.
W.M. YELTON, in his Individual and
Official Capacity, DOUG SHEEHAN,
in his Individual and Official
Capacity, NICHOLAS RYAN
MITCHELL, in his Individual and
Official Capacity, ERVIN HUNTER,
in his Individual and Official
Capacity, JIMMY STOVER, in his
Individual and Official Capacity, and
THE CITY OF ASHEVILLE,
Defendants.

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MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Defendants’ Motion to
Dismiss and for Judgment on the Pleadings [Doc. 21]; the Magistrate
Judge’s Memorandum and Recommendation regarding the disposition of
such Motion [Doc. 28]; and the Plaintiff’s Written Objections to the
Memorandum and Recommendation [Doc. 29].

I.

PROCEDURAL BACKGROUND
The Plaintiff Robert D. Gaddy, Jr., brings this action against the

Defendants W.M. Yelton, Doug Sheehan, Nicholas Ryan Mitchell, Ervin
Hunter, and Jimmy Stover (“Individual Defendants”) and the City of
Asheville (“City”), asserting claims under 42 U.S.C. § 1983 for violation of
his Fourth Amendment rights to be free from unlawful seizure and
excessive force, arising from Plaintiff’s arrest on October 27, 2008, and for
violation of his First Amendment rights to free speech, to travel, and to
associate, arising from the Plaintiff being banned in April 2009 from City
Housing Authority property for a period of three years. The Plaintiff also
asserts state law claims for negligence, gross negligence, trespass by a
public officer, and malicious prosecution. [Amended Complaint, Doc. 14 at
10-18]. All claims are asserted against the Individual Defendants in both
their individual and official capacities. [Id.]. To the extent that the
Individual Defendants are entitled to immunity from the state law claims
asserted, the Plaintiff alternatively pleads a claim under Article I, Sections 1
and 19 of the North Carolina Constitution for a violation of substantive due
process. [Id. at 18-19].

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On January 27, 2011, the Defendants moved for judgment on the
pleadings on the official capacity state law claims on the basis of
governmental immunity. [Doc. 21]. They further moved to dismiss the §
1983 claims against the City and the Individual Defendants in their official
capacities as well as the claim brought pursuant to the North Carolina
Constitution against the Individual Defendants. [Doc. 21].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of
Designation of this Court, the Honorable Dennis L. Howell, United States
Magistrate Judge, was designated to consider the Defendants’ motions and
to submit a recommendation regarding their disposition. On April 22, 2011,
the Magistrate Judge entered a Memorandum and Recommendation in
which he recommended that the Defendants’ motions be granted. [Doc.
28]. Specifically, the Magistrate Judge recommended: (1) that the § 1983
claims brought against the Individual Defendants in their official capacities
should be dismissed, as such claims are duplicative of the claims brought
against the City [Id. at 7-8]; (2) that the § 1983 claims against the City
should be dismissed because the Plaintiff had failed to allege a plausible
claim for relief based on a theory of municipal policy or custom [Id. at 8-14];
(3) that the North Carolina tort claims brought against the City and the

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Individual Defendants in their official capacities should be dismissed under
the doctrine of governmental immunity [Id. at 15-18]; and (4) that the
Plaintiff’s substantive due process claim under the North Carolina
Constitution should be dismissed because the Plaintiff has an adequate
remedy under state law [Id. at 18-20].
The Plaintiff timely filed objections, challenging the Magistrate
Judge’s Recommendation that the § 1983 claims against the City and the
substantive due process claim under the North Carolina Constitution
should be dismissed.1 [Doc. 29]. The Defendants have responded,
arguing that the Court should adopt the Recommendation in its entirety.
[Doc. 30].
Having been fully briefed, this matter is ripe for review.
II.

STANDARD OF REVIEW
A.

