Bailey et al v. Polk County, North Carolina et al
MEMORANDUM OF DECISION AND ORDER granting 21 Polk County, Polk County Sheriffs Partial Motion to Dismiss; adopting Memorandum and Recommendations re 24 Memorandum and Recommendations; denying 28 Pltfs' Motion for Le ave to File Amended Complaint; parties shall file supplemental briefs on or before 10/14/11 addressing whether Pltf Huntley's remaining § 1983 claim for false arrest has abated (see order for full details). Signed by District Judge Martin Reidinger on 9/29/11. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:10cv264
MAX BAILEY; MARGARET DALTON;
CASEY JOE HUNTLEY, as personal
representative of the Estate of CARLTON BILL
HUNTLEY, deceased; K.C., by his mother and
next friend, Margaret Dalton; A.D., by her
grandmother and next friend, Margaret Dalton;
and STEVE MARLOWE,
POLK COUNTY, NORTH CAROLINA; POLK
COUNTY SHERIFF’S DEPARTMENT; MATT
PRINCE; TRENT CARSWELL; CHRIS ABRIL;
CHARLES GRADY SHEHAN; UNKNOWN
POLICE OFFICERS; and OTHER UNKNOWN
STATE AND FEDERAL LAW ENFORCEMENT
MEMORANDUM OF DECISION AND ORDER
THIS MATTER is before the Court on the Partial Motion to Dismiss
Complaint filed by Polk County, Polk County Sheriff’s Department, Chris Abril,
Matt Prince, and Trent Carswell [Doc. 21]; the Magistrate Judge’s
Memorandum and Recommendation [Doc. 24] regarding the disposition of
that motion; and Plaintiffs’ Motion for Leave to File Amended Complaint [Doc.
On November 10, 2010, the Plaintiffs Max Bailey (“Bailey”), Margaret
Dalton (“Dalton”), Carlton Bill Huntley (“Huntley”), minors K.C. and A.D., and
Steve Marlowe (“Marlowe”) filed this action asserting claims under 42 U.S.C.
§ 1983 and North Carolina law against Polk County, the Polk County Sheriff’s
Department (“Sheriff’s Department”), Polk County Sheriff Chris Abril (“Sheriff
Abril”), Polk County Sheriff’s Department employees Matt Prince (“Prince”)
and Trent Carswell (“Carswell”), informant Charles Grady Shehan (“Shehan”),
and unknown police officers and other unknown state and federal law
enforcement agencies (collectively, “John Doe Defendants”), for actions
relating to the execution of three search warrants on November 13, 2007.
[Doc. 1]. The Plaintiffs’ Complaint asserts the following claims for relief:
False arrest in violation of 42 U.S.C. § 1983, asserted by all
Plaintiffs against all Defendants (Count 1);
Unreasonable detention and confinement in violation of 42
U.S.C. § 1983, asserted by all Plaintiffs against all
Defendants (Count 2);
Unreasonable search in violation of 42 U.S.C. § 1983,
asserted by all Plaintiffs against all Defendants (Count 3);
Conspiracy, in violation of 42 U.S.C. § 1983, asserted by all
Plaintiffs against all Defendants (Count 4);
Deprivation of constitutional rights pursuant to an unlawful
policy or custom in violation of 42 U.S.C. § 1983, asserted
by all Plaintiffs against Sheriff Abril, the Sheriff’s
Department, and the Unknown State and Federal Law
Enforcement Agencies (Count 5);
False arrest and imprisonment in violation of North Carolina
law, asserted by Plaintiffs Bailey, Dalton, Huntley, K.C., and
A.D. against Prince, Carswell, and the Unknown Police
Officers and against the Sheriff’s Department, Sheriff Abril,
and the Unknown State and Federal Law Enforcement
Agencies under the doctrine of respondeat superior (Count
Assault in violation of North Carolina law, asserted by
Plaintiffs Huntley, Dalton, K.C., and A.D. against Carswell
and the Unknown Police Officers and against the Sheriff’s
Department, Sheriff Abril, and the Unknown State and
Federal Law Enforcement Agencies under the doctrine of
respondeat superior (Count 7);
Battery in violation of North Carolina law, asserted by
Plaintiffs Huntley and Bailey against Carswell and the
Unknown Police Officers and against the Sheriff’s
Department, Sheriff Abril, and the Unknown State and
Federal Law Enforcement Agencies under the doctrine of
respondeat superior (Count 8);
Intentional infliction of emotional distress in violation of
North Carolina law, asserted by all Plaintiffs against all
Defendants (Count 9);
Property damage in violation of North Carolina law,
asserted by Plaintiffs Bailey, Marlowe, and Huntley against
all Defendants (Count 10); and
Municipal liability under 42 U.S.C. § 1983, asserted by all
Plaintiffs against Polk County (Count 11).