Standard of Review Applicable to Objections to Magistrate
Judge’s Proposed Findings and Recommendation

The Federal Magistrate Act requires a district court to “make a de
novo determination of those portions of the report or specific proposed

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The Plaintiff does not object to the recommended dismissal of the § 1983 claims
against the Individual Defendants in their official capacities or the North Carolina tort
claims against the Individual Defendants and the City on the grounds of governmental
immunity. [See, Doc. 29 at 12]. Therefore, the recommendation of the Magistrate
Judge will be adopted as to those claims, and they will be dismissed.
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findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). 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.” United States v. Midgette, 478 F.3d 616,
622 (4th Cir. 2007). The Court is not required to review, under a de novo
or any other standard, the factual or legal conclusions of the magistrate
judge to which no objections have been raised. Thomas v. Arn, 474 U.S.
140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). Additionally, the
Court need not conduct a de novo review where a party makes only
“general and conclusory objections that do not direct the court to a specific
error in the magistrate's proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
B.

Rule 12(b)(6) Standard

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 Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To be

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“plausible on its face,” a plaintiff must demonstrate “more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949.

[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 contextspecific task that requires the reviewing 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, code
pleading regime of a prior era, ... it does not unlock
the doors of discovery for a plaintiff armed with
nothing more than conclusions.”

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Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly,
550 U.S. at 555, 557, 127 S.Ct. 1955 and Iqbal, 129 S.Ct. at 1950)
(citations and internal quotation marks omitted).
In considering a motion for judgment on the pleadings, the Court
applies the same standard for motions made pursuant to Rule 12(b)(6).
Burbach Broadcasting Co. v. Elkins Radio Corp., 278 F.3d 401, 405-06
(4th Cir. 2002).
III.

FACTUAL BACKGROUND
The Magistrate Judge summarized the relevant facts as alleged in

the Amended Complaint as follows:
The crux of this dispute arises out of an incident
involving Plaintiff, Sergeant Yelton, and at least two
other unidentified officers. At approximately 8:00 p.m.
on October 27, 2008, Plaintiff approached the front
door of an acquaintance’s house in Asheville. As he
was approaching the door, someone called out
“Robert.” Plaintiff then saw Sergeant Yelton, who
approached him and asked for identification. After
looking at Plaintiff’s driver’s license, Sergeant Yelton
stated that he thought he had a warrant for his arrest,
grabbed Plaintiff, and placed him in handcuffs with his
hands behind his back. Plaintiff did not resist.
As Sergeant Yelton was walking Plaintiff away from
the house, Plaintiff felt his left cuff come free.
Sergeant Yelton then yelled an obscenity at Plaintiff,
and Plaintiff felt a blow to the right side of his head.
Sergeant Yelton and at le[a]st two other uniformed
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officers then began kicking, punching, and beating
Plaintiff with a baton. At some point, Sergeant Yelton
started choking Plaintiff and yelling at him to stop
breathing. When Plaintiff exclaimed that he could not
breathe, one of the other officers sprayed mace in his
face.
Subsequently, an ambulance arrived and transported
Plaintiff to the hospital, where he received treatment
for the injuries sustained during this altercation,
including having a chest tube inserted to repair a
collapsed lung. While he was being transported to
the hospital, the officers charged Plaintiff with simple
assault, trespass, resisting a public officer, and
assault on a government official. After Plaintiff was
released from the hospital, his wife filed a written
complaint with the Asheville Police Department.
Although the Asheville Police Department conducted
an internal investigation into the incident, it
exonerated the officers.
In early 2010, Plaintiff was acquitted of all charges
stemming from the October 27, 2008 incident.
Plaintiff contends that this altercation and the
subsequent criminal prosecution stemmed from a
personal animosity between Plaintiff and the
Individual Defendants.
In support of his claim that the October 27, 2008,
altercation and the subsequent criminal prosecution
stemmed from personal animosity between the
parties, Plaintiff points to several incidents that took
place in the months leading up to the altercation. In
March 2008, Officer Stover’s grandmother, Maxine
Fontane, asked Plaintiff’s grandmother if she could
store a vehicle on the property where Plaintiff was
staying. Ms. Fontane also told Plaintiff that he could
sell the car if he could get at least $3000 for the
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vehicle. Plaintiff then found a prospective buyer who
started making repairs to the vehicle prior to
purchasing the car. Confusion over possession and
ownership of the vehicle ensued, and Plaintiff was
charged with obtaining property by false pretenses.
These charge[s] were later dismissed.
Several months later, Plaintiff was driving a moped
with his son as a passenger. Officer Stover, who was
later joined by Officer Hunter, pulled Plaintiff over.
Officer Hunter told Plaintiff that they pulled him over
because he “shot the bird” at him; Plaintiff denied
making this gesture. Sergeant Yelton later appeared
on the scene and stood in the background observing
the situation. Officer Hunter wrote Plaintiff a citation
for disorderly conduct, but Plaintiff was acquitted of
the charges at trial.
After the October 27, 2008 incident, Plaintiff received
a letter from the City banning him from all of the
properties managed by the Housing Authority for a
period of three years. Plaintiff contends that he was
banned from these properties as a result of
information provided to the City by the Individual
Defendants. He further contends that the Individual
Defendants conspired to get him placed on the
banned list by the City. This action ensued.
[Doc. 28 at 3-5 (citations and headings omitted)].
The Plaintiff contends that in analyzing his claims, the Magistrate
Judge took “a dismissive and reductionist view of the factual allegations
made in the Amended Complaint.” [Doc. 29 at 3]. The Plaintiff, however,
does not point to any specific error made in the Magistrate Judge’s

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recitation of the alleged facts. Absent any specific objections, the Court is
not required to conduct a de novo review of the Magistrate Judge’s factual
summary. Upon careful review, the Court finds that the Magistrate Judge’s
recitation of the relevant facts is correct. Accordingly, the factual
background as set forth in the Memorandum and Recommendation [Doc.
28 at 2-5] and incorporated herein is accepted.
IV.

DISCUSSION
A.

Pleading Requirements

As a preliminary matter, the Plaintiff argues that the Magistrate Judge
improperly imposed “a heightened pleading standard” beyond that required
by Rule 8 of the Federal Rules of Civil Procedure and by the Supreme
Court in Twombly and Iqbal, supra. [Doc. 29 at 2-3].
Contrary to the Plaintiff’s argument, the Magistrate Judge’s
Memorandum and Recommendation does not impose any kind of
heightened pleading standard on the Plaintiff. Rather, the Magistrate
Judge correctly analyzed whether the Amended Complaint contains
“enough facts to state a claim to relief that is plausible on its face.” [Doc.
28 at 7 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)]. In so doing,
the Magistrate Judge correctly noted that facial plausibility requires a

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plaintiff to “plead[ ] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged” [Id. (quoting Iqbal, 129 S.Ct. at 1949)], and to set forth allegations
that “move a plaintiff’s claims from possible to plausible” [Id. (citing
Twombly, 550 U.S. at 570, 127 S.Ct. 1955 and Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009)].
The Magistrate Judge correctly summarized the standard of review
dictated by Rule 8 and the relevant Supreme Court precedent. The
Plaintiff’s objection to the pleading standard utilized by the Magistrate
Judge therefore is overruled.
B.