[Doc. 1]. All of the individual Defendants were sued in both their official and
On January 25, 2011, the Defendants moved to dismiss all of the
Plaintiffs’ claims, with the exception of Huntley’s claim against Carswell in his
individual capacity for false arrest under 42 U.S.C. § 1983, as stated in Count
1, and Huntley’s state law claims against Carswell for false arrest and
imprisonment, assault, battery, and intentional infliction of emotional distress,
as stated in Counts 6 through 9. [Doc. 21]. Plaintiffs filed a Response,
opposing the Defendants’ motion. [Doc. 22].
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’ motion and to submit to
this Court a recommendation for the disposition of this motion. On March 7,
2011, the Magistrate Judge filed a Memorandum and Recommendation,
recommending that the Defendants’ motion be granted. [Doc. 24]. The
parties were advised that any objections to the Magistrate Judge's
Memorandum and Recommendation were to be filed in writing within fourteen
(14) days of service. [Id.].
On March 21, 2011, the Plaintiffs filed a “Response” to the
Memorandum and Recommendation, stating that they did not object to the
dismissal of the claims against Polk County, the Sheriff’s Department, and the
official capacity claims against Sheriff Abril, Carswell, and Prince. [Doc. 25].
With respect to the other claims stated in the Complaint, the Plaintiffs
indicated that they would be filing a motion for leave to amend the Complaint.
The Plaintiffs requested that the Court hold the Magistrate Judge’s
Recommendation in abeyance pending resolution of the motion to amend.
On April 5, 2011, the Plaintiffs filed their motion seeking leave to amend
the Complaint. [Doc. 28]. The stated purpose of this amended pleading was
“to provide more detailed factual allegations that could aid in resolving the
case on the merits, and to address deficiencies in the original complaint
identified in the Magistrate Judge’s recommendations.” [Doc. 30 at 2]. While
eliminating the claims asserted against Polk County and the Polk County
Sheriff’s Department, the Proposed Amended Complaint otherwise asserts the
same claims for relief as asserted in the original Complaint but with additional
Also on March 21, 2011, the Plaintiffs filed an unopposed motion to substitute
Casey Joe Huntley, the Personal Representative of the Estate of Carlton Bill Huntley,
for the Plaintiff Carlton Bill Huntley, who died on December 21, 2010. [Doc. 26]. The
Plaintiffs’ motion for substitution was granted on April 4, 2011. [Doc. 27].
factual allegations in support of these claims.2 [Doc. 28-1]. Additionally, the
Proposed Amended Complaint names thirteen additional law enforcement
officers, including twelve Sheriff’s Department employees, and one City of
Columbus Police Department officer, as Defendants. While the Plaintiffs
assert in their motion to amend that these newly named Defendants are being
substituted for the John Doe Defendants named in the original Complaint
[Doc. 30 at 3], the Proposed Amended Complaint still names “Unknown Police
Officers” an “Other Unknown State and Federal Law Enforcement Agencies”
as Defendants [Doc. 28-1].
A party may amend its own pleading once as a matter of course within
twenty-one days after service of a responsive pleading or twenty-one days
after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Fed. R. Civ. P. 15(a)(1)(B). In all other cases, a party may amend only with
the consent of the opposing party or with leave of Court. Fed. R. Civ. P.
Although the Plaintiffs indicated in their “Response” to the Memorandum and
Recommendation that they did not oppose dismissal of their official capacity claims, the
Proposed Amended Complaint still asserts claims against Sheriff Abril, Carswell, and
Prince in their official capacities. [See Doc. 28-1 at ¶¶10-12].
Ordinarily, the Court “should freely give leave when justice so requires.”
Id.; Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
W hile leave should be given freely, the Court in its discretion may deny a
motion to amend where there has been “a showing of prejudice, bad faith,
futility, or dilatoriness associated with the motion.” Sandcrest Outpatient
Servs., P.A. v. Cumberland County Hosp. Sys., Inc., 853 F.2d 1139, 1148 (4th
Cir. 1988) (quoting Ward Elec. Serv. v. First Comm. Bank, 819 F.2d 496, 497
(4th Cir. 1987)). “Although delay alone is insufficient to justify the denial of
leave to amend, delay accompanied by bad faith is not.” Ferguson v. Maita,
162 F.Supp.2d 433, 441 (W.D.N.C. 2000). “Where the facts upon which a
new claim [is] based were known at the time of the original complaint . . ., it
is not an abuse of discretion to find bad faith.” Id.; see also Al-Abood ex rel.
Al-Abood v. El-Shamari, 217 F.3d 225, 234 (4th Cir. 2000). Moreover, where
a motion to amend is filed in an attempt to circumvent a dispositive motion,
leave to amend need not be granted. See Googerdy v. N.C. Agric. and
Technical State Univ., 386 F.Supp.2d 618, 623 (M.D.N.C. 2005).
In the present case, the Plaintiffs had twenty-one days from the filing of
the Defendants’ motion to dismiss to file an amended complaint as of right.
See Fed. R. Civ. P. 15(a)(1)(B). In fact, the Plaintiffs acknowledged in their
Response the need to amend their Complaint in light of the Defendants’
motion. [See Doc. 22 at 7, 8]. Despite having the unilateral right to do so, the
Plaintiffs failed to amend their Complaint within the time required, thus
requiring the Court to rule on the Motion to Dismiss.
As noted by the
Magistrate Judge in the Memorandum and Recommendation, “plaintiffs could
have well resolved other issues raised in the Partial Motion to Dismiss by
carefully amending its Complaint, including the naming of John Doe
Defendants. By not taking unilateral action, plaintiffs have necessitated the
court taking up the merits of the motion.” [Doc. 24 at 24 n.3].
In their Proposed Amended Complaint, the Plaintiffs do not assert any
newly discovered facts, nor do they advance any new legal theories. Indeed,
they admit that the newly pled allegations are based upon information made
available to them during the underlying state court proceedings, which took
place in 2008. For example, Plaintiffs cite as a source for their newly pled
allegations a “photocopied, handwritten list of names of officers who
participated in the raids” that was disclosed to Plaintiff Marlowe in the course
of discovery in the state criminal proceedings. [See Doc. 30 at 3].3 In addition
Plaintiffs contend that because this list “was illegible in places, and replete with
spelling errors,” Plaintiffs’ counsel chose to identify these officers as “Unknown Officers”
in the original Complaint, apparently anticipating that the list of officers “could be more
accurately delineated through discovery, and the complaint then amended to conform to
that evidence.” [Id.]. Discovery, however, was evidently not required to identify such
officers, as the Plaintiffs’ Proposed Amended Complaint, which was prepared in
response to the Memorandum and Recommendation and without the benefit of
discovery, “names all of those officers listed, with spellings approximated to the best of
to relying on the list of officers, Plaintiffs’ new factual allegations rely upon the
testimony provided at the suppression hearing held by the Polk County
Superior Court in the underlying state criminal proceedings as well as the
discovery provided by the officers in that case. [See Doc. 32 at 2]. All of this
information -- the list of officers, the discovery provided in the criminal action,
and the suppression hearing testimony -- was readily available to the Plaintiffs
prior to the filing of the original Complaint. The fact that this information was
available to Plaintiffs even before the commencement of this action leads to
the Court to conclude that the Plaintiffs’ proposed amendment is not only
dilatory but also lacking in good faith. See Ferguson, 162 F.Supp.2d at 441.
Perhaps most troubling to the Court, however, is the fact that Plaintiff’s
motion to amend was filed in an obvious attempt to circumvent the
recommendation of the Magistrate Judge regarding the disposition of the
Defendants’ partial motion to dismiss. See Googerdy, 386 F.Supp.2d at 623.