Municipal Liability

Next, the Plaintiff contends that the Magistrate Judge erred in
concluding that the Amended Complaint fails to state plausible claims for
municipal liability under § 1983 for the violation of his Fourth Amendment
and First Amendment rights. [Doc. 29 at 3-7].
In order to succeed on a theory of municipal liability under § 1983, a
plaintiff must show that “the municipality itself cause[d] the constitutional
violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct.
1197, 103 L.Ed.2d 412 (1989). A municipality cannot be held vicariously

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liable under § 1983 for the actions of its employees under a theory of
respondeat superior. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
A plaintiff may establish municipal liability by demonstrating the
existence of an express policy that is inherently unconstitutional when
enforced. City of Oklahoma City v. Tuttle, 471 U.S. 808, 822, 105 S.Ct.
2427, 85 L.Ed.2d 791 (1985) (plurality opinion). In the absence of an
express policy, a plaintiff can establish municipal liability by demonstrating
a condoned custom or usage, that is, a practice that is so “persistent and
widespread and so permanent [and] so well-settled as to constitute a
‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691, 98 S.Ct.
2018 (citation omitted). Alternatively, municipal liability may be established
by evidence that a municipality failed to train its officers adequately, if such
failure amounts to “deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton, 489 U.S. at 388, 109
S.Ct. 1197.
1.

“Condoned Custom” Theory

For liability to attach for an unconstitutional custom or usage, “(1) the
municipality must have ‘actual or constructive knowledge’ of the custom

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and usage by its responsible policymakers, and (2) there must be a failure
by those policymakers, ‘as a matter of specific intent or deliberate
indifference,’ to correct or terminate the improper custom and usage.”
Randall v. Prince George’s County, Md., 302 F.3d 188, 210 (4th Cir. 2002).
A custom or usage cannot be established by proof of a single constitutional
violation. Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987) (“proof of
a single violation . . . obviously cannot support an inference that the
violation resulted from a municipally condoned custom of comparable
practices”).
As the Fourth Circuit has explained,
[C]onstructive knowledge . . . may be inferred from
the widespread extent of the practices, general
knowledge of their existence, manifest opportunities
and official duty of responsible policymakers to be
informed, or combinations of these. Moreover, a
sufficient causal connection between such a known
but uncorrected custom or usage and a specific
violation is established if occurrence of the specific
violation was made reasonably probable by permitted
continuation of the custom . . . . [T]he failure to correct
the known practices must be such as to make the
specific violation almost bound to happen, sooner or
later.
Randall, 302 F.3d at 210-11 (citations and internal quotation marks omitted).

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In the present case, Plaintiff argues that the officers engaged in a
“campaign of harassment” against him which culminated in the October
2008 assault and the April 2009 banning of the Plaintiff from City Housing
Authority property. Plaintiff contends that the two incidents which preceded
the October 2008 assault -- the March 2008 arrest for obtaining property by
false pretenses and the July 2008 arrest for disorderly conduct -- were
sufficient to put the City on notice of its officers’ unconstitutional behavior
such that municipal liability should attach. [Doc. 29 at 3-7].
The prototypical “widespread practice” argument focuses on “the
application of the policy to many different individuals.” Phelan v. Cook
County, 463 F.3d 773, 789 (7th Cir. 2006); see also Spell, 824 F.2d at
1393 (relying on testimony of several lay witnesses who “observed or
directly experienced acts of brutality by city officers of the type charged to”
the defendant). Here, Plaintiff makes no allegation that other individuals
were subjected to excessive force or First Amendment violations by City
officers. Rather, he seeks to establish the requisite “widespread practice”
by citing the various actions taken against only him by the Individual
Defendants as part of their alleged “campaign of harassment.”