In responding to the motion to dismiss, Plaintiffs admitted to the existence of
numerous deficiencies in their Complaint and acknowledged the need to
amend their pleading; however, they did not make any attempt to do so,
despite being entitled to amend as of right within twenty-one days of the filing
counsel’s abilities, and further alleges specific activities undertaken by certain of those
officers.” [Id.]. Thus, by Plaintiffs’ own admission, it appears that this list, as provided,
enabled the Plaintiffs to identify adequately the officers involved.
of the motion to dismiss.
Having failed to amend their pleading and to
address the deficiencies identified by the Defendants, the Plaintiffs left the
Court with no option but to address the motion to dismiss on its merits. In so
doing, the Magistrate Judge engaged in an exhaustive and thorough analysis
of each of the Plaintiffs’ eleven causes of action, examining the allegations
regarding each of the three searches and the actions of each of the individual
Defendants with respect to each Plaintiff. After carefully analyzing each of the
Plaintiffs’ claims and the factual allegations made in support thereof, the
Magistrate Judge issued his recommendation that the Defendants’ motion to
dismiss be granted in its entirety. The Plaintiffs offered no objection to the
Magistrate Judge’s proposed conclusions of law, but instead filed their motion
to amend, seeking to address the deficiencies identified by the Magistrate
Judge in his analysis.
To allow the Plaintiffs to amend their Complaint at this stage of the
proceedings, after the Magistrate Judge has issued a formal recommendation
regarding the disposition of a dispositive motion, would not only prejudice the
Defendants, who have expended the time and expense of fully briefing a
motion to dismiss; it “would encourage dilatory practices on the part of
plaintiffs in delaying motions for leave to amend until after they have the
benefit of a Magistrate Judge’s opinion rather than at the time the new
information is discovered.”
Glazer v. Chase Home Finance LLC, No.
1:09CV1262, 2010 WL 1391318, at *1 (N.D. Ohio Mar. 31, 2010). Moreover,
allowing such amendment would “impermissibly place a federal judge in the
position of rendering advisory opinions.” Id. The referral of a dispositive
motion to the Magistrate Judge for a recommendation as to its disposition is
not intended to provide the parties with a advisory ruling on the sufficiency of
their pleadings. Rather, it is a mechanism by which the Magistrate Judge can
evaluate the merits of a dispositive motion and make recommendations to the
District Court regarding its disposition. Once a Magistrate Judge has made
a recommendation, the parties must file properly supported objections in order
to obtain de novo review by the District Court. See Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Plaintiffs’ proposed amendment, however, would
render this entire procedure a nullity. See Googerdy, 386 F.Supp.2d at 623
(“To allow amendment each time a complaint is challenged would wreak
havoc on the judicial system by adding substantial delay and undermining the
Federal Rules of Civil Procedure.”).
The Plaintiffs argue that the Proposed Amended Complaint is neither
dilatory nor in bad faith because, as acknowledged by the Defendants, some
of the causes of action asserted therein state valid claims and therefore the
amendment would not be futile. [Doc. 32 at 2]. The futility of the proposed
amendment, however, is not the issue.
Plaintiffs seek to amend their
Complaint based on facts which were available to them prior to the filing of
this action, which demonstrates that the proposed amendment is both dilatory
and in bad faith. Further, they delayed filing a motion to amend until after the
Magistrate Judge issued a Memorandum and Recommendation regarding the
disposition of the Defendants’ motion to dismiss, which demonstrates that the
recommendation regarding the disposition of Defendants’ dispositive motion.
It is for these reasons -- not because of the futility of the proposed
amendments -- that the Court finds that Plaintiffs’ motion to amend should be
Finally, the Plaintiffs argue that their motion to amend should be allowed
because the Fourth Circuit has expressed a “strong policy that cases be
decided on the merits and that dismissal without deciding the merits is the
most extreme sanction.” [Doc. 32 at 2 (citing United States v. Shaffer Equip.
Co., 11 F.3d 450, 462 (4th Cir. 1993)]. The Shaffer case upon which the
Plaintiffs rely is entirely distinguishable from the instant case. In Shaffer, the
district court invoked its inherent power to dismiss a case with prejudice based
upon the misconduct and lack of candor of plaintiff’s counsel. Id. at 452.
Noting that dismissal under these circumstances was “the most extreme
sanction,” the Fourth Circuit reversed, finding that the district court’s
objectives of punishing the wrongdoers, deterring similar future conduct, and
compensating the defendant could be achieved by a lesser sanction short of
dismissal. Id. at 462-63. In the present case, however, Plaintiffs’ claims are
not being dismissed as a sanction for any misconduct. Rather, the Court has
been presented with a properly supported motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), as well as a recommendation from
the Magistrate Judge regarding the disposition of that motion to which no
objections were filed. It is on the basis of the Defendant’s motion -- and the
Magistrate Judge’s Recommendation -- that the Court dismisses the Plaintiffs’
claims. The disfavor expressed in Shaffer regarding the dismissal of actions
as a sanction for litigation misconduct is simply inapplicable to this case.
With the adoption of the Magistrate Judge’s Memorandum and
Recommendation, and with the denial of the Plaintiffs’ motion to amend, the
only federal claim remaining before the Court is the § 1983 claim for false
arrest originally asserted by Plaintiff Carlton Bill Huntley against Defendant
Carswell. Following Carlton Bill Huntley’s death on December 21, 2010, the
personal representative of his estate, Casey Joe Huntley, was substituted as
a party plaintiff. [Doc. 27]. The Defendants contend that this remaining
federal claim abated upon the death of Carlton Bill Huntley. [See Doc. 31 at
3 n.1].4 If the Defendants are correct and the only federal claim remaining has
abated, the Court in the exercise of its discretion may decline to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C.
Due to the procedural posture of this case, these jurisdictional issues
have not been addressed in any formal manner by the parties.
deciding whether this claim has abated, and whether supplemental jurisdiction
should continue to be exercised, the Court will afford the parties the
opportunity to address these issues by way of supplemental briefing.
After a careful review of the Magistrate Judge's Recommendation, the
Court finds that the proposed conclusions of law are consistent with current
case law. Accordingly, the Court hereby accepts the Magistrate Judge's
Recommendation that the Defendants’ motion to dismiss be granted. The
Plaintiffs’ motion for leave to file an amended complaint is hereby denied.
The Defendants merely raise this contention in a footnote in their response to
the Plaintiffs’ Motion to Amend and do not seek any formal adjudication of the claim.
Plaintiffs do not address the abatement issue in their reply brief.
IT IS, THEREFORE, ORDERED
Memorandum and Recommendation [Doc. 24] is ACCEPTED, and the Partial
Motion to Dismiss Complaint by Polk County, Polk County Sheriff’s
Department, Chris Abril, Matt Prince, and Trent Carswell [Doc. 21] is
GRANTED as follows:
The Plaintiffs’ claims for relief against Polk County and the
Polk County Sheriff’s Department are DISMISSED;
The Plaintiffs’ claims for relief against Defendants Abril and
Prince in both their individual and official capacities are
The Plaintiffs’ claims for relief against Defendant Carswell
in his official capacity are DISMISSED;
The Plaintiffs’ claims for relief against Defendant Carswell
in his individual capacity, with the exception of those claims
asserted by Plaintiff Huntley for false arrest under 42 U.S.C.
§ 1983 as set forth in Count 1 and for false arrest and
imprisonment, assault, battery, and intentional infliction of
emotional distress under state law as set forth in Counts 6
through 9 are DISMISSED.
IT IS FURTHER ORDERED that the Plaintiffs’ Motion for Leave to File
Amended Complaint [Doc. 28] is DENIED.
IT IS FURTHER ORDERED that on or before October 14, 2011, the
parties shall file supplemental briefs with the Court addressing whether
Plaintiff Huntley’s remaining § 1983 claim for false arrest has abated and if so,
whether this Court should decline to exercise supplemental jurisdiction over
the remaining state law claims. Such briefs shall not exceed ten (10) pages
length and shall be double spaced and in fourteen (14) font.
IT IS SO ORDERED.
Signed: September 29, 2011
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