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The Court agrees with the Magistrate Judge that the Plaintiff’s factual
allegations are insufficient to state a plausible claim of a “widespread”
practice of unconstitutional conduct. As the Seventh Circuit Court of
Appeals has stated:
[T]he word “widespread” must be taken seriously. It
is not enough to demonstrate that policymakers could,
or even should, have been aware of the unlawful
activity because it occurred more than once. The
plaintiff must introduce evidence demonstrating that
the unlawful practice was so pervasive that
acquiescence on the part of policymakers was
apparent and amounted to a policy decision.
Phelan, 463 F.3d at 790. While the Plaintiff alleges that he was subjected
to a “campaign of harassment” culminating in a brutal assault on October
2008 and his subsequent ban from City Housing Authority property in April
2009, Plaintiff has failed to allege any causal link between his prior
encounters with the Defendants and the specific constitutional deprivations
he alleges that he subsequently suffered. “[A] plaintiff cannot rely upon
scattershot accusations of unrelated constitutional violations to prove either
that a municipality was indifferent to the risk of [his] specific injury or that it
was the moving force behind [his] deprivation.” Carter v. Morris, 164 F.3d
215, 218 (4th Cir. 1999); see also Phelan, 463 F.3d at 790 (dismissing §
1983 claim against county where plaintiff “failed to weave . . . separate
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incidents [of sexual harassment and gender discrimination] into a
cognizable policy”).
For these reasons, the Court agrees with the Magistrate Judge that
Plaintiff’s general allegations of police misconduct during his prior arrests
are insufficient to create the plausible inference that the officers’ conduct
was so “widespread and pervasive” and “permanent and well-settled” as to
amount to a municipally-condoned custom or usage. Accordingly, the
Court accepts that the Magistrate Judge’s recommendation that the
Plaintiff’s § 1983 claims against the City arising under a theory of a
condoned custom be dismissed.
2.

Deficient Training Theory

“The way in which a municipal police force is trained, including the
design and implementation of training programs and the follow-up
supervision of trainees, is necessarily a matter of ‘policy’ within the
meaning of Monell.” Spell, 824 F.2d at 1389. In order for a municipality to
be liable under a deficient training theory, a plaintiff must establish
deficiencies which “rise to at least the degree of deliberate indifference to
or reckless disregard for the constitutional rights of persons within police
force jurisdiction.” Semple v. City of Moundsville, 195 F.3d 708, 713 (4th

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Cir. 1999). The plaintiff must identify a specific deficiency in the officers’
training; an allegation of general ineffectiveness is not sufficient.
See Spell, 824 F.2d at 1390. “The deficiency also must make the
occurrence of the specific violation a ‘reasonable probability rather than a
mere possibility’ when the exigencies of police work are considered.”
Semple, 195 F.3d at 713; Spell, 824 F.2d at 1390. Thus, there must be a
“direct causal connection” between the specific deficiency identified and the
alleged constitutional injury. Semple, 195 F.3d at 713. As with a claim of a
municipally-condoned custom, proof of a single incident of unconstitutional
conduct is insufficient to prove the existence of a municipal “policy” of
deficient training. Spell, 824 F.2d at 1391; see Tuttle, 471 U.S. at 823-24,
105 S.Ct. 2427.
Plaintiff alleges that in recommending dismissal of his deficient
training claims, the Magistrate Judge ignored his allegations that Sergeant
Yelton, a supervising officer, approved of and failed to correct the
misconduct of the officers who arrested Plaintiff during the July 2008 and
October 2008 incidents. [Doc. 29 at 7]. These allegations, even if
assumed to be true, do not establish a deficient training policy on the part
of the City. At best, these allegations establish that Sergeant Yelton (1)

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supervised the July 2008 traffic stop during which Plaintiff’s son was
threatened by a police officer and (2) supervised and participated in the
October 2008 assault on Plaintiff. Plaintiff does not allege Sergeant Yelton
has final authority to act on behalf of the City. See Spell, 824 F.3d at 1390
(noting that “a training policy is fairly attributed to a municipality when it is
designed, implemented, and its trainees supervised by municipal officials to
whom the governing body has effectively delegated final authority so to
act”). Merely identifying the highest-ranked officer present at the scene of
an unlawful arrest does not give rise to a plausible inference of municipal
liability. See White v. Town of Chapel Hill, 899 F. Supp. 1428, 1432
(M.D.N.C. 1995) (dismissing claim of municipal liability based on presence
and decision-making of police chief at scene of alleged constitutional
violation).
Plaintiff has failed to set forth sufficient facts to state a plausible claim
for deficient training against the City under § 1983. As noted by the
Magistrate Judge, Plaintiff has failed to identify any specific training
deficiency that is “fairly attributable” to the City. See Spell, 824 F.2d at
1390. Furthermore, Plaintiff has failed to allege the requisite causal link

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between any deficiency in the City’s training and the constitutional
deprivations alleged. See id.
Accordingly, the Court accepts the Magistrate Judge’s
recommendation regarding the dismissal of these claims, and Plaintiff’s
objections are overruled.
C.

Substantive Due Process Claim

Finally, the Plaintiff argues that the Magistrate Judge erred in
concluding that Plaintiff’s substantive due process claim under the North
Carolina Constitution should be dismissed. [Doc. 29 at 7-17].
A plaintiff may pursue an action directly under the North Carolina
Constitution only where the plaintiff lacks a remedy under state law
adequate to redress the alleged violation. Craig ex rel. Craig v. New
Hanover Cnty. Bd. of Educ., 363 N.C. 334, 338, 678 S.E.2d 351, 354
(2009); Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289
(1992). “[T]o be considered adequate in redressing a constitutional wrong,
a plaintiff must have at least the opportunity to enter the courthouse doors
and present his claim.” Copper ex rel. Copper v. Denlinger, 363 N.C. 784,
789, 688 S.E.2d 426, 429 (2010) (quoting Corum, 363 N.C. at 339-40, 678
S.E.2d at 355).

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Here, the application of governmental immunity has not barred
Plaintiff from “enter[ing] the courthouse doors.” While Plaintiff’s claims
against the Individual Defendants in their official capacities have been
dismissed, the Plaintiff’s state law claims against these Defendants in their
individual capacities remain viable. Under these circumstances, the Court
cannot say that the inability to pursue a negligence claim against these
Defendants in their official capacities deprives Plaintiff of an adequate
remedy at state law for redressing his alleged injuries. See GlennRobinson v. Acker, 140 N.C. App. 606, 632, 538 S.E.2d 601, 619 (2000)
(holding that presence of state law claims against officer in his individual
capacity constitutes adequate remedy at state law), disc. rev. denied, 353
N.C. 372, 547 S.E.2d 811 (2001); Johnson v. Causey, No. COA09-1712,
2010 WL 4288511, at *10 (N.C. Ct. App. Nov. 2, 2010) (same).
Accordingly, the Court accepts the Magistrate Judge’s recommendation
that Plaintiff’s substantive due process claim under the North Carolina
Constitution should be dismissed.

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V.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Written Objections

to the Memorandum and Recommendation [Doc. 29] are OVERRULED,
and the Magistrate Judge’s Memorandum and Recommendation [Doc. 28]
is ACCEPTED.
IT IS FURTHER ORDERED that the Defendants’ Motion to Dismiss
and for Judgment on the Pleadings [Doc. 21] is GRANTED, and the
following claims set forth in the Plaintiff’s Amended Complaint are hereby
DISMISSED:
(1)

The claims brought pursuant to 42 U.S.C. § 1983 against
Defendants Yelton, Sheehan, Mitchell, Hunter, and Stover
in their official capacities;

(2)

The claims brought pursuant to 42 U.S.C. § 1983 against
the City of Asheville;

(3)

The North Carolina tort claims of negligence, gross
negligence, trespass by a public officer, and malicious
prosecution brought against the City and the Individual
Defendants in their official capacities; and

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(4)

The claim asserted in the Sixth Claim for Relief for
deprivation of substantive due process in violation of the
North Carolina Constitution.

This case shall proceed on the Plaintiff’s § 1983 and state law tort claims
against the Individual Defendants in their individual capacities.
IT IS FURTHER ORDERED that the parties shall conduct an Initial
Attorneys’ Conference within fourteen (14) days of this Order and file a
Certificate of Initial Attorneys’ Conference with the Court within seven (7)
days thereafter.
IT IS SO ORDERED.
Signed: August 16, 2011

